Farnsworth v. Goebel

240 Mass. 18 | Mass. | 1921

Pierce, J.

This case is an appeal from a decree of the Probate Court dismissing a petition for revocation of a decree of adoption. At the request of the petitioners the judge made a report to the court which contains all the material facts. These facts show that on February 7, 1919, a petition for the adoption of Madeline H. McClintock, then residing in Lancaster, Massachusetts, was filed in the Probate Court, at Worcester, Massachusetts. The petitioners were Robert H. Goebel, a resident of Berlin, New Hampshire, and his wife, Ethel M. Goebel. Madeline was born April 8, 1914. Her parents were deceased at the date of the petition, and the petitioner Ethel M. Goebel is her aunt, her father’s sister. The paternal grandparents residing in Lancaster assented in writing to the granting of the petition, and counsel for the maternal grandparents entered his appearance in opposition. A guardian ad litem for Madeline was appointed, was present at the trial', made a verbal report and gave his assent. R. L. c. 154, § 4.

The petitioners for revocation of the decree contend that the Probate Court under R. L. c. 154 (see now G. L. c. 210), cannot grant a petition for adoption to a non-inhabitant of the Commonwealth unless such person shall have his domiciliary residence within this Commonwealth. This position is unsound. The change in phrasing “Any inhabitant of this Commonwealth” contained in St. 1851, c. 324, § 1, Gen. Sts. c. 110, § 1, to “Any person” in St. 1871, c. 310, § 1, and in all subsequent statutes, manifestly was intended to permit the adoption of resident children by petitioners who were domiciled in another State, and was not merely to remove the necessity of the petitioner being both an inhabitant and a domiciled resident. Stearns v. Allen, 183 Mass. 404, 407.

The petitioners next contend that the petition for adoption was insufficient in alleging the place of residence of the petitioners or of the child. This contention is founded upon the assumption and declaration that “A probate court of Massachusetts is a court of limited jurisdiction;” that “The fact of residence is jurisdictional; that is, residence is essential to jurisdiction of the Pro-hate Court.” The short answer to this position is that probate courts since St. 1891, c. 415, § 4, are courts of superior and general jurisdiction, and are of the same dignity as common law and equity courts. Renwick v. Macomber, 233 Mass. 530. It therefore must be assumed, in the absence in the record of facts to the contrary, that all essential jurisdictional facts were proved at the hearing.

The petitioners next contend that the decree should be revoked because one of them, Sidney W. Farnsworth, a maternal uncle of Madeline, had no notice of the petition for adoption. The Probate Court in this regard ruled that notice to the uncle was not required under R. L. c. 154, § 2. This ruling was right. The statute enumerates the persons and their relationship to the person sought to be adopted; it further provides for the assent of a person substituted by the court for the persons enumerated in § 2. The petitioner Farnsworth is not by reason of his relationship to Madeline within the enumeration of persons entitled by the statute to notice of the proceedings, or to give or withhold consent thereto, and was not appointed under the statute a substitute for any of them. Edds, appellant, 137 Mass. 346.

Finally the petitioners ask that the decree be revoked because the petitioners for adoption practised misrepresentation and fraud upon the court. To this charge the Probate Court found as a fact “that no false or fraudulent statements were made by them in this matter;” and an examination of the reported evidence and facts leads us to the conclusion that this finding was fully warranted.

It follows that the entry should be decree affirmed.

Ordered accordingly.