37 N.J. Eq. 245 | N.J. Super. Ct. App. Div. | 1883
The orphans court, on the application of David R. Winans, on his petition, appointed him guardian of the person and estate of Mary Luppie, an infant under the age of fourteen years. The •appointment was made January 18th, 1882. On the 27th of the same month, Mary Luppie, mother of the infant, applied to the ■court to revoke the letters, and prayed that she herself might be appointed guardian. The infant had no property except her clothing, toys, books and other such articles, which had been provided. for her by Mr. Winans or members of his family or their friends. Neither he nor any of his family was related to or in any way connected with her. The mother had been a servant in ¡his family, and when her service there began she was a widow and had the child, which was the offspring of her and her de
The grant of letters of guardianship to Mr. Winans was made without notice to the mother of the child. Her counsel obtained an order to show cause why the letters should not be revoked and letters granted to her. The application for the decree of adoption, and the order to show cause, came on for hearing at the same time. At the hearing and in the beginning of the proceedings, the counsel of the mother moved the' court to revoke the letters of guardianship to Mr. Winans for want of notice. This motion the court denied, and proceeded under the order to show cause to hear testimony on the merits of the applications for guardianship and adoption. The result was, that by its decree of May 13th, 1882, it revoked, on the ground of want of notice, the letters which had been previously granted to Mr. Winans, denied the application of the mother, and again granted letters to Mr. Winans, and by its decree of the same date granted and declared the adoption. It was the duty of the court to grant the motion to revoke for want of notice when it was made, but its refusal to do so did not, under the circumstances, prejudice the appellant in any material respect. The opposing claims for guardianship were before the court for consideration under the order to show cause, and there is no substantial ground for complaint of want of notice as to the grant of letters to Mr. Winans which was made thereon, although the order to show cause only called on him to show cause why the letters granted to him should not be revoked and letters be granted to the mother, and did not call on her-to show cause against his application. He, however, is dead, and the guardianship granted to him is at an end. On the merits, I do not consider the action of the court in refusing the grant of letters to the mother erroneous under the circumstances. The child was committed by her to
As this matter stands before me, there is indeed now no claim to the guardianship in opposition to that of the mother, but I deem it best to give an opportunity for some proper person of Mr. Winans’s immediate family to make application for letters, and such application may be made in this court. The decree of
But not so the decree of adoption. That stands on different grounds. The statute provides that if the child whom it is proposed to adopt is over fourteen years of age, its consent in writing duly acknowledged must be obtained and presented with the petition; also the written consent of the parent, or parents, if living; but if both be dead or unknown, or hopelessly intemperate or insane, or shall have abandoned the child, there must be the written consent of the legal guardian, duly acknowledged, and if there be no guardian then some discreet and suitable person must be appointed by the court as next friend of the child, whose consent to the adoption must be had. It is silent as to the prerequisites where the child is under fourteen. There was in this case not only no consent on the part of the mother to the adoption, but, on the contrary, active opposition to the proceedings. The father of the child was dead. The mother was “ known,” was neither “ hopelessly intemperate ” nor “ insane.” Eor had she abandoned the child in any sense. The petition alleged none of these things against her. It did not even allege that she was an improper person to have the care and education of the child. It alleged that she had for many years left the child with the petitioners under an agreement between her and them that they should adopt it; that was not by any means abandonment within the meaning of the statute. So far from deserting or abandoning the child in the sense of the statute, she was desirous of keeping it, notwithstanding that agreement, and her effort to regain possession of it was probably no small incentive to the institution of the proceedings under consideration. The court, by its order to show cause on the petition, ordered that notice of the application be given to her. The child was under fourteen years of age, and the court, as appears by the opinion, construed the statute as requiring no consent, either on the part of parent or child, to the adoption in such a case, but held that in such' cases the statute confides the whole matter to the discretion of the orphans court, without regard to the wishes of either parent or child. This construction is entirely inad
It seems entirely manifest that in this case the welfare of the child would be very greatly promoted by the adoption, especially in view of the very handsome pecuniary provision which it was-said on the hearing Mr. Winans has made for it in his will, if the decree of adoption stands. That consideration, however, while it makes decision painful, cannot aifect my judgment as to the legal validity of the decree. I must hold it invalid. It, will therefore be reversed, with costs.