47 N.J. Eq. 302 | New York Court of Chancery | 1890
On January 23d, 1882, David Winans and Frances C., his wife, presented their petition to the orphans court of the county of Essex, praying for the adoption of Mary Luppie, a child then .about ten years old. The child’s father had died in its early infancy, leaving a widow with three children, of whom this was the youngest. Her mother, Mary Luppie, was still living, and did not consent to, but opposed, the petition. Mr. Winans, one of the petitioners, was the child’s legal guardian, having been .appointed by said court January 18th, 1882, and, as such, gave his written consent to the adoption. On May 13th, 1882, the orphans court decreed that the prayer of the petition should be .granted, holding that the consent of the child’s mother was not necessary, because the child was under fourteen years of age, and also because the mother had abandoned the child. On appeal by Mrs. Luppie to the prerogative court, it was there, on June 23d, 1883, .adjudged that the statute required the conseut of parents to the adoption of a child, as well when it was under fourteen years old as afterwards, and that Mrs. Luppie had not abandoned her child, and consequently that the orphans court had no authority to decree in favor of the adoption. On June 25th, 1883, Mr. Winans having died in the meantime, Mrs. Winans appealed to this court.
The decision of the legal questions presented depends upon '“An act providing for the adoption of children,” approved March 9th, 1877. Rev. p. 1345. The first section, after enacting that children may be adopted, has the following language:
“ Provided, that, if such child or children be of the age of fourteen years or over, the written consent of such child or children to such adoption, duly acknowledged, must be obtained and presented with the petition, and also the written consent of the parent or parents, if living and not hopelessly intemperate or insane; if both parents should be dead, or unknown, or hopelessly intemperate or insane, or shall have abandoned the child or children sought to be adopted, then and in such case the written consent, acknowledged as aforesaid, must be obtained from the legal guardian of such child or children; and if there be no legal guardian, then such consent must be obtained from some discreet and suitable person appointed by the court to be the next friend of :such child or children sought to be adopted.”
• We understand the clauses above quoted to consist of two-separate provisos — the first requiring the consent of the child, in case it has attained the age of fourteen years; the second, without regard to the child’s age, requiring the consent of parents, if' living and known and not hopelessly intemperate or insane, and if they have not abandoned the child, or when, for any of these-causes, the consent of parents is dispensed with, then the consent of the legal guardian, or, if none, of the next friend, is requisite.
We are therefore brought to the second question in the cause,, whether the mother had abandoned the child, and so rendered it inessential to obtain her written consent to the adojDtion.
The statutory notion of abandonment does not necessarily, we-think, imply that the parent has deserted the child, or even ceased: to feel any concern for its interests. It fairly may, and in our-
It remains to determine whether an abandonment of this character was shown.
The facts of the case need not be here detailed. The parties will find them stated, substantially as we believe them to be, in the opinion of the learned judge who presided in the Essex orphans court. They indicate that, from the time when the child was less than a year old until it was about five years of age, it was permitted by Mrs. Luppie to live in Mr. Winans’s family, where it was called by his name and treated in all respects as a daughter. Then for several months it lived with Mrs. Luppie; but at the end of that period, she, finding her circumstances too straitened, and that Mr. and Mrs. Winans were anxious and abundantly able to educate and bring up the child as their own, gave it up to them entirely, saying that she would never ask for it again except to see it, and that she wanted them to adopt it. From that time until the little girl was ten years old she was nurtured, maintained and educated, both secularly and religiously, as a daughter of Mr. and Mrs. Winans, in a
In our judgment, Mrs. Luppie definitely determined, when her child was between five and six years old, to transfer to Mr. and Mrs. Winans all her parental duties and to surrender to them all her parental claims with regard to this little girl, and continued in that purpose and a course of conduct accordant with it for so long a time that she could not, without great injustice to her daughter and those who in consequence had become attached to her, resume the rights and obligations which she had before renounced. She had therefore, within the statutory sense, abandoned her child, and her consent was not legally necessary to the adoption.
For these reasons, we think the decree of the prerogative court should be reversed, and the decree of the orphans court should be affirmed.
For affirmance — None.
For reversal — The Ci-iiep-Justice, Dixon, Garrison, Magie, Scudder, Van Syokel, Brown, Clement, Cole, Smith, Whitaker — 11.
The opinion of the orphans court above referred to is reported in 5 N. J. L. J. 250. — Rep. . :