53 Neb. 694 | Neb. | 1898
In 1885 Bertha Leola Martin, an infant, was adopted by Bhadrach Cole and Agnes, his wife. During the minority of the child Bhadrach (’ole died, Bertha remaining with his willow until the latter’s death severed the relationship, when Bertha returned to her mother, with whose consent the Coles had adopted her. In the course of settlement of Bhadrach Cole’s estate an order of distribution was made, whereby $300 ivas set.apart for Bertha, and the remainder apportioned among the children of her foster'parents. Thereafter this proceeding was begun in the county court wherein the adoption had been effected and the ('State of Bhadrach Cole was administered, by Bertha Mai tin, through her mother as guardian, to set aside the.order of distribution and award to Bertha the same rights of inliei itance as rested in her foster brothers and sisters. The basis of- the proceeding was that there had been no service of notice of the hearing of the application for the order of distribution other than by publication, and that Bertha liad not been represented by guardian ad litan. That such was the fact was conceded. The county court, refused to vacate the original order, but the district court on appeal set it aside and awarded to Bertha her proportionate share in the estate, as if she were a daughter in fact. This appeal is from that order.
It is suggested that the action ivas not properly brought: Tfee contention is that tilo right to vacate
The law with reference to the adoption of children is found under title 25 of the Code. It has been amended since the relations in question were created. As it then stood it provided in effect that the parents should .file with the probate judge a signed and sworn statement relinquishing all right to the custody and control' over the child and all claim to services and wages “to the end that such child shall be fully adopted by the party or parties” desiring to adopt such child. The person adopting was required to file a similar statement that he freely and voluntarily adopted the child as his own, “with such limitations and condit’ons as shall be agreed upon by the parties,” and then, as a proviso, was added this language: “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 bim or her equal rights, privileges, and immunities of children born in lawful wedlock.” (Code of Civil Procedure [Compiled Statutes 1895], sec. 797.) A subsequent section (799) provided for the entry of a decree “in accordance with the conditions and stipulations of such state
“We, Shadrach Cole and Agnes Cole, being first duly sworn, depose and say that we are residents of Cass county, Nebraska. That we do freely and voluntarily adopt Bertha Leola Martin, a- female child four years of age, the daughter of Mary Martin (the only surviving parent of Bertha Leola Martin) as our own, with the following limitations, to-wit:
“First — If Bertha Leola Martin remains with us until she arrives at her majority, she shall receive from us the sum of five hundred dollars.
“Second — If we should both die prior to her majority, her mother if living shall have control over her,— and we bestow upon her equal rights and privileges of children born in lawful wedlock.
“Shadrach Cole.
“Mrs. Agnes Cole.”
The decree, after a bare recital of the proceedings, was as follows:
“It is therefore considered and adjudged by me that the right to the custody of, and power and control over, said Bertha Leola Martin, and to her services and wages by her mother, Mary Martin, shall and do cease and de*698 termine from this date, and that said Bertha Leo! a Martin shall be the adopted child of said Shadracli Oole and Agnes Cole upon the conditions of the sworn statements m ade herein and shall * * * and be subject to their exclusive custody and control and shall possess all the rights and privileges of children born in lawful wedlock.”
The question presented is whether the first stipulation of the articles of adoption, providing for a payment of $500, is an exclusive provision as to property rights, or whether, on the other hand, it is a cumulative positive provision, leaving to the adopted child also the privileges, with jegard to inheritance, that actual children enjoy. An inteiesiing field for discussion is thus opened up, blit we agree with counsel for the appellants that “the action is dependent entirely upon the construction of the articles of adoption,” and it therefore presents no question of general law justifying an extended opinion. Tt cannot be doubted that under the statutes it was perfectly competent for the foster parents to bestow upon the child rights of inheritance as full as if she were their own, —a child born in lawful wedlock, in the awkward phraseology of the statute. Some stress is laid upon the varying terms of the section regarding the articles of adoption and that, regarding tin1 decree. The claim is that the child is only entitled to the right of inheritance when it is so stated in the decree. Whether the phrase “if so stated in such decree” applies to such matters as the rights of the child or only to the custody Ave need not inquire, because the preceding section requires the decree to follow the articles of adoption; and it could hardly be contended that the court Avould be authorized by decree to confer such rights except as expressly or impliedly conferred by the articles of adoption. This decree incorporates the provisions of the articles by reference thereto, and expressly confers, in the language of both the articles and the statute, the rights and privileges of children born in laAvful wedlock. The omission of the word “immunities” cm have no significance, The right of inheritance
Affirmed.