183 Iowa 1030 | Iowa | 1918
The five defendants referred to in the briefs as the “Adams” defendants are the legitimate children of Clara Johnson Adams. They aver that Clara Johnson Adams was the illegitimate child of Hugh McKellar, and that the paternity was proved in the lifetime of McKellar; and they aver, also, that the paternity was recognized by Mc-Kellar in writing. In support of the allegation of paternity and the proof thereof in the lifetime of McKellar, reliance is had upon certain bastardy proceedings had in the circuit court of Clayton County against McKellar, on complaint of Elsa Johnson, wherein trial Avas had and verdict of guilty rendered, and judgment entered on September 26, 1876. By this judgment, McKellar was adjudged to pay certain installments for the support of the child. Clara Johnson Adams Avas such bastard child of Elsa Johnson.
In support of the allegation that the paternity was recognized by McKellar in writing, reliance is had upon certain articles of adoption, whereby one Svenson and wife adopted the child, and Avhereby McKellar, as the purported father thereof, consented to such adoption.
These facts, being found in favor of these defendants by the trial court, became the basis of the decree in their
It is further urged that there was a want of mutuality, in that, in no event, could McKellar have inherited from fhe child; and for such reason, a strict construction of the statute should prevail in favor of the legitimate heirs, and against the illegitimate and her heirs. Such is the general nature of the contest. The mere facts are not in dispute. The inferences and conclusions therefrom are in conflict. The contest is argumentative, and in the main pertains to questions of law.
“And it is hereby ordered and adjudged by the court that the judgment in this case, rendered in this court January 17, A. D. 1879, be and the same is hereby vacated from this date, on the execution by the necessary parties of the proper instrument in writing authorized by the statute for the adoption of children, said instrument to be one whereby the said child, Clara Johnson, shall be adopted by Olaus Svenson and his wife Sophia. Said Hugh McKellar and the clerk of the circuit court of Clayton County to signify their consent thereto by signing said instrument, and said Hugh McKellar to pay this day to the said Sophia Svenson the sum of $60; then the judgment in this cause to be vacated.”
On the same day, the following article of adoption was executed, pursuant to which the custody of the child passed to the adoptive parents:
“Know all men by these presents, that we, Olaus Sven-son and Sophia Svensou, his wife, of the town of Clermont in the county of Fayette in state of Iowa, in consideration*1035 of the sum of sixty dollars in hand paid by Hugh McKellar of the township of Highland in the county of Clayton in the state of Iowa, and in accordance with the order of the district court of said Clayton County this day made, do adopt as our own Clara Johnson aged four years, and confer upon said child all the rights, privileges and responsibilities which would pertain to her if born to us in lawful wedlock, and I, Hugh McKellar, an unmarried man, having the care and providing for the wants of said child, and being by the judgment of said court at its September term, 1876, declared to be the father thereof, do consent to the adoption aforesaid of the said Clara Johnson by the said Olaus and Sophia Svenson, the said child to be , hereafter called and known as Clara Svenson, and is to be given to the said Olaus and Sophia Svenson for the' purpose of adoption as their own child, the mother of said child being Elsa Johnson, and I, J. F. Thompson, clerk of the circuit court of said Clayton County, Iowa, do hereby give my consent to the' adoption as aforesaid.
“In witness whereof, we have hereunto subscribed our names this 19th day of January A. D. 1881.
“Olaus Svenson her
“Sophia (X) Svenson mark
, “Hugh McKellar
“J. F. Thompson
“Clerk of Circuit Court.”
The case, for the appellees rests .largely upon the fol- ■ lowing sections of the Code:
“Section.3384. Illegitimate children inherit from their mother, and she from them.
“Section 3385. They shall inherit from the father when the paternity is proven during his life, or they have been recognized by him as his children; but such recognition*1036 must have been general and notorious, or else in writing. Under such circumstances, if the recognition has been mutual, the father may inherit from his illegitimate children.”
Was the record in the bastardy proceeding, including the verdict and judgment, available to the appellees as proof of the paternity of the child ? Further, was it available to the appellees as evidence that the paternity was proven" during the life of the putative father? To answer these queries in the negative would be to render this part of Section 3385 meaningless.
