64 Neb. 649 | Neb. | 1902
February 26, 1870, Benjamin F. Ferguson and Hannah Ferguson, his wife, by proceedings instituted before the county judge of Richardson county, adopted Willie Duff Martin, who was at that time two and one-half years of age, and in custody of the poor master of Otoe county, Nebraska. Hannah Ferguson was the owner of certain real, estate in Richardson county, and died intestate in the year
From the foregoing statement, it will be seen that both parties claimed title from Hannah Ferguson; the plaintiffs in error asserting that Willie Duff Martin Ferguson inherited from her as her adopted son; that he conveyed to Ms adopted father, Benjamin F. Ferguson, from whom they take under the terms of his will; the defendants in error claiming title as the natural heirs at law of Hannah Ferguson; and the material question to be determined is whether, under the articles of adoption, and the decree of the probate court in that proceeding, Willie Duff Martin Ferguson was entitled to inherit from hi:; foster mother, the same as a child born in lawful wedlock.
A determination of this question requires an examination of the proceedings had in the probate court relating to the adoption of Willie Duff Martin by Benjamin F. Ferguson and Hannah Ferguson, and the statute then in
“The parents, guardians, or other person or persons having lawful control or custody of any minor child, may make a statement in writing before the probate judge of the county where the person or persons desiring to adopt said child reside, that he, she or they voluntarily relinquish all right to the custody of and power and control over such child (naming him or her), and all claim and interest in or to the services and wages of such child, to the end that such child shall be fully adopted by the party or parties (naming them), desiring to adopt such child, which statement shall be signed and sworn to by the party making the same, before said probate judge, in the presence of at least two Avitn esses; and the person or persons desiring to adopt such child, shall also make a statement in writing, to the effect that he, she, or they freely and voluntarily adopt such child (naming him or her), as their own, with such limitations and conditions as shall be agreed upon by the parties, which said statement shall also be signed and sworn to by the parties making the same before said probate judge, in the presence of at least two witnesses: Provided, in all cases where such child shall be of the age of fourteen years and upward, the written consent of such child shall be necessary to the validity of such proceeding: And Provided further, whenever it shall be desirable, the party or parties adopting such child may, by stipulations to that effect in such statement, adopt such child, and bestow upon him or her equal rights, privtheges, and immunities of children born in lawful wedlock, aud such statement shall be fthed with and recorded by said probate judge, in a book kept in his office for that purpose.”
The statements made by the poor master of Otoe county having charge of Willie Duff Martin, and that of Benjamin F. Ferguson and Hannah Ferguson, and the decree of court entered in the case, are as follows:
*652 “State of Nebraska, County of Richardson. In the matter of the adoption of William Duff Martin, late of Otoe county, State of Nebraska. Now comes Jacob J. Hochstetler, the poor master of the poor of Otoe county, one of which poor, the said Willie Duff Martin is, and is a county charge and in control and custody of said poor master. That said Jacob J. Hochstetler, for the said county and as such poor master, and as the custodian of the said Willie, minor child, being of the age of two years and six months, does hereby voluntarily relinquish all right of custody, power and control over such child, Willie Duff Martin, and all claim and interest in and to the services and wages of such child, to the end that such child shall be fully adopted by Benjamin F. Ferguson and Hannah his wife, who desire to adopt said child, and do agree to adopt such child, William Duff Martin, as their own, and educate, maintain and clothe such child in a good and suitable manner for such child. This statement is made under the provisions of law for the adoption of children, that the said Willie Duff Martin may be adopted by said Benjamin F. Ferguson and wife.
“Jacob J. Hochstetler,
“Witnesses: Poor Master of Otoe Co., Neb.”
“Thos. B. Stevenson.
“M. L. Hayward/-’
[Duly verified.]
