*1 plaintiff. this Other comments on feature are sufficiently in our embraced remarks concerning corpo- rate names.
The judgment reversed, with directions to grant injunction, accordance with this opinion. Rehearing.
On The only point we deem'worthy notice for petition filed rehearing defendants, is with refer- ence our final order. Their motion for nonsuit having been granted by court, the trial which we ruling have re- we shall versed, now, on further consideration, instead ordering issuance an injunction against defend- ants, direct that the cause be remanded to the lower court for such further action, inconsistent with this opinion, as may be advised. Our opinion is modified to this only. extent modified and
Opinion petition rehearing denied. 12,124.
No. Estate Schmidt.
Dillingham v. Schmidt. Beliearing Decided December 1928. denied December *2 Mr. R. Bosworth, Mr. S. S. for plain- Charles Abbott, tiff error. Mahoney
Messrs. Morrissey, & Scoeield, Mr. Harold G. defendant error. King, En Banc. opinion
Mr. Justice Adams delivered the of the court. originated case in the City court of the county This County of Denver. It appealed the district court. It is now here on writ of to review the action of the *3 district court. The last named court sustained the de- murrer of defendant in' to error, May Liberty Schmidt, the caveat and objections Georgie Dillingham, plain- <?f in tiff to error, the of will probate the of George John Schmidt, deceased. Georgie to Dillingham elected stand her on caveat and it was dismissed.
The of petition the in successful the court party below, May Liberty Schmidt, probate of the will and letters testamentary, inter left recites, alia, that deceased sur- viving as his sole only law, and at devisees heirs and the legatees; first, his petitioner, who is daughter-in-law and devisee and legatee, second, Georgie and Dillingham, daughter decedent’s heir at In of point and law. fact, Georgie Dillingham the granddaughter is of deceased, and his in legally adopted The daughter. decree adop- tion was in county entered the court of City and County of in Denver, July, 1908, years about nineteen before the will of her foster father, George Schmidt, John deceased, was offered for probate.
The will all to purports give decedent’s to property May Liberty Schmidt. Mrs. proponent, Dillingham’s objections are that and promised wife decedent his promise one of was this agreed that her, not to disinherit adoption; in viola- in conditions of completely attempts disinherit to thereof, tion connty conrt The void. therefore and that her, is Dillingham, against Mrs. court decided the district probate. to will was admitted adopt petition to The verified Maggie county G-.Schmidt court John
filed only part the decree wife. The Schmidt, his E. adoption to questioned, relates is which that is adoptive parents and so promise disinherit, not to * * “* part quote. reads: Such this is all we need having having petition ex- read said And the court petitioners, and the the said their oaths amined testimony fully being submitted from satisfied ability petitioners properly rear, herein of promise and their not and maintain said child educate promise child; one of condi- said which disinherit * * *” (Here follows a statement tions of this decree. concluding adoption.) with the order of facts, other questions following (1) of law: The'case raises Meaning or “disinherit- of the words “disinherit” agreement (2) Legality disinherit. ance.” agree- affecting legality (3) of such Consideration (4) that the contention of defendant error ment. provision
against part is not a de- disinheritance (5) incorporate adoption. Right of the court cree juris-' provision (6) Further, in such decree. as to (7) Right legatee sole under devisee and diction. *4 adoption. in to contest the conditions decree will, judicial proceedings. (9) Right (8) Irregularities in the will caveat. contest nothing complicated in 1. see or uncertain We meaning of the words “disinherit” or “disinheritance,” applied any good to this case. Reference to almost as dictionary give following will information.» are definitions: Disinheritance. “The act some person deprives his heir of an which a inheritance, who, 32 such act,
without
would inherit.”
Dic
Bouvier’s Law
tionary,
(Rawle’s 3d
886. “The act
which
Rev.) p.
the owner of an estate
a
deprives
person of
right
the same,
inherit
who would otherwise be his heir.”
Law Dictionary (2d
Black’s
376. The
“dis
Ed.) p.
verb
inherit,”
is defined in Webster’s New International Dic
tionary as
“To cut off
meaning,
from,
of,
or
an
deprive
inheritance or hereditary
succession;
an
prevent, as
from
heir,
into
coming
possession
any property
law
right which, by
custom,
would
on him in
devolve
the course of descent.” These definitions will
for
suffice
our present
purposes.
