137 N.Y.S. 92 | N.Y. Sur. Ct. | 1912
On the 11th day of January, 1902, Albert A. Allen and Frelove Allen, his wife, appeared before the surrogate and made application for an order confirming an agreement for the adoption by them of their infant grandson, Leland A. Johnston. The mother of the minor was then deceased, but his father, Jay Johnston, the petitioner in this proceeding, is living. He did not appear upon such application, nor did he execute any consent to such adoption, nor did he have any notice of the application, but proof was given that the father had abandoned the child, and an order was accordingly made confirming such adoption. As soon, however, as the father learned of such order, he made an application for abrogation of such adoption, alleging in his moving papers that he had made proper provision for the maintenance of the child with his mother and strenuously controverting the charge of abandonment.
Two questions arise in this controversy.
The first is one .of law relating to the method of procedure in an application of this character, the second relates to the merits—that is, as to whether or not the father had abandoned the child, thereby rendering his consent unnecessary under the statute.
Section 110 of the Domestic Relations Law defines adoption as, “ The legal act whereby an adult takes a minor into the relation of child, and thereby acquires the rights and incurs the responsibilities of parent in respect to such minor.”
Section 111 of the same act provides, among other things, that in order to secure an adoption it is necessary to procure the consent “ of the minor, if over twelve years of age, of the foster parent’s husband or wife, unless lawfully separated, or unless they jointly adopt such minor,” and of the parents or
Section 114 of the act defines the legal effect of such adoption as follows: “ Thereafter the parents of the minor are relieved from all parental duties towards, and of all responsibility for, and have no rights over such child or to his property by descent or succession.”
It is also provided that the minor shall take the name of the foster parents and, while its rights of inheritance and succession from the natural parent remain unaffected, the foster parents and minor sustain towards each other the legal relation of parent and child including the right of inheritance from each other.
Section 116 of the act provides a method whereby abrogation of an adoption may be obtained, viz.: “ By the consent of all parties interested; ” and section 117 provides for abrogation of an adoption from a charitable institution.
It can hardly be contended that, inasmuch as the statute has prescribed a method of procedure in these two instances, an order confirming adoption cannot be reviewed or abrogated in any other manner.
The county judge and surrogate ar§ given jurisdiction to make an order confirming adoption and no reason is apparent or even suggested why such an order is exempt from the operation of the provisions of subdivision 6 of section 2481 of the Code of Civil Procedure.
This section defining the incidental power of a surrogate provides, “A surrogate, in court or out of court, as the case requires, has power: To open, vacate, modify, or set aside, or to enter, as of a former time, a decree or order of his court; or to grant a new trial or a new hearing for fraud, newly discovered evidence, clerical error, or other sufficient cause.”
In Matter of Armstrong, 72 App. Div. 286, 288, the court,, in considering the power of the surrogate over his own orders, and decrees, says: “ The order and decree having been made-without jurisdiction of the parties affected thereby, and being-for that reason void, the question arises as to the proper-practice to be adopted to have the order and decree annulled of' record. A void order or decree may always be attacked collaterally, and without doubt, in this case on an application to-revive these proceedings, might be shown to be void and no harto a revival for that reason. Any attempt to enforce payment of the sum decreed to be paid might be resisted on the same-grounds ; but the parent apparently affected by the order and decree need not wait to test its validity but by a motion to vacate, may dispose of it.”
In Kamp v. Kamp, 59 N. Y. 216, the court said: “The want of jurisdiction makes the order and judgment of the court, and the record of its action utterly void and unavailable
In Skidmore v. Davies, 10 Paige, Ch. 316, the chancellor said: “ If the first order had been irregular as the appellant supposed, his remedy was not by appeal to the chancellor, but an application to the surrogate to set aside the order as irregular was the proper course.”
In Vreedenburgh v. Calf, 9 Paige, 129, the court says: “ And if the order was entered when the surrogate had no power to enter such an order, he not only had the right, but it was his duty to set it aside as irregular.”
In Pew v. Hastings, 1 Barb, Ch. 454, the court says: “ I think, therefore, the surrogate erred in this case in supposing that he had not the power to open the decree which had been taken by default.”
In Seaman v. Whitehead, 79 N. Y. 308, the court says: “The question arising in such a case relates to the jurisdiction of the surrogate and could properly be raised by a motion to set aside the order upon that ground. If void, it should have been vacated for that reason, and an appeal lies from an order denying the motion to vacate.”
In Matter of Trimm, 30 Misc. Rep. 493, and Matter of Moore, 72 id. 644, the proceedings were similar to the one now under consideration. In the first of these cases, Surrogate Marcus of Erie county held that a proceeding to set aside an adoption was the proper remedy. And in Matter of Moore, the county judge held to the same effect.
The method of procedure adopted by the moving party in this case being proper and regular, it only remains to ascertain the fact in regard to the allegation of abandonment.
Jay Johnston, the father, resides at Shingle House, Penn.; he is thirty years of age, in perfect health, of good moral character, a member of the Baptist church, and a barber by trade. His father died some years ago leaving a widow and five children, the youngest being now the age of nine years. One son, Donald, twenty-one year's old, is in college, and the daughter, nineteen years of age, is an operator in a telephone exchange.
Johnston resides with his mother. At the time of the death of Johnston’s father, he owned a farm near Shingle House, worth $2,000 and real estate in Virginia recently sold for $6,700. He left no will and the children became seized of this real estate upon their father’s death, subject to the widow’s dower therein. The son Jay is indebted to his father’s estate in the sum of $500, but still owns an equity in the estate of considerable value. The family still occupies the eighty-five acres as a home. Jay was married to the daughter of Mr. and Mrs. Allen at Olean, N. Y., February 1, 1905, and for some time thereafter they resided at Shingle House; the boy Leland was born in August, 1906. In August, 1910, Johnston with his wife and child visited relatives in Hornell, N. Y., and from there went to Wellsville, N. Y., where the wife became ill, and she with her husband and child returned to the home of her parents in Olean where she and the child remained until her death, September 23,1910. After going to Allen’s, an estrangement arose between Johnston" and his wife. He secured employment as a musician with a show company, left Olean in connection with such employment and did not return until the day of the wife’s funeral; on that day, and after the funeral, Jay had conversation with the Allens regarding the disposition of Leland. Mrs. Allen asserted that on account of her age she did not wish to assume the responsibility of caring for
While it appears that he had contributed but little to his mother, in money, toward the expense and maintenance of the child, yet it does not appear that she had ever applied to him for assistance in that respect. It was evidently assumed by the parties that the use of Johnston’s share of his father’s estate was sufficient compensation to his mother. Such was the situation when the Allens, having the temporary custody of Leland, made application for his adoption. As soon as Mrs. Johnston learned that such proceeding had been taken, she communicated with Johnston, who immediately returned from the west, where he was then employed, and took measures to secure thé possession of Leland and having accomplished that filed his application for abrogation of the adoption. Another circumstance of some importance: on one occasion after Leland had taken up his residence with his grandmother Johnston, Mr. Allen requested Johnston to consent to his adopting the boy, which request, Johnston very vigorously and peremptorily refused so that Allen well understood when he applied to the surrogate for the order in question, that he was acting in direct antagonism to the wishes of the father. In view of these facts,
In disposing of this matter, I have fully appreciated and understood the affection of the Allens for their little grandson, and I also realize that the boy’s financial interests might be best subserved by permitting the adoption to stand, but this does not affect the question involved.
Johnston had not abandoned his child, consequently the order of adoption was made without jurisdiction and being so made it must now be vacated and an order to that effect will accordingly be entered..
Decreed accordingly.