No other form of proceeding is readily conceivable, under our statutes, whereby such proof could have been made in his lifetime. It is argued that the judgment entry did not declare the paternity. This fact was found by the verdict' of the jury, rendered in the light of the instructions of the court. In terms, the judgment of the court required the defendant to pay the costs and to pay the installments already" mentioned for the support of the child. The finding of guilt was essential to the entering of any judgment whatever against the defendant. We do not think it was essential to the validity of the judgment that it should have contained a recital of the verdict, or of the fact of defendant's guilt. The more strenuous contention of the appel-' lants is not at this point, and we pass it without further discussion. Section 4722 of the Code of 1873 provided:
“The court may, at any time, enlarge, diminish or vacate any order or judgment rendered in the proceeding herein contemplated, on such notice to the defendant as the court or judge may prescribe.”
Beading the order of the court in its entirety, its meaning is not obscure. It will bear no other' interpretation than that it was intended thereby to commute the payment of installments, and to terminate conditionally the further liability of the defendant therein for further payment. To put the contrary interpretation upon it is to render the entire order inconsistent with itself. By the very terms of such order, it recognized the binding force of the original judgment as an adjudication. Except for the binding effect of such original judgment, the court had no power to order the payment of $60 by the defendant, nor to attach the condition of adoption to the discharge of the defendant. The three successive orders of the court, made in May, 1877, January, 1879, and January, 1881, all rested upon the authority of the original judgment. They modified successively its requirements, but they did not impeach its validity. The last order did not, in terms, purport to vacate the original judgment, but only the judgment of January, 1879, which specified the installments of payment at that time exacted. The order in question was not based upon any reinvestigation of the facts, nor upon any challenge by the defendant of the verity of the judgment and the facts upon which it rested. Pursuant to such order, the defendant Me
“In order thereto, the consent of both parents, if living and not divorced or separated, or, if unmarried, the consent of the parent lawfully having the care and providing for the wants of the child, * * * shall be given to such adoption by an instrument in writing signed by the parties,” etc.
One of the conditions of the vacation order already set
“I, Hugh McKellar, an unmarried man, having the care and providing for 'the wants of said child, and being (by the judgment of said court at its September term, 1876, declared to be) the father thereof, do consent,” etc.
The parentheses are ours, and are used for convenience of reference.' It is contended by appellants that the parenthetical words amounted toan implied denial of the parentage, and that they indicated a mere submission to an unjust judgment. ■ It is not impossible that the language adopted was intended to cover mental reservations on the part of McKellar, but the words must be construed in the light of the purpose for Which they were incorporated by him into the instrument. If he had, in terms, denied the paternity, it would have rendered the article void on its face. The condition to the vacation of the judgment would thereby have failed. To imply a denial, therefore, where no direct denial was made, would be to work a fraud upon the adopted child and the adopting parents. If McKellar was not the parent having the care and providing for the wants of the child, then his name had no proper place in the instrument. The order of vacation required that such instrument should be executed by “the necessary parties.”
This rule has been one of the reproaches of the common law, which has shocked the legislative and judicial conscience of the civilized world. That a bastard has no inheritable blood is only a legal fiction. Legal fictions have their appropriate uses. They are the stepping stones of the law’s reasoning; the parables whereby its principles are illustrated. ’ When its reason fails, the fiction falls. The fiction that a bastard has no inheritable blood has been shorn of its reason in this state by legislation. It remains, therefore, a fiction only. Our legislation has conferred upon the illegitimate the right of inheritance, with appropriate safeguards as to the certainty of paternity. Why, therefore, should we deal with finespun theories of the common law as to inheritable blood? The only justification ever offered for the common-law fiction was that bastardy should be rendered odious. But bastardy is the sin of the parent; not of the child. The illegitimate child is as innocent as the babe of Bethlehem. Yet the common law held its fiction as a shield over the guilty parent, and frowned upon the guiltless child with the disdain of a Pharisee. Our early territorial legislation struck at the cruel injustice of this fiction. From territorial days until now, there has never been a time in this state when it has not been contradicted by existing legislation. The McGuire and Johnson cases were decided in response to the spirit of such legislation, and are in entire harmony therewith.
IV. It is urged that the putative father had no right of inheritance from the children of the illegitimate, and that, for want of mutuality, therefore, such children should have no right of inheritance from him. The argument has its force, as a rule of construction, and not otherwise. It
Furthermore, while the argument based upon the want of mutuality is directed in the brief only as against the descendants of the illegitimate, yet, if adopted, its logical result would be to withhold the right of inheritance from the illegitimate herself. This would be in direct contravention of the statute.
We reach the conclusion that the trial court correctly decided all features of the case. The case has been presented here on both sides with great ability and thoroughness. Nothing in the way of appropriate argument has been overlooked by counsel. After the fullest consideration of the briefs, we find ourselves content with the holding in Johnson v. Bodine, supra. The decree entered below is, therefore, — Affirmed.