The Mankato free press. [volume] (Mankato, Blue Earth County, Minn.) 1879-1924, 1923-08-24
ORDER OF JUDGE
GIVEN IN DETAIL
Case Establishes Prece-
dent In Minnesota
APPEAL IS LIKELY
Decree Holds For Minor; Blue
Earth County
Action

An order was issued in Blue
Earth county district court yester-
day afternoon by Judge w. L. Com
stock which establishes a precedent
in the matter OF an adopted child's
right to inherit from It's natural
and lawful parents, when a decision
was handed down in a case appeal
ed from an order and final decree
OF the probate court OF Blue Earth
county.
The case Is the first of it's kind
ever decided in the state of Mime
sofa, and one of the very few which
have been decided in other states of
the union.
Attorneys in all parts of the state
have interested themselves in the
case, because of the matter it in
wolves. In his decision of the case
Judge Comstock reserses the order
and Anal decree Of the probate court
and remands the case back to pro-
bate court with directions to the
court to modify such order and de-
cree to recognize the right Of the
adopted child as an heir at law Of
her natural father.
Title Of Case
The case is in the matter of the
estate of Henry r. Roberts, de-
ceased, with Martha Roberts as the
appellant versus Elizabeth A. Rob-
erts, Owen L. Roberts and Katie NJ.
Thomas and David L. Davis and
William r. Roberts, administrators
of the estate of Henry L. Roberts.
The history of the case goes back
to 1898 when Martha Roberts, the
appellant was five years old. Fol
lowing the death of her mother at
that age, she was lawfully adopted
by Mr.. and Mrs. John d. Thomas
with the written consent OF her
father, Henry L. Roberts.
In 1900 both Of the adopted par
ents of Martha Roberts died, be-
queathing their property to Martha
Roberts and two other natural
children. Henry L. Roberts after
the death of his first wife later re-
married apd had two children
Owen l.. Roberts and Katie M. Rob
erts.
Henry L. Roberts died in 1920
and in 1921 a petition was filed in
probate court by his wife Elizabeth
A. Roberts for the administration
of the estate, valued at $39, 400,
naming the heirs at law.
An Appeal 10 Likely
In March, 1922, a final decree as
signing the residue of the estate to
Elizabeth Roberts, owen L. Rob-
erts and Katie M. Roberts. the lat
ter than Katie NJ. Thomas and no
part of the real : estate and per-
sonaI property was assigned 10
Martha Roberts the appellant. The
anpeal in the case was taken from
this final decree.
The case is Of much Importance
and involves so many technicaA
noints of law that attorneys in.
volyed in the case state that 1t Will
undoubtedly be appealed to the
state supreme court.
Judge Comstock in making MS
decision goes back to quote from
the laws of Moses stating that In
that time the laws established the
right of inheritance by decent WIN
in a family was recognized. He also
states that the Arabic, Athenian,
Hebrew and Roman laws all treat.
ed inheritance as natural rlgnt
subjected to statutes or decrses
promulgated from time to time. Ine
Justinian Code, he says, DESTROYED
ali preference among the males ana
ali distinction between the sexes IN
the matter of inheritance.
The following is the opinion OF
Judge Comstock expressed IN the
order, verbatim:
REGARDING the Issues
1.-THE issues submitted are 10 %
determined wholly within the rulss
Of law and although counsel IN tneir
argument in the case discuss 10 soLe
oil anI1ffleS
ist;ng between the parties or to be
Considered as indicated by their rela-
five BENEFITS arising from the mat
ters involved. nevertheless any in
eoualities resulting from q deter
mination and application of the rules
of law is not for judicial considera-
tior in such case but Is rather
legislative responsibility.
"The rights Of inheritance by des-
cent within the family has been re-
cognized by the most ancient law :,
SThe law of Moses established
such right with certain privileges
and limitations declared by Its
terms. The Arabic, Athenian, He.
brew and Roman laws all treated
inheritance as q natural right sub
iect only to statutes or DEGREES pro
mulgated from time to time. The
.Justinian Code destroyed all rTeIer
ence among the males and all dis
tinction between the sexes In re-
spe ct to the law Of descent and ad-
mitted males and females to an
equality in the right OF succession
and preferred legal descendants 10
collateral relations.
at is apparent that thereby the
right of inheritance by descent was
established and recognized as law
of succession and adhered strictly
to the doctrine Of representation and
in such respect bore a striking.
+, though not entirely exact, resem :
blance to the early rule OF fnherl-
lance prevailing in our American
law.
aBy So called fiction of the Roman
civil law the estate instead or being
changed by the descent was deemed
to continue in the heir who succeed =
ed to the person and place and es-
tate of the ancestor and to all his
rights and obligations. The heir
is therefore under the civil law
said to represent the moral person
of the intestate; his substitution to
the ancestor was a kind of contin :
ual succession. The same princi-
pie seems to have extended into the
different American states subject
only to statutory limitations and
qualifications.
Inheritance BY Descent
1--WE think therefore that inher1
lance by descent has been SUM-
GENTLY proclaimed as a natural right
Of succession within the descending