Davis v. McGraw, 206 Mass. 294

Davis v. McGraw

206 Mass. 294 | Mass. | 1910

Hammond, J.

The first question is whether the decree of adoption of Lucy D. McGraw was absolutely void for want of jurisdiction of the court.

The petition for the adoption was by Frederick H. Davis alone. In the petition he represents himself as a widower and prays for leave to adopt Lucy D. McGraw.' The decree is that from its date “said child shall to all legal-intents and purposes be the child of said petitioner.” As a matter of fact the petitioner had a wife still living, who had no knowledge of these proceedings until a few days after the death of the member, which occurred about six months after the decree. That it was at least voidable as against the widow there is no doubt. But was it absolutely void so far as respects the acts of the society done in reliance thereon?

The law of adoption is purely a creature of statute. B. L. c. 154, § 1, provides that a person of full age may petition the Probate Court for leave to adopt as his child another person younger than himself, with some exceptions not here material, but that if the petitioner has a husband or wife living who is competent to join in the petition, such husband or wife shall join therein, and upon adoption the child shall in law be the child *298of both. There is no such thing in this Commonwealth as an adopted child of one spouse alone, if husband and wife are both living at the time of the adoption. The child is the child of both and so should the decree run. In the present case there was a wife competent to join in the petition. The decree therefore does not conform to the law and is not such a decree as the court had the power to make.

But the objection to the validity of the decree goes deeper. In order that the Probate Court shall have jurisdiction to act it is necessary, where husband and wife are both living and each is competent to join in the petition, as was the case here, that both should sign the petition. The joinder of the wife is a condition precedent to the power of the court to consider the case. The court not having jurisdiction the decree was absolutely void and of itself furnished no protection to any one acting under it, even although acting in good faith. Jochumsen v. Suffolk Savings Bank, 3 Allen, 87, and cases cited. See also Purinton v. Jamrock, 195 Mass. 187. There is nothing in Ross v. Ross, 129 Mass. 243, inconsistent with this conclusion. There is no contention that McGraw came within any class of beneficiaries prescribed by the statute if the decree was void.

Here then is a case where the only legal beneficiary, namely, the father of the member, died before the member, and there never was any other legal designation. Section 7 of Law XVIII of the by-laws provides that “ if all the beneficiaries shall die during the lifetime of the member, and he shall have made no other legal designation, and he shall leave a widow, and no minor children surviving him, the benefit shall be paid to his widow.” There are no minor children, and by the plain language of the by-law. the plaintiff as the widow is entitled to the benefit. See American Legion of Honor v. Perry, 140 Mass. 580; Elsey v. Odd Fellows’ Mutual Relief Association, 142 Mass. 224; Doherty v. A. O. H. Widows’ & Orphans’ Fund, 176 Mass. 285, and cases cited. The fact that the defendant society has paid the money to Mrs. McGraw who was not entitled to it is no defense. Tyler v. Odd Fellows’ Mutual Relief Association, 145 Mass. 134. Jochumsen v. Suffolk Savings Bank, 3 Allen, 87. Loring v. Folger, 7 Gray, 505.

In this case we have been favored by a brief, filed by the per*299mission of the court, by an amicus curice, which we have carefully examined.

The conclusion to which we have come renders it unnecessary to consider the other grounds upon which the plaintiff relies in support of the case.

Decree for the plaintiff.