“State of Nebraska, County of Richardson. In the matter of the adoption of Willie Duff Martin, late of the county of Otoe, State of Nebraska. Now comes Benjamin F. Ferguson and Hannah, his wife, being man and wife, of said county of Richardson, do hereby aver and state, and each one of us do aver, that the said Benjamin F. Ferguson does hereby voluntarily adopt the said child, Willie Duff (Martin) Ferguson, and the said Hannah Ferguson, wife of Benjamin F. Ferguson, does voluntarily adopt the said child as and by the name of Ferguson, and we do hereby voluntarily adopt Willie Duff (Martin) Ferguson by the latter name as our own, and agree to maintain, clothe and*653 educate, and well to nurture.in the fear of the Lord, in presence of good manners and habits until the said child arrives at the age of twenty-one years. The child now being two years and six months old.
“Attest: Benj. F. Ferguson.
“Thos. B. Stevenson. • Hannah Ferguson/-’
“M. L. Hayward.-’-’
[Duly verified.]
“In the matter of the adoption of Willie Duff Martin by Benjamin F. Ferguson and Hannah Ferguson. Before L. Yandeusen, probate judge, February 26, 1870. And now on this 26 th day of February, A. D. 1870, this matter came on to be heard in open court, and it appearing to the court that Willie Duff Martin is a minor child, aged two years and six months, and is a county charge and in the custody of Jacob J. Hochstetler, poor master of the county of Otoe, in the state of Nebraska; that Benjamin F. Ferguson and Hannah Ferguson do voluntarily agree to adopt the said Willie Duff Martin by the name of Willie Duff Ferguson, as their own child, and to maintain, clothe and educate said child as though he were their own, until said child arrives at the age of twenty-one years. And it also appearing 1hat the said Jacob J. Hochstetler, poor master as aforesaid, is willing and desirous that said Benjamin F. Ferguson and Hannah Ferguson shall adopt said minor and have the exclusive care and control of the person of said minor and the right and duty of caring for his education and support. Now therefore, it is ordered by the court that the said Benjamin F. Ferguson and Hannah Ferguson have from and after this date the exclusive care, custody and control of said Willie Duff Martin, and that they stand in the same relation to each other as though the said Willie Duff Martin had been born in their lawful wedlock, and that the said Willie Duff Martin have all the right of a child born of the said Benjamin and Hannah Ferguson in lawful wedlock. And that the said Willie Duff Martin hereafter take the name of Willie Duff Ferguson.
“L. Yandeusen, Probate Jiuh/eP
Our own statute appears to differ from that of any other state to which our attention has been called by counsel, and from a somewhat extended research on our oavu part, we have fathed to discover any statute containing similar provisions. The best study which we have been able to give the subject leads us to believe that our statute, as it stood when this proceeding took place, contemplated two kinds of adoption,—one with all the rights of inheritance that would belong to a child by blood, and one where such right of inheritance was not conferred. It seems to contemplate that the mere fact of adoption did not of itself confer the rights and privtheges of children born in lawful Avedlock, but that, in order to accomplish this result,
“Unless the terms and conditions in said consent and petition otherwise provide, said person or persons adopting, and the said minor child adopted, shall after adoption, sustain toward each other the usual relation and the adopted child shall have bestowed upon him or her equal rights, privtheges and immunities of children born in lawful wedlock of parent and child, and shall have all the right and be subject to all the duties of that relation, and the parents of said adopted child shall, after said adoption, stand relieved of all parental duties toward, and all responsibility for, the said minor child so adopted and shall have no right over it.”