They
quoted or applied
v.
Anglin
Patterson, In
106,
633;
Okla.
Pac.
632,
Will,
Re Byford’s
65 Okla.
2. The
legality
not
agreement
to disinherit
into question
called
for
by counsel
defendant
error.
Their
to assail
agreement
is challenged by op-
posing counsel. We shall
of this
speak
later. However,
assuming, only
present
purposes,
question
of its
has not
validity
been foreclosed by the former judg-
.
ment or decree of
county
court,
year
entered
and even if we were
permitted
go
that,
behind
find
yet we
such agreements
sustained in reason and
In common with the
precedent.
rule
other jurisdic-
have held a
tions, we
contract
to make a
particular
to be valid and enforceable.
Oles Wilson,
33 thing; it, is, do not to other, certain per authority “By weight the laws not to will. mitting simply adoption on them confer children * * 1 rights J. ordinary C. inheritance. page § 29. page 618, Such, § 1 R. L. 122; C. 1396, rights adopted of in general, child’s is the effect on the Laws Session statute. under the Colorado heritance amending § p. L. 5515. It does § C. 1927, 59, 1, 183, c. dispose parent adoptive power of the
“not affect may adoptive parent property de but the will, of his dispose prop power prive of his thus himself give binding erty him to a contract page property.” 1396, 1 C. J. share of his a certain 808; N. Martin § 328, 5 D. 58 .W. 122; v. S. Quinn Quinn, Long, Johnson, 37 43; Bedal v. 694, 53 Neb. N. W. v. Taylor 87 Penn. Mitchell, v. 650; 218Pac. Idaho, 359, 641, N. E. 228 Ill. 791. Such Abbott, 518; St. Jones v. necessary derogatory agreements to the child’s “are not they augment privi contrary, his heir; status as on the parent depriv adopting leges, disqualifying from parent might property promised, ing as the him of the ’’ promise. Clark, Kans. for the Bilderback do but to 9 A. L. R. 1628. 1622; 9 A. L. R. Note Pac. 737, 189 agreement en at bar was lawful and the case' forceable. attack the defendant in error further Counsel ground
agreement on the of no con- not to disinherit again, only Conceding of their for the sake sideration. position argument, in error is in a to raise that defendant Among point, taken. it is not well elements still, may existing, well be included the ac- of consideration adoptive parents quirement by of the child’s love and change obligations them, filial do- affection, her surviving relationship, natural the consent mestic rights, relinquish paternal parent his to forever enjoyed rights of her which she before forfeiture child’s may proceedings. adoption It be said these are proceeding, but even so, incidental *6 parent’s not to be inferred that the natural would consent have been or that the court would have deemed obtained, toit have been for the best interests of the child de promise. cree the it had not been for the Con cerning parties, Supreme said Court of as Pennsylvania Taylor supra, Mitchell, in love v. natural stipulate they and affection moved them to did. And moving apparent. here, other causes are Discussions concerning the matter of similar to what consideration, jurisdic we in have will be from said, found cases other tions, above cited. See also v. Winchell, Tuttle 104 Neb. 750, N. W. 11 A. L. R. 814. 755, It does not often merged happen that the consideration a contract in appears a decree on the face of the final and sel order, clearly dom as as in this one.
4. It is contended counsel for in defendant error against part that inhibition disinheritance is not a adoption. of the decree in We think otherwise. Sec- requires tion 5514 in its order to forth set promise peti- facts. One these facts was the of the promise,” tioners not to disinherit child, “which so the order “is one of the reads, conditions of this decree.” language plainer. It is difficultto see how could be A fact highest importance being incorporated thus in the part decree, and made a of it, it is of little if conse- quence paragraph on or in what line what it is inserted, printed permeates or whether or written. It the entire merely by crediting eyesight, decree, our we hold that it is there.
