130 Neb. 375 | Neb. | 1936
On September 4, 1913, Ernst Zehner, who died intestate November 22, 1930, adopted Fred Zehner.who at the time of his birth was named Horace Clark. Fred Zehner filed a petition of intervention in the probate proceeding, the prayer of which is that he be decreed the sole and only heir of Ernst Zehner, deceased. Agatha Katherina Lang, a sister of the deceased, contested the claim of Fred Zehner that he is the sole heir at law, and the prayer of her answer to intervener’s petition was that she be decreed the sole and only heir of deceased. The county court entered a decree of distribution after a hearing upon the issues raised between Fred Zehner and Agatha Katherina Lang, finding that the former was the legally adopted son of the deceased at the time of his death and is the sole and only heir at law. Agatha Katherina Lang appealed to1 the district court from the order allowing said final account and from the decree of heirship and distribution of said estate. After a trial the district court found “That the adoption proceedings in Scotts Bluff county, Nebraska, wherein Fred Zehner was adopted by Ernst Zehner and Irene Zehner, are voidable as to the natural parents of said Fred Zehner. * * * That the adoptive parents, and all those claiming through and under said adoptive parents of said Fred Zehner, are estopped to deny the validity of said adoption proceedings, and that Fred Zehner is the legally adopted son of Ernst Zehner, deceased, and is the sole and only heir at law of the said Ernst Zehner, and is entitled to inherit his estate.”
Upon appeal to this court, it is contended by the appellant, Agatha Katherina Lang, that the decree is erroneous for the reason that the adoption proceedings were void
On March 27, 1912, a petition was filed in the district court for Lancaster county as a juvenile court, alleging that Horace Clark, who was born March 14, 1912, was a neglected and dependent child and that his mother was Stella Clark of Roca, Nebraska. A summons was issued to Stella Clark, the mother, and upon service, she appeared in court with the child, and the court found that Horace Clark was a dependent child and a ward of the court; that his mother was unable to support him, and the whereabouts of his father was unknown, and that it was to the best interest of said child that a guardian be appointed for him. The court then appointed the board of control as guardian of the person of Horace Clark, and no further order was ever made by said court in this case.
Thereafter, on July 15, 1913, the deceased, Ernst Zehner, and his wife, Irene Zehner, filed a petition in the county court of Scotts Bluff county praying for a decree of adoption of said Horace Clark. Attached to this petition was a relinquishment and consent to adoption signed by the board of control, by Etta Catón, agent. A notice was given by the court that said petition would be heard on September 4, 1913, and was-published in the “Gering Wasp,” a newspaper, for four consecutive weeks, but the last publication was only five days before the date of hearing, instead of the ■ten days required by statute. On September 4 the court entered a decree finding that the board of control had consented to the adoption by Ernst Zehner and Irene Zehner and entered a judgment that Horace Clark was the adopted son of the parties.
Agatha Katherina Lang contends that the consent of the board of control adds nothing to the validity of the proceedings because the statute authorizing the juvenile court to appoint the board of control as guardian of the person of the minor is unconstitutional and void for the reason that the county court is given exclusive jurisdiction over guardianship matters by the Constitution. It is unnecessary to pass upon the validity and effect of these statutes, for this court is determined that the adoption proceedings cannot be collaterally attacked by Agatha Katherina' Lang to prevent the adopted child from inheriting from the adoptive father.
The answer of Agatha Katherina Lang to the petition of intervention of Fred Zehner alleges that the decree of adoption is void and a nullity. This is a collateral attack upon the judgment of the county court. Our statutes, in common with those of most states, provide that notice shall be given the natural parents of a child. A failure to give the required statutory notice to the natural parents renders the adoption proceedings irregular and void, so far as regards the person not notified. Natural justice requires that natural parents should be notified of the proceedings before the custody of their child is taken from them and given to another. However, a parent, who appears, participates in, and consents to adoption proceeding and thereafter treats it as valid, is estopped to deny the validity thereof. Stone v. Stone, 119 Neb. 45, 226 N. W. 807. Where a parent is entitled to notice of adoption proceedings, he alone can complain of failure of notice. Slattery v. Hartford-Connecticut Trust Co., 254 Mich. 671, 236 N. W. 902.
The probate court acts judicially in an adoption proceeding. If there is a substantial compliance with the
The appellant raises many questions, which are not applicable to the issues or are unnecessary to a decision of this case. One of them is that the child did not continue to live with the adoptive father until his death, but only lived with him approximately ten months. It was no fault of the child, then under two years of age, that he did not continue to live with his adoptive father. The adoptive father was adjudged in a divorce action not to be a proper person to have the custody of his child. He made no complaint as to the regularity of the adoption proceeding. He always recognized it as valid. He put into operation the judicial machinery which entered the decree of adoption. Where an adoptive parent institutes such proceedings and procures an order of adoption and takes the child into his family, where it assumes the place and duties of his child, he will not be permitted to urge thereafter that the proceedings were void'. Paraphrasing the language of another court, the rule is stated as follows: Where adoptive parents seek and obtain a decree of adoption, and take the child into
The judgment of the district court is
Affirmed.
