Cofer v. Scroggins

98 Ala. 342 | Ala. | 1893

HARALSON, J.

1. The question propounded to tbe defendant, on her examination as a witness, — “State whether or not yon were a resident of tbis county and State, and whether you intended to remain so, in December, 1888 ?— contains two inquiries, either of which might have been differently answered. The first, — whether she was a resident of this State, — is a collective fact, (Pollock v. Gantt, 69 Ala. 373; Hood v. Disston, 90 Ala. 379), and was legal and pertinent, as only residents are entitled to exemptions; the second, calling for her intentions was not.—Sternau v. Marx, 58 Ala. 608; Wilson v. Slate, 73 Ala. 527. But, it is a familiar rule, that where there is a general objection to evidence, as in this instance, a part of which is legal and another part illegal, it may be overruled.—R. & D. R. R. Co. v. Jones, 92 Ala. 225.

2. The questions allowed to be asked defendant, and excepted to by plaintiff,- — -“What were the improvements on said land in 1886, when Robert Jones left, and what were their condition, and whether any improvements have been made on the land since Jones left, by you, or for you?”. — were not improper, since answers to them might tend to show the value of the property, an important inquiry, in one phase of the case. The answer to the last question, — “A right smart improvements have been made in clearing and fencing;” — was a mere conclusion of facts, an inference necessarily involving facts as to the quantity of land cleared and fenced, which, as a collective fact, was properly allowable, subject to the cross-examination of the plaintiff, if he desired the matter stated more explicitly, or in detail.—S. & N. A. R. R. Co. v. McLendon, 63 Ala. 276; Hood v. Disston, 90 Ala. 379.

Besides, a sufficient answer to all these exceptions is, that if immaterial, they could not 'have influenced a jury in any way, since the court gave the general charge for the defendant, thereby withdrawing from the jury all consideration of the facts, except as to their belief of them, there being no conflict in the evidence. — 1 Gr. Ev. § 52.

3. There was no error in refusing to allow plaintiff to ask defendant, on her cross-examination, — “If Jones’ wife was on good terms with him, when he left, and, if she went with him?” Answer to the question was irrelevant to the principal fact or matter in dispute.

4. The declaration of claim of exemption, made and filed in the office of the judge of probate of Cullman county, in this State, was made and recorded in accordance with the statutes on the subject, and was relevant, since the statute makes it, thereafter, prima facie correct, and operative as notice of its contents.-; — Code, §§ 2515-2517, 2507 and 2537.

The statute makes the certified copy of such proceedings, (and these were properly certified), have the same effect as if the originals were produced and proved. But, in addition to the certified transcript, the defendant introduced, proved and read the original minute entries of this proceeding from the record book of the Probate Court, to which the plaintiff also objected. But, these objections were properly overruled, since either was sufficient.—Code, § 2488; Stephenson v. Moody, 85 Ala. 35.

5. A transcript of the proceedings in the Probate Court of Cullman county, duly certified, by- which defendant claimed to have been adopted as the child of Robert Jones, was offered and read in evidence, against the objection of the plaintiff. The proceedings were in close and satisfactory compliance with the statutory mode for the adoption of a child.—Code, § 2367; Abney v. DeLoach, 84 Ala. 393. The defendant also proved and read in evidence the original minute entry of said proceeding, from the record book from the Probate Court of said county. The transcript of the entry, or the original entry itself, was admissible. — Authorities supra.

6. The act of adoption of a child, has been defined to be, “One by which a person takes the child of another into his family and treats it as his own.” — 1 Amer. & Eng. Encyc. of Law, 204; “To receive or treat as a son or daughter, one who is the child of another.” — Worcester’s Die. ; “To take into one’s family as a son or heir; to take and treat as a child, giving a title to the privileges and rights of a child.”—Web. Dic.; Tilley v. Harrison, 91 Ala. 295; Russell v. Russell, 84 Ala. 48.

Our statute on the subject is: “Any person desirous to adopt a child so as to make it capable of inheriting his estate, real and personal, or to change the name of one previously adopted, may make a declaration in writing attested by two witnesses, * * * which being acknowledged by the declarant before the judge of probate of the county of his residence, * * has the effect to make such child capable of inheriting such estate of the declarant, and of changing its name to the one in the declaration.”

The primary object of the statute would seem to be, to .allow any person to adopt the child of another and make it capable of inheriting his estate, if he should die intestate, or to change the name of one previously adopted. But, a liberal intendment and operation should be given to the statute. Accordingly, we held on this subject, in another connection, that, “Though adoption may not, by operation of the statute, originate and establish all the legal consequences and inci-dent's of tbe natural relation of parent and child, when the adoptive father declares his own name, as the name by which he wishes the child to be thereafter known, and takes it into his family to be treated as a child, he assumes the duties of a natural parent, and is entitled to its custody and services, or earnings as against all persons, unless it may be, the true parents, when they have not consented to the adoption.”—Tilley v. Harrison, 91 Ala. 297. And so, our homestead exemption, deemed so important as to be made the subject of constitutional and legislative provision, is one in favor of the family, is founded in a spirit of humanity and benevolence, and the statutes on the subject, like the one providing for the adoption of a minor, are to be liberally construed.—3 Brick. Dig., 490, § 2; Thompson on Homestead, §§ 47, 131. Applying such construction to our homestead and exemption laws, we hold, that an adopted child, as a natural one, is entitled, during minority, to this claim of exemption.

7. The judgment in this case is one of exemption to the defendant,' “so long as said Mary J. Scroggins remains a bona fide, resident oí the State of Alabama,” etc. The statute, Code, § 2507, and the Constitution, Art. 10, § 33, limit the exemption as to children during their minority. The judgment entry, no doubt, followed § 2537 of the Code, —making provision for exemption in favor of children, when the father absconds or abandons his family, as was the case here,' — -which provides, that “such exemptions shall continue only so long as the wife and minor child or children, or either, shall remain bona fide residents of this State.” But, this section must be construed in pari materia-with said § 2507, and said Article of the Constitution, and clearly means that the exemption is to be enjoyed by the children, during minority only, if they remain bona fide residents for that length of time.—Marx v. Miller, 55 Ala. 322; Hunter v. Law, 68 Ala. 365; Barber v. Williams, 74 Ala. 333; Norton v. Norton, 94 Ala. 481. The judgment will be, here, so corrected, and as corrected, affirmed.

Affirmed.