5. As to the of the court to make the order, impose the condition: Counsel for defendant error argue proceedings statutory. that Graham, This is true. Francis, 83 Colo. 346, 265 Pac. chapter statute will be found C. L. 1921, 120, being sections 5512, 5513, 5514 and 5515 of such laws. 5515is Section amended § Session Laws 1927, c. 59, 1, p. in matter 183, a not material here. Counsel for de- go say fendant error then on to that the statute does agree require adoptive parents not disin- may but too, fact, This, infant. herit prevent them from does not be added that statute also making binding agreement. not follow It does such a judicial subject agreement be the cannot statutory. cognizance merely One it is not because change adoption proceedings purposes is to § property. 1, c. Laws succession to Session present p. supra. And in the 183; Francis, Graham v. provision agreement not in case, derogation mentioned thereof, statute, but furtherance *7 objects be ac- its would to make it more certain that is, enjoy- by insuring complished plaintiff in error right for defendant ment of the of inheritance. Counsel mandatory supposing that it was in error are mistaken adoption without the condition to decree the on the court might argument if have merit the court mentioned. The in- for the best that it would have been had been satisfied provision, without but of the child to so decree terests contrary right is evident. have to assume. this we no necessity, vested with discretion the court must be Of considering proceedings, adoption the child’s welfare. page discre- § 93. And the exercise of such 1389, 1 C. J. not interfered with. Ban- abused, when not will tion, §1447. Practice, 4, vol. croft’s Probate only adoption is one of the To make decrees 6. county many It a court. court items of business of jurisdiction, general limita- within its constitutional of person jurisdiction of in- over the each It had tions. subject subject party matter. This mat- and the terested shows, face was the welfare of on its as the decree ter, question her in- her infant, gerihane to the statute. of which heritance, all pronounced judgment. equipped, a valid the court Thus agree- i. e., matters, the two Whether or could not have been disinherit, could ment not proceeding, objection if seasonable in one had united hearing, error, made at and one writ of been party having question right point, raise is a that is not us. before As to the in error, defendant sole devisee legatee under the will, to contest the conditions of adoption:
the decree in For reasons, various she is not position successfully. George in a to do so John Schmidt, adoptive the testator and father error any ground if could do so he were on alive, here urged, supra, (83 for, as we said Graham v. Francis, 354), voluntarily Colo. 347, “Parties who have submitted controversy having jurisdiction their subject ato .of the question
matter, cannot be allowed to its author- ity. Flannagan, Christ 140, 683; 23 Colo. 46 Pac. Whipple v. Wessels, Colo. 309.” Pac. position Defendant in error inis no better than Schmidt privity recip- would have been. She is in with him, misplaced bounty, attempt ient give his in his unlawful rights to her, his last testament, plaintiff in rights thus defeat the latter’s rights beneficiary inheritance. In this matter, rights under the will are measured of her bene- factor, the deceased testator. light
8. Construed in the
most favorable to defend-
*8
express
against
ant in
error,
condition
disinheritance
in the 1908
irregularity,
decree, was at best, a mere
if
by
county
that,
even
committed
court in the exercise
jurisdiction.
subsequent
of its
In the
collateral attack,
powerless
the irregularity,
to review such
even
enough
if it had been serious
to reverse the old
on
case
Kavanagh
writ of error.
v.
53
Hamilton,
Colo. 157, 171,
125 Pac. 512;
v.
53
Asher,
313,
Clarke
Colo.
125
314,
Pac.
Kingsbury,
538; Stokes v.
63 Colo. 27,
164
29, 31,
Pac.
Judgments, §
principle
313;
on
Black
245. This
has been
frequently applied
jurisdictions,
in other
con-
matters
cerning adoption
property rights.
and infants’
Note to
page
A.
L. R.
1
Appeal
1024; R.
L.
§
C.
35;
625,
(Pa.)
Wolf, 10 Sadler
13 Atl.
Young,
139,
760;
Bird
210,
Ohio St.
46 N. E.
Term.