One object of the amendment undoubtedly was to make the act of adoption conclusive of the right of the adopted child to inherit, unless, in the words of the act, “the terms and conditions in said consent and petition otherwise provide.” This construction of the statute is in accord with the holding in other states. The right of adoption, being unknown to the common law, and repugnant to its principles, is a special power conferred by statute and is governed by the rule that such statutes must be strictly construed. “As against an adopted child the statute should be strictly construed as being in derogation of the general law of inheritance which is founded on natural relationship and is a rule of succession according to nature which has prevathed from time immemorial.” Keegan v. Geraghty, 101 Ill., 26; Wallace v. Rappleye, 103 Ill., 229. “Statutes, so far as they change the general course of descent and distribution of ini,estate property and
The plaintiffs in error have cited and rely on Kofka v. Rosicky, 41 Nebr., 328, as an authority in this case. We are unable to see any analogy between that case and the one at bar. The facts in that case and the law applicable to the facts are clearly stated in the fourth paragraph of the syllabus as follows:
“A girl about seventeen months old was given by her parents to her uncle and aunt under an agreement that they would adopt her and rear, nurture, and educate her, and that she was to be as their own child, and at their death to receive, or be left, all the property which they might own. She lived with them until they died, some ten years afterward, took their name, did not recognize or know her own father and mother in the true relation, but knew them as and called them uncle and aunt, and knew and recognized her uncle and aunt as father and mother. The uncle and aunt died possessed of real estate in the city of Omaha, the title to which they did not, either by deed or will, transfer to the child. Held, That there was such a part performance of the contract by the parties thereto as entitled her to a decree giving her the title to the property, by way of specific performance of the contract.”
This statement shows that there was no statutory adoption, and consequently no written statement made by the foster parents containing their agreement relating to the rights of the child to inherit their estate. In the case at bar the statute was followed, and, under our construction of the statute, the right of Willie Martin Ferguson to inherit from his foster parents can be established only by pointing out an agreement to that effect in the written statement required by the statute to be fthed by the adopting parties with the county judge. The question does not depend upon oral evidence to establish an agreement, and the terms thereof; but the rights of the child, -must be as
If we are correct in our conclusion that the right of the adopted child to inherit depends upon an affirmative statement to that effect contained in the articles of adoption, then the claim of estoppel urged by the plaintiffs in error can have no existence. The right of the child to inherit is determined by those articles, and the caste of descent of the estate of the foster parents is governed alone by the statements therein contained. If these articles provide for the descent of their estate to the adopted child, such descent will be enforced; but in the absence of such a provision all parties will be presumed to know that the adopted child can not claim such a benefit, and the fact that he has lived with his foster parents, has taken and bears their name, has conducted himself toward them as a dutiful child, and is estopped from denying that relation, will give him no greater rights or privtheges than the statute creating the relation accords.
This, we believe, disposes of all the questions in the case except the statute of limitations, which was pleaded by the defendants in error. It will be borne in mind that when Hannah Ferguson died in 1888, Benjamin F. Ferguson, her husband, survived her, and took an estate by the curtesy in all her lands. The husband died in 1897,
We think that the district court entered the proper judgment in the case, and we recommend its affirmance.
By the Court: For the reasons stated in the foregoing opinion, the judment of the district court is
Affirmed
On April 9, 1903, the following opinion was fthed on rehearing :
1. Adoption of Children: Decree: Force and Eefect. In rendering the decree provided for in chapter 2, title 25, Revised Statutes, 1866, g-overning adoption of children, the probate judge acts judicially, and such decree has all the force and effect of a judgment, being subject to collateral attack only for want of jurisdiction.
2. -: Construction of Statute: Requirement of Statute; Decree. The statute prescribing the procedure in the adoption of children should be liberally construed, to the end that the proceedings had thereunder, and the decree of adoption made pursuant thereto, may be held valid; substantial compliance with the requirements of the statute being sufficient to sustain the validity of the decree of the probate court.
3. -: -: -: Status of Child. The decree rendered by the probate court under the provisions of 'chapter 2, title 25, Revised Statutes, 1866, fixes the status of the child and its adoptive parents; and when such decree, by failure to prosecute error therefrom, is allowed to become final, it will, if in substantial conformity with the provisions and requirements of the statute, be conclusive upon all persons interested in the proceedings.
5. -: -: Collateral Attack. The decree of a probate court rendered under chapter 2, title 25, Revised Statutes, 1866, conferring' upon the child full rights of inheritance from his .adoptive parents, will not, in a collateral. proceeding, many years after its rendition, and after the death of the adoptive parents, be held void for want of jurisdiction on the ground that the statement of the adoptive parents fthed in the adoption proceedings fails in specific language to bestow upon the adopted child equal rights, privtheges and immunities of children b°rn in lawful wedlock, where a fair and reasonable interpretation of such statement is consistent with the intention so to bestow such rights, and it is manifest that the probate judge so understood and construed the statement of the adoptive parents, and the parents acquiesced in- the decree throughout their lives.
