137 Mass. 346 | Mass. | 1884
Upon a petition to the Probate Court for the adoption of a child whose parents were unknown, a guardian ad litem, with power to give or withhold consent, was appointed, under the Pub. Sts. c. 148, § 5. The guardian, before either giving or withholding his consent, very properly presented to the court certain questions respecting his authority to act in the matter. The court sustained one of the objections raised by the questions, and, on that ground alone, ordered the petition to be dismissed; and the petitioners appealed to this court. The objections have all been argued as affecting the jurisdiction of the court, and we have considered them as all open upon the appeal.
It is objected that the petition is insufficient, because it does not allege that the child whose adoption is sought is not the sister or aunt of the petitioners, or either of them. Without considering whether these are not sufficiently included in the allegation that the child is a foundling, whose parents are unknown, we do not think that the technical rules of pleading should be stringently applied in a proceeding of this kind. It is more important that the petition should contain facts relating to the child and its parents, which may give information to those interested, than that it should be formally correct as a pleading.
The next objection is that the return of service of the order of notice is not sufficient.
The next objection presents the question whether the statute authorizes the adoption of a child whose parents are unknown, and are not brought within any of the exceptions of § 3, and who has no guardian, and has not been given up in writing for the purpose of adoption to a charitable institution incorporated by law.
Section 2 requires the consent, except as subsequently provided, (among others not material to this case,) of the parents or surviving parent, and of the guardian, if any, of the child, “ or of the person or persons substituted for either of the above-named by the provisions of this chapter.” Section 5 provides for the appointment in certain cases of a guardian ad litem, with power to give or withhold consent. A guardian so appointed has power to give consent, and is a “ person substituted ” within the meaning of those words in § 2. It follows that, whenever the statute authorizes the appointment of such a guardian of a child, it gives the court jurisdiction to order the adoption of the child, so far as consent under § 2 is necessary. Section 5 authorizes the appointment of such a guardian in all cases in which no one appears upon the notice required by § 4. It provides that any person not opposing and objecting to the adoption shall be deemed to have consented thereto; and adds, “if no one consents or appears, the court may, if it sees fit, appoint a guardian ad litem with power to give or withhold consent.” The provisions of § 5 are limited to cases where notice has
The result thus reached from the language of the statute is confirmed by considering the provision in connection with the whole statute and the course of legislation, in view of the broad question whether the Legislature intended that children whose parents were unknown should be subject to adoption. The Pub. Sts. c. 148, is a reenactment of the St. of 1876, c. 213, which was a revision of previous statutes. The St. of 1851, c. 324, was the
In regard to notice, the first statute requiring it, after the St. of 1853, c. 31, which has been referred to, was the St. of 1859, o. 61, which, after providing that the consent of a parent who had wilfully deserted and neglected to provide for the child
It seems then that, prior to the St. of 1876, c. 213, personal notice was required to the guardian, if any, and next of kin, if any in the State, of a child whose parents were both deceased, and notice personal or by publication to a parent who was living, and had not consented, and did not come within the exceptions of the statute making his consent unnecessary; but no notice or consent was required in the case of a child whose parents were unknown, or whose parents were deceased, and who had no guardian or next of kin within the State; though the authority to decree adoption of the former was expressly given.
In revising these provisions, the St. of 1876, c. 213, omits the provision of notice to guardians and next of kin, and makes no mention, in words, of children whose parents are deceased or unknown, but they seem to be included in provisions simple and comprehensive. Section 2 requires in all cases not coming within the exceptions of §§ 3 and 4, (Pub. Sts. c. 148, § 3,) the written consent of a parent, guardian, or person substituted for them. The latter is a new provision. It provided, in §§ 5 and 6, (Pub. Sts. c. 148, §§ 4, 5,) that, in all cases in which the required consent is not submitted with the petition, notice shall be given, personal or by publication, as the case may require, and such other notice as the court may deem proper, and that, if no one appears in response to the notice, the court may appoint a guardian ad litem, who may give or withhold consent, thus making him the substitute for the parents.
We think that the St. of 1876, c. 213, did not intend to omit all provision in regard to children whose parents were deceased
The decree of the Probate Court dismissing the petition must be reversed, the petition sustained, and the case remanded to the Probate Court for further proceedings. Ordered accordingly.
The order of notice required personal service on all persons interested, or, if not found within the State, service by publication in a certain newspaper. The return, signed by the first-named petitioner, was as follows: “I have served the foregoing order, as therein directed, by publication as directed.”