819; Bass v. Morton, 155
considering the to the caveat, demurrer we find noth ing present gen in the to take the case out record eral rule stated. adopted Concerning to con- by will
test the ing caveat: Plaintiff in dur- her childhood her testator, filed caveat and ob- probate jections to the will under section 5211, L. which reads as C. follows: day hearing pro- or
“On before the set for the day may hearing bate of such will, or the to which such any person pro- be continued, served with as citation, appearing probate, desiring vided or at such law, object validity legality will, contest said or to the or any portion all or of the contents shall file in the thereof, county objections, writing, court a caveat or which ob- jections subject insufficiency shall be to demurrer for specific, motion make more definite certain, and to complaint amendment and answer as a and answer in civil and shall cases, be divided into two classes, to-wit: objections may
“First —All such raise issue as to writing question whether the be last will of the testator or testatrix or which not, issue shall be first tried by jury, according practice unless waived, to the in civil actions. objections legality
“Second —All such
to the
of the con-
tents of
which then exist and could then be
any
raised and determined other action, which
class
objections shall, if such instrument be found to
a will,
be heard'and
court,
determined
before such will be
formally
probate,
admitted to
hearing
and if,
objections,
such second class of
the court shall determine
portion
of the contents of such will is void, the
probate,
court shall admit such will to
in so far
itas
shall
binding,
be found to be valid and
shall be executed
only
may
far as
so
its contents
be held to be valid and
*9
binding;
portion
conveyed by
of such estate not
invalidity
any portion
will because
such
of
of its
ad-
to be
property,
intestate
shall
held to be
contents
be
with
or administrator
snch,
the executor
ministered as
en-
If the
such will.
to execute
annexed, appointed
be
shall
estate
void, such
of
will be held
tire contents
intestacy.”
in
cases
as
other
administered
statute, estab-
above
means of the
The legislature,
valid-
“or
will,
object
a
“contest”
a
toway
lished
there-
of the contents
any portion
of all or
ity
legality
or
By means of
objections.
caveat or
a
of,” by filing
effective
molded
body providently
act,
making
the law
bud,
in the
at the
confusion and
scissors,
nip
litigation
in
a
whole
will, illegal
of the attempted probate
outset
are so
utility
apparent,
in
Its wisdom
part.
is
that mere reference
clear,
so
its provisions
con-
entitled to inherit may
“An
enough.
Administration,
on
Law of
Woerner
American
test.”
Goodwin,
726, §217;
vol.
Bernero
Ed.)
page
(3d
do,
we
under
Operating
We the demurrer defendant error sustaining court for we but have the mat- objections, given the caveat and commensurate with the im- consideration, particular ter questions presented the briefs, espe- portance *10 cially obviously harmony as our views are so out of with ruling of the court. trial attempted illegal,
Inasmuch as the disinheritance was ap- in error is entitled to from all that inherit, pears record, the same to extent as she would have George been if the John testator, Schmidt, had died in- judgment testate. The will therefore be reversed with directions to overrule demurrer. and Mr. Justice Burke, Mr. Justice Whiteord Mr. Campbell concur.
Justice Chiee Justice Denison and Justice Butler Mr. Mr. concur the result.
Mr. Justice Walker dissents. specially concurring.
Mr. Justice Butler part I opinion, concur in the result. With that however, that or seems holds, hold, that in proceedings power adopt- a court has to decree that the ing parent adopted shall not disinherit the I do not child, agree. (C. expressly 5514) § The statute L., states what foregoing order shall be entered: “When the provisions complied if with, the court is satisfied of ability petitioner bring up and educate the properly, having degree child reference to the and con- parents, dition propriety child’s and the fitness and setting of such it shall make an order, forth the declaring and facts, from that date such child, to all legal purposes, petitioner, intents is the child of the thereby changed.” and that its name is by adoption, rights, The status created and duties obligations adopting parent and the clearly (C. 5515): § child are defined statute L., “The parents natural legal rights shall, such order, be divested of all obligations respect to the child, and legal obligations the child be free all from of obedience shall them; snch child respect and maintenance.in heir of legal the child and all intents and purposes rights entitled all her, him or adopting so person obligations to all subject privileges, wedlock; but lawful begotten of such person *11 of decease subsequent and the person of such decease of such issue, property without the adopted such kin, next of to or her shall descend his parent adopting of child.” adopted not the next of kin such and to the circumstances justify If court is satisfied that the sec- by the prescribed it makes decree the adoption, and the results described thereupon 5514, supra, tion a of course. The follow as matter 5515, supra, section any- to or power change modify without is results; to either statutory deprive to alter those wise adopted priv- or the child of adopting parent either of statute, conferred or to by impose upon ilege than in addition or other obligations them burdens or is not statute. If the court satisfied those imposed it denies justify adoption, that the circumstances There is no middle course. application. an nat- nothing prevent agreement
There latter parent adopting parent, binding ural and A as- majority my not to child. adopted disinherit that an agreement may spelled sociates believe a de- requires of the record before us. While out conclusion, arrive at such cidedly liberal construction to with as- disagree my I on this disposed, point, am sociates.