Kirkpatrick, C.
A former opinion in this case was fthed in this court May 8, 1902. (page 649, ante). The case is here upon rehearing. The defendant's in error, the next of kin and heirs at law of Hannah Ferguson, brought-an action in ejectment against plaintiffs in error, devisees of Benjamin Ferguson, husband of Hannah, to recover certain premises conveyed to Benjamin by Willie Duff Martin Ferguson, who had been adopted by the Fergusons in his infancy. The court found for defandants in error.
The sole question presented for determination is whether by virtue of certain adoption proceedings had in the conntv court of Richardson county in 1S70, Willie Duff Martin Ferguson, who was therein adopted by the Fergusons, became possessed of the right of inheritance from his adoptive parents, the same as a child born in lawful wedlock. The decree rendered by the probate court so provides in express terms. It is contended by defendants in error that the decree of the probate court providing that Willie should inherit as a child bom in lawful wedlock was made
“Now comes Benjamin F. Ferguson and Hannah his wife, being man and wife, of said county of Richardson, do hereby aver and state, and each of us do aver that the said Benjamin F. Ferguson does hereby voluntarily adopt the .said child Willie Duff (Martin) Ferguson, and the said Hannah Ferguson, wife of Benjamin F. Ferguson, does voluntarily adopt the said child as and by the name of Ferguson, and we do hereby voluntarily adopt Willie Duff (Martin) Ferguson, by the latter name as our own, and agree to maintain, clothe and educate and well to nurture in the fear of the Lord, in presence of good manners and habits, until the said child arrives at the age of twenty-one years, the child now being two years and six months old.”
It is contended that under this statement, made in compliance with the statute referred to, and the provision of that statute above quoted, the probate court had no jurisdiction to enter a decree of adoption conferring upon Willie Duff Martin Ferguson the rights of inheritance. Upon the threshold of the inquiry thus presented, it will be desirable to dispose of two preliminary questions: Are statutes such as that under consideration to be liberally or- strictly construed? and, did the probate court, in entering the decree, act judicially or ministerially?
The latter question will be- first considered. It is well settled that adoption proceedings were unknown to the
The other question suggested relates to the spirit that should govern in the adjudication of controversies arising
It is a necessary deduction from the foregoing that the decree of adoption is not impeachable for error, because of the axiomatic and somewhat trite reason that all courts have jurisdiction to err. The pivotal point, therefore, is, did the probate court have jurisdiction to decree that the adopted child should possess the rights of a child born in lawful wedlock? In the statement made by the-adoptive parents, as directed by statute, no specific mention is made of a desire to confer upon the child the rights of inheritance, but it does not follow that such meaning-may .not with reasonable and sufficient certainty be gathered from the statement. We have read this statement with the
Keference has been made by defendants in error to a subsequent amendment of the adoption statute, the effect of which has been to provide that the rights of inheritance shall attach to the adopted child unless specific provision has been made against such right, and it is said that this is legislative construction to the effect that under the law of 1870, the right of inheritance depended upon an affirmative. offer to confer it by the adoptive parents. Of this amendment, it may be said , that it is in line with the more recent judicial construction of adoption statutes, namely, that they should be held to confer all the rights of natural children, unless a contrary intention affirmatively appears. But we do not think the effect of this amendment can be to bind this court to a more rigid rule of construction of the law of 1870 than the spirit of that act and the usual canons of interpretation would warrant had the act -been permitted to remain.as it then was; and
There is much in this statute to, warrant the belief that it was the legislative intent that the decree provided for should fix the status of the child. “All decrees entered in such case,” it is therein said, “in conformity with the provisions and requirements of this chapter, shall be conclusive upon all the persons interested • in such proceedings or matter”; and further, “all relations of parent and child, agreeably to such stipulations and the decree of the probate court, shall attach, and such child, # * if so stated in such decree, shall be subject to the exclusive control and custody of such parent or parents, and shall possess and enjoy all the rights * * * of children born in lawful wedlock.” Revised Statutes, 1866, sec. 800, Code of Civil Procedure. In other words, there is no adoption until there has been a decree rendered, and after