195 Mass. 187 | Mass. | 1907
We think it manifest that the ruling by which the resolution passed by the State board of charity on March 18, .1904, was excluded was correct. Indeed, there has been no direct argument to the contrary, although, as this exception is referred to in the opening.statement of the respondent’s brief, . we have not felt at liberty to treat it as waived. The views of • the members of the board, stated in that resolution, however commendable in themselves were not material to any issues involved in the hearing. It was the duty of the court itself to
Statutes relating to adoption are in alteration of the common law and must be strictly followed in all essential particulars. Foster v. Waterman, 124 Mass. 592, 594, 595. Johnson v. Terry, 34 Conn. 259. Watts v. Dali, 184 Ill. 86. Sarazin v. Union Railroad, 153 Mo. 479. Furgeson v. Jones, 17 Ore. 204. Ex parte Clark, 87 Cal. 638. The child whose adoption is sought is illegitimate. It is provided by our statute that “ illegitimacy shall in no case be expressly averred upon the record.” R. L. c. 154, § 2. Sts. 1902, c. 544, § 22; 1904, c. 302. This petition describes the child as the “child of Mary Jamrock, a single woman.” The respondent contends that this is an express averment of illegitimacy within the meaning of the statute, and that this violation of the statute makes the petition incurably bad and avoids the whole proceeding; that the defect is like that which was considered in McDonald v. Green, 176 Mass. 113, and accordingly that no valid decree of adoption could be made.
Assuming that this contention is open to the respondent upon these exceptions, in our opinion it cannot be sustained. The present statute is a substitute for the original provision of R. L. c. 154, § 2, that the fact of illegitimacy should in no case appear upon the record. This change of language must be presumed to have been made advisedly. There is a plain distinction between forbidding a fact to appear upon the record by inference or otherwise, and forbidding the pleader from making an express averment of that fact. If the statute had required an express averment of illegitimacy to be made, an inferential averment like that in question would not have been sufficient at common law. Atwood v. Caswell, 19 Pick. 493. Salt Lake City National
The first request rightly was refused, upon the finding that the mother, for more than two years continuously prior to this petition, had suffered her child to be supported as a pauper by the Commonwealth. R. L. c. 154, § 3. Unless on the evidence this finding was erroneous as a matter of law, it must stand; for the case comes before us only on exceptions, without any appeal. It is not contended that the child was not supported as a pauper. Opinion of the Justices, 11 Pick. 538. The respondent’s contention is that this finding was erroneous, because the proceedings by which the child was committed to the custody of the State board of charity and supported by the Commonwealth were adversary to her, that she was unable to resist them, that she did not acquiesce in them, and accordingly that she cannot properly be said to have “ suffered ” her child to be supported by the Commonwealth. She contends that the word “ suffer ” implies not merely non-resistance to that which is done, but also an approval of or at least an acquiescence in it, with an ability to prevent it; and that she cannot be said to have suffered her child to be so supported unless she either approved of this result or failed to make reasonable efforts to prevent it. To show that this is the meaning to be put upon the word “ suffer ” she cites, among other cases, Hobson v. Middle
The other requests for rulings seem to us to have been disposed of by the findings. It is undoubtedly the general policy of the Commonwealth to secure to those of its wards who are children of tender years the right to be brought up, where this is reasonably practicable, in the religion of their parents. St. 1905, c. 464, § 1. But it is the right of the children that is protected by this statute, The rights of the parents are still regulated by the same principles as before. The mother of an illegitimate child has doubtless all the rights of other parents. Wright v. Wright, 2 Mass. 109. Barnardo v. McHugh, [1891] A. C. 388. Regina v. Nash, 10 Q. B. D. 454. Rex v. New, 20 T. L. R. 583. Kerrigan v. Hall, 4 Fraser, Ct. of Sess. 10. But in such a case as this it is not the rights of the parent that are chiefly to be considered. The first and paramount duty is to consult the welfare of the child. The wishes of the parent as to the religious education and surroundings of the child are
Nor could the fourth request have been given. We do not regard the constitutionality of the provisions of R. L. c. 154, as to adoption, as now open to question. This was assumed in Stearns v. Allen, 183 Mass. 404. Similar statutes have been held to be constitutional in other States. In re Stevens, 83 Cal. 322. State v. Meyer, 63 Ind. 33. Nugent v. Powell, 4 Wyo. 173. Van Matre v. Sankey, 148 Ill. 536. The decision
Nor has this mother been discriminated against by reason of her poverty. It appears that she was employed in a cotton mill; and there is nothing to overcome the presumption that she was able to support her child. The custody of her child was taken from her by reason of her misconduct; she has acquiesced in this, and for several years has suffered the child to be supported as a pauper by the Commonwealth. Under these circumstances, the statute may properly provide that her consent to its adoption shall not be necessary. Wellesley v. Wellesley, 2 Bligh, (N. S.) 124, 129, 133. In re Moore, 11 Ir. C. L. 1. See the statutes and cases cited in 1 Am. & Eng. Encyc. of Law, (2d ed.) 729, and in 1 Cyc. 922.
Accordingly the fourth request could not have been given.
We have treated the questions arising upon these exceptions as if the effect of this decree of adoption would be to entitle
Exceptions overruled.