185 Wis. 33 | Wis. | 1924
The petitioner, a brother of Arthur O. Pugh, deceased, filed his petition in the county court of Racine county praying for an order vacating the order of adoption to the end that his rights as an heir at law to the estate of Arthur O. Pugh might not be prejudiced by reason of the said order of adoption. The petition signed by Arthur O. Pugh for the adoption of Grace M. Bearby set forth that “Rose Pugh is and has been for many years last past his lawfully wedded wife. That said wife is and has been for about the last year, an incompetent person and for that reason cannot join in this petition.” The petition was signed by Arthur O. Pugh, but was not signed by his wife.
Sec. 4021, Stats., in 1906, as now, provided that any inhabitant of this state may petition the county court in the county of his residence for leave to adopt a child not his own by birth. It further provided, however, that “no such petition made by a married person shall be granted unless the husband or wife of the petitioner shall join therein, excepting that when such petitioner shall be married to the natural father or mother of such child then such joinder by such father or mother shall be deemed unnecessary.” The petition of Arthur O. Pugh disclosed on its face that he was a married man and that his wife did not join in the petition for adoption.
Adoption proceedings are statutory, and it is fundamental
It is said that the statute should not be construed as requiring the wife to join where, as here, she is incompetent. The statute specifically provides for an exception, that exception being where the wife or husband of the adoptive parent is the natural parent of the adoptive child. This makes it rather plain that the statute intended no other exceptions. . In fact, it may well be doubted whether the legislature would authorize an adoption that would take the child into a home where one of the adoptive parents was incompetent, and especially if that be the mother. We can find no reasonable ground for giving the statute the construction urged, and it must be held that the adoption petition gave the court no jurisdiction to act upon the matter.
While we have no difficulty in arriving at the conclusion that the county court was without jurisdiction to enter the order of adoption, we must hold that the petitioner is in no
“So a conclusion is reached, on the merits of the case, that the decision of the circuit court was right and must be affirmed. But if we were to go further, the result would not be otherwise. The proceedings to avoid the judgment of adoption are clearly of an equitable nature, and after the lapse of many years, during which time the status of the subject of adoption has been recognized as legally fixed by the judgment of the county court, by all parties to the proceedings, one of those parties on whose motion the-judgment was rendered is in no position to appeal to the equity powers of the court to declare it void. The plainest principles of estoppel apply to the situation. Appellant petitioned for the judgment. It was entered on her motion. The person most interested, the child, was a ward of the court, and its status for life was entirely and irrevocably changed by the result of the proceedings if they were valid. Their validity was recognized by the appellant till she became pecuniarily interested in changing her position. Clearly, she cannot be aided by a court of equity to do that to- the injury of the person she was instrumental in locating in her. family as her adopted son.”
The heirs of the adoptive parents have no better standing in a court of equity to attack the adoption proceedings than their ancestors would have had. Appeal of Wolf, 10 Sadler (Pa.) 139, 13 Atl. 760; Milligan v. McLaughlin, 94 Neb. 171, 142 N. W. 675, 46 L. R. A. n. s. 1134; Estate of McKeag, 141 Cal. 403, 74 Pac. 1039; In re Evans, 106 Cal.
By the Court. — Order affirmed.