the rendition of the decree, the status of the parties must be determined from an inspection thereof, as in the case of other decrees, unless it is void for want of jurisdiction. It is true, that by the terms of the. statute the decree is only made conclusive when in conformity with “the provisions and requirements of this chapter”; but does this mean that no adoption decree will be valid unless every provision of the statute has been strictly and literally complied with? or, rather, that the decree depends for its force and effect upon substantial, compliance with the requirements of the statute? We are firmly of the conviction that judicial construction should not be carried further than the latter alternative. We doubt whether a court would, after many years had elapsed, during which all parties appeared to have been content with the event of the proceedings, hear the objection that the notice required had not been published in'exact compliance with the statute; or that one of the statements had been attested by less than, two wit
But we think the act as a whole should receive a broad and liberal construction. TVe are not without eminent authority in saying, and the fact is abundantly fortified by considerations of justice and humanity, that the primary person interested in these proceedings is the child. Parsons v. Parsons, 101 Wis., 76. It was least of all' capable of seeing to the strict observance of the detathed requirements of the' statute, if such observance is to be made the basis of a valid decree.
After consideration, we have been led to the conclusion that the jurisdiction of the probate court to decree that the child should inherit must be determined by the single inquiry whether he was warranted in concluding that such was the intention of the adoptive parents. And if we assume that he had no power to make a decree broader than the statement of the adoptive parents, on the principle already announced, that he acted judicially, it must, we think, be conceded that he was charged with the duty and the obligation to determine the meaning of the language used. To do so was necessarily involved in his act of pronouncing the decree; and the question would then.be whether the articles of adoption either expressly or impliedly conferred rights of inheritance. Martin v. Long, 53 Neb., 694, 698. It is, of course, obvious that the poor-master, who had the legal custody of the child, and' who surrendered it for adoption, could by no act of his. confer the right of inheritance; But it- should not be over looked that his consent, which was- essential, might have been largely governed by the belief that such- right was
Referring again to the statement made by the Fergusons, we find that they offer therein voluntarily to .adopt the child as their own, by the name of Ferguson, to maintain, clothe and educate him until twenty-one years old. A reading of the decree rendered by the probate judge makes it obvious, we think beyond the possibility of reasonable doubt, that the probate judge understood that he was embracing in the decree the wishes and intentions of the parties. Any other view would be in hostility with every hypothesis except that of fraud. The decree contains, first, certain findings of fact, e. g., the age of the child, thus negativing the jurisdictional requirement of the consent of an older child; the consent of the person having custody of the child; and that the Fergusons voluntarily adopt the child by their name, and “as their own child, and to maintain, clothe, and educate said child as though he were their own, until said child arrives at the age of twenty-one years,” whereupon follows, as a conclusion from the foregoing premises, a judgment or decree expressly conferring rights of inheritance. It is certainly to be assumed that the Fergusons knew that this decree had been entered, and knew what it provided. Throughout their lives they appear to have been perfectly satisfied therewith. This argues strongly in favor of the conclusion that the probate judge correctly reflected their own intentions in the decree.
We are not unmindful of the rule that any doubt as to the jurisdiction of a court of limited jurisdiction which
The statute in force at the time seems to have been substantially complied with. As we view them, the stipulations and conditions in the statement of the Fergusons are broad enough to include the right of inheritance, and the decree of the court is in accordance therewith.. The substantial conformity of the decree with the requirements of the statute malees it conclusive, and all the relations of parent and child therein enumerated must be held to attach.
It is therefore recommended that the decision heretofore rendered in this cause be overruled, and the judgment of the trial court be reversed, and the cause remanded for further proceedings.
By the Court: For the reasons stated in the foregoing opinion, the former opinion rendered in this case is overruled, the judgment of the district court reversed and the cause remanded.
Reversed and remanded.
Second motion for rehearing fthed.