Me. concurs this specially Justice Denison Chief opinion. concurring dissenting.
Mr. Justice Walker for the reasons dissent, I following. now under review judgment
The was rendered de- upon caveat, after averring murrer to the caveat. that adopted is the and daughter caveator decedent to the refers decree of testator, specifically July copy of "which air ex- decree is attached to caveat as ‘‘ petitioners hibit. The caveat then avers: That the said (meaning wife) permitted adopt Schmidt and his were G-eorgie objector Marguerite your the' said Trumbull, herein, said decree in was entered express promise among contained, condition therein petitioners promised each of them not to others, adopted promise disinherit said and that such child, ’’ and is one conditions said decree. contrary promise, It is then averred to the condi- that, agreement adop- tion and as aforesaid, said decree tion contained, decedent did his last will testa- contrary ment, legal rights caveator, disinherit to her vested and contrary an child, law, against and that such last will is null and void, as rights legal in that it caveator, is violative of the rights and vested of the caveator, under the rights and is in fraud her under de- *12 rights cree, and of her heir as at law. adoption decree recites that the matter came on upon petition be
to heard the of Schmidt and wife, his for adoption peti- the of the minor child above the mentioned, appearing proper persons tioners their own and attorney, having their petition, and, court “the read said having peti- and examined their oaths the said being fully tioners, and the court satisfied from the testi- mony ability petitioners submitted herein of the of the properly rear, to and educate maintain said child and not to disinherit said child; which promise promise their * * * one is of the conditions of this decree and it appearing further writing by to the court that consent in Harry J. Trumbull, the father of said child, has hereto- given petitioners fore been to adoption the herein the Georgie Marguerite of said child, Trumbull, the said Harry being surviving parent J. Trumbull the of said being fully and prem- child, the now advised in * * ises part as order reads follows: “Or- The decretal adjudged the said court, and decreed dered, Marguerite Georgie known as minor child heretofore legal to all intents'and date, be from this Trumbull shall petitioners legal purposes, John child heir of and Maggie and that the name E. Schmidt, and Schmidt G. hereby changed, and altered declared be child is said Georgie Marguerite be, and child shall and Schmidt, said rights privileges hereby if and is entitled to all the them born in lawful wedlock.” was en-
The statute under which the R. inclusive, tered is be found sections 526 to S. provision filing making for notice and the 1908. After parents petition, the guardians, and for consent of natural provides: “When the statute section provisions complied foregoing if the court with, up ability petitioner bring and is satisfied of the having properly, reference to de- educate the child gree parents, and the fitness condition of child’s and adoption, propriety and it shall make an order, such setting declaring that facts, forth the from date purposes, legal intents to all is child, such ’’ petitioner, thereby changed. its name is and that defining statute, Section 529 of the the effect parents as follows: “The natural shall, obligations legal rights of all order, divested legal respect to the child be free from all child, respect obligations obedience and maintenance in purposes to all intents child shall be them; such *13 person adopting legal him heir so or her, child and privileges, subject rights and and all to all the entitled person begotten obligations of a child such law- upon person such the decease of and wedlock; but ful adopted subsequent child without decease of such issue, adopting parent property shall descend to such his next not to the of kin and kin, her next or ’’ adopted child. by plaintiff It is not contended in error, and of course successfully adop- could not be that the act of contended, ipso deprived adoptive parent right tion facto by to disinherit in like child, will, manner might and to the same extent as he indo the case of Ms plaintiff ownnatural child. contentions of the in error, depend solely upon special as taken from her brief, provisions of the decree now under consideration, and are stated her counsel as “That follows: the aforesaid provisions adoption legal, binding in said decree are and judicial enforceable, and final determination a court competent jurisdiction; promise agree- that said having judicially