Fletcher v. Flanary, Virginia Supreme Court 1946: Rights of Adopted Child to Inherit

There are a considerable number of court cases in the United States that deal with genealogically related issues. From time to time, I have decided to discuss some of these cases that have decided matters that affect genealogy either directly or indirectly.

The case of Fletcher v. Flanary, 185 Va. 409, 411-12, 38 S.E.2d 433, 434 (1946) deals with the "construction of a deed in which the grantor conveyed to his son a life estate and at the life tenant's death to his children, and in case he should die without issue, to his next of kin on his father's side. The grantor died intestate and the life tenant, after having adopted a son, likewise died intestate. A portion of the land conveyed was condemned and the proceeds were claimed by children of the grantor and by the adopted son." The Virginia Supreme Court held that by the use of the word "issue" the grantor meant a lineal descendant and not an adopted child.

The heading and complete caption of the case is shown in the following screenshot:

The deed in question here was made in 1908, The pertinent provisions of the deed, as set forth by the Court were as follows:

This Deed made this the 15th day of May, in the year of 1908, by and between P. J. Brown (Widowed) party of the first part, and Geo. M. Brown and his children, party of second part, Witnesseth: That for and in consideration of the natural affection that the said P. J. Brown has for his son, the said Geo. M. Brown, and in further consideration of the sum of One Dollar, in hand paid, the receipt of which is hereby acknowledged, the said P. J. Brown doth hereby grant and convey with covenants with general warranty of title unto the said Geo. M. Brown, during his natural life, and at his death to his children, if any, and if the said Geo. M. Brown should die without children then to his next of kin, on his father's side, all of the following three tract of land, (reserving however, from this conveyance the life time control of the lands herein conveyed). Possession of the same is to remain in the said P. J. Brown during life.

Both land and property records and probate records are valuable resources for research genealogists. But frequently, these types of records contain language that is unfamiliar to researchers unschooled in legal terminology. The deed here granted certain real property from a father to a son. The term "to grant" is defined as follows by TheFreeDictionary.com,

Grant
To confer, give, or bestow. A gift of legal rights or privileges, or a recognition of asserted rights, as in treaty.
In the law of property, the term grant can be used in a deed to convey land, regardless of the number and types of rights conferred or the promises made by the transferor to the transferee. It is a comprehensive term that encompasses more specific words of transfer, such as assign, bargain, and devise.

The basic issue in the Fletcher case, cited above, was whether or not this "grant" was confined to the the legal "issue" of the grantee, that is his lineal descendants. The Court here had to decide whether or not, considering the adoption statutes then in effect, the adopted child of George M. Brown could inherit the land previously conveyed by the deed. In my opinion, the case was decided on the basis that the deed transferred the property at the time it was executed and recorded and therefore the land was not considered part of the decedent's estate. The Court cited the adoption statute, as follows, to support this conclusion.

This statute was amended from time to time, Acts of 1893-4, page 75; Acts of 1897-8, page 38; Acts of 1910, page 466; Acts of 1920, page 514; Acts of 1922, page 839; Acts of 1936, page 542; and finally was amended by a comprehensive act dealing with adoption, which repeals all previous acts and which declares in part: 

"For the purpose of descent and distribution, a legally adopted child shall inherit, according to the statutes of descent and distribution from and through both the natural parents and the parents by adoption from the time of entry of an interlocutory order. If an adopted child shall die intestate, without issue surviving him, his property shall pass, according to the statutes of descent and distribution, to those persons who would have taken had the descendant been the natural child of the adopting parents; provided, however, that any property, real or personal, derived by deed, or by gift, or by will, or by inheritance, from the natural parents, or from either of them or their kindred, and capable of identification as such, shall pass, according to the statutes of descent and distribution, as if he had not been adopted." Acts 1942, chapter 205.

The Court further explained,

Geo. M. Brown died intestate and this adopted son has received from his estate exactly what he would have received had he been born in wedlock -- $40,000. That which is now in litigation is not a portion of this foster father's estate. Adopted children take from their foster parents, who die intestate, what children born in wedlock would take, but they take nothing as heirs or distributees from remote ancestors. This adopted child takes nothing as an heir or distributee of P. J. Brown. Such rights as he has rest in the deed from P. J. Brown of date May 15, 1908...

After having given, as we have seen in the granting clause of this deed, a life estate to his son George, he added this habendum clause, "at his death to his children, if any, and in case he should die without issue", then to his next of kin on his father's side. Since the grant was already to the children there was no occasion to use the word "issue", if it were but a synonym for child. Every word in a deed is supposed to mean something. It was inserted here to make assurance doubly sure and to make his purpose in the granting part of his deed clear. That the word "issue" means lineal descendant finds support in all the dictionaries. In genealogy it connotes a common blood stream.

 In short, the adopted son received the proceeds of the estate directly from his adopted father, but as the Court decided he did not have any right to the property previously conveyed by the ancestor of his adoptive father.

Further case law which cited this case, such as Robertson v. Cornett, 359 Mo. 1156 (Mo. 1950) held that the language of a deed that the property should pass to natural and not adopted children would pass to the natural children as provided in the deed. The Fletcher case was further cited in the case of McGehee v. Edwards, 268 Va. 15 (Vs. 2004) where the Court held,

At common law, adopted persons were not included within the term "issue," because that term was limited to the "natural descendants of a common ancestor," Munday v. Munday, 164 Va. 145, 150, 178 S.E. 917, 919, (1935), was synonymous with lineal descendant, and connoted a "common blood stream." Fletcher v. Flanary, 185 Va. 409, 415, 38 S.E.2d 433, 435 (1946).

Genealogists who encounter such language must be familiar with the legal consequences of the wording of either a will or a deed to determine who was supposed to receive the property conveyed.