ment been once ascertained, determined promise agreement decreed, matter of such judicata, again inquired res and cannot liti- into, gated adoption having or re-tried; that said July been entered on 14th, same is con- final, impervious directly, clusive, and to attack either col- ’’ laterally or otherwise. harmony apparent These contentions are in with the theory plain of the caveat. For it seems from the caveat right that the claimed in error is made to upon agreement, upon rest, not contract or but the force adoption judgment. and effect of the decree of as a Plaintiff error does not aver in her caveat that an agreement not to disinherit her was made between her proposed adoptive parents. father Trumbull and the She relinquished does not aver that her father his to her custody promise adoptive in consideration of the of parents not to disinherit her. Indeed, she does not aver arrangement understanding contractual between adoptive parents any person party whatever, acting If for or on her behalf. she had made such alle- gations, proceedings if and the decree upon merely therein had been relied to evidence such an agreement and its consummation, then she would have brought principle herself within the announced chiefly which she authorities relies in this case. *14 44 D. N. Quinn, 328, 808; are v. 58 W. Quinn 334,
These S. other 359, Pac. Johnson, Bedal v. Idaho, in tenor, of similar some of which are collected the cases A. L. R. annotations in 9 plaintiff provi-
If we
the claim of
in
test
error
the
purpose
of
of
for the
sions
the decree
of ascer-
taining
upon
whether that
of force
decree is
to confer
adopted
her an
of inheritance
indefeasible
from her
parent,
begin
proposition
we must
with the well settled
jurisdictions
adoption proceedings
in
that
like
ours,
scope.
purely statutory,
origin
both in their
and their
Francis,
83 Colo.
But petitioners for the shall not disinherit the mandatory portions the order child. any requirement, but are care- no mention make fully restricted within boundaries without limited and provision made his When Schmidt statute. be said that he it cannot violated error, adoption. Plain- the decree within included order says the recital in the however, decree, tiff coupled promise, making with the declaration *15 promise the conditions one of is that such the court judicata, the that of res it a matter makes decree, promise made? promise was the But to whom made. was not claimed upon It is what consideration? And custody relinquished parent to the who was made was not the court court, to the If it was made the child. proceeding, by it was under which statute, authorized promise promise, receive such nor to exact such to authority representative agent His or the child. propriety determining and fitness of the limited consequences legal attached to in view of the by discretion which the the statute. The such status with in the matter was to determine vested court was of the case it was or not under the circumstances whether adoption. proper to enter the decree of But such fit and requiring acting upon or did not extend to discretion scope promises within or conditions not stat- only upon which can be if at ute, effective, all, principles private contract, and as between contract- parties. ing finally urged
It is with much force, that since the de- adoption cedent had the benefit of the in the decree, cus- tody society plaintiff during her error, minority, the defendant in who claims error, under bim, estopped question validity is as he would be, any part appears of the decree. But, as from what is position stated above, the taken the defendant in er- any part ror involves no contradiction of of the order estopped made the court. If the defendant in error representative as the claiming of the decedent, or as one impeach relating promise him, under the recital to estoppel go not to disinherit, could no further than perceive upon to the truth of the recital. I can no ground which defendant error or the decedent would be es- topped question power authority or of the require promise, validity such a or the of such a promise when made. In addition to this, caveat sets estoppel might forth no facts which an be raised. There is no claim that anyone lawfully has been representing her, injured misled the recital in the decree. She has had all the so benefits, far as the record which the law attaches to shows, I status. cannot agree she to be in appears to invoke position the doctrine of estoppel against chosen of her object father’s adoptive bounty. judg- ment should be affirmed.
Judgment reversed.
No. 11,904. Company Ignacio Farmers Life Insurance State Bank. Decided December