Abney v. De Loach

• Decision Date: 26 July 1888
• Citation: 84 Ala. 393,4 So. 757
• Parties: ABNEY ET AL. v. DE LOACH ET AL.
• Court: Alabama Supreme Court

4 So. 757

84 Ala. 393

ABNEY ET AL. v. DE LOACH ET AL.

Supreme Court of Alabama

July 26, 1888

Appeal from chancery court, Monroe county; THOMAS W. COLEMAN Chancellor.

Bill by G. J. Abney et al., nephew and nieces, and claiming to be heirs of John N. Sanders, deceased, against John De Loach, the administrator, Rebecca Sanders, the widow, and John Sanders Mims, alias John Sanders, as one who claims to be solely entitled to the estate, subject to the rights of the widow, for a settlement of the estate. A demurrer to the bill was sustained, and the complainants appealed. The declaration of adoption mentioned in the opinion, as set out in the bill, is as follows:

" The State of Alabama, Monroe County: Know all men by these presents, that we, John N. Sanders and Rebecca Sanders his wife, of said county and state, do hereby declare, in the presence of W. C. Sowell and Arthur T. Sowell, that we desire to adopt and do hereby adopt John Sanders Mims, a male child of David Crocket Mims and Nancy Mims, of ___ years of age, so as to make him, the said John Sanders Mims, capable of inheriting our and each of our estate, real and personal; and we do further declare that it is our desire that the name of said child be changed from John Sanders Mims, its present name, to John Sanders. Made and signed this the 25th day of May, A. D. 1883.

"In presence of W. C. SOWELL.

J. N SANDERS. [L. S. ]

"T A. SOWELL.

R. F. SANDERS. [L. S. ]

" State of Alabama, Monroe County: Before me, W. C. Sowell, judge of probate in and for said county, personally appeared John N. Sanders and Rebecca Sanders, his wife, and who are known to me to be the declarants in the above and foregoing declaration, and, being informed of the contents of the declaration, acknowledged before me that they executed the same voluntarily on the day the same bears date. Given under my hand this, the 25th day of May, A. D. 1883.

"W. C. SOWELL, Judge of Probate, Monroe County."

Cumming & Hibbard, for appellants.

Watts & Son and N. Stallworth, for appellees.

SOMERVILLE J.

The bill is filed by certain kindred of John N. Sanders, deceased, claiming to be heirs and distributees of his estate, and seeking to bring the administrator to a settlement of his trust in a court of chancery. The bill makes one John Sanders Mims, alias John Sanders, who is a minor, a party defendant, as one who claims to be solely entitled to the estate, subject to the dower and distributive rights of the widow of the deceased. This claim is stated to be based on a declaration in writing, executed by John N. Sanders, the deceased, during his life-time, and attested, acknowledged, and filed for record in the office of the judge of probate of Monroe county; which instrument purports to adopt said minor as the lawful heir of the intestate, under the provisions of our statute regulating the mode of adopting children. Code 1886, §§ 2365-2368; Code 1876, §§ 2743-2745; Code 1852, §§ 2009-2011. Section 2365 of the present Code, which has remained unaltered in phraseology since the Code of 1852, (section 2009,) where the statute first appeared in its present form, has reference only to proceedings to legitimate bastard children. It declares that this may be done by the father of the bastard, by his making a declaration in writing, attested by two witnesses, setting forth certain specified facts, duly acknowledged by the maker, or probated by one of the attesting witnesses, "filed in the office of the judge of probate, and recorded on the minutes of his court." It is provided in the following section that "the father may, at the same time, change the name of the said child by stating in his declaration the name it is then known by and the name he wishes it afterwards to have." Code 1886, § 2366; Code 1876,§ 2744. Then follows this section as to the mode of adopting any child of another into one's family, which is the law governing the rights of the parties in this case: "Any person desirous to adopt a child so as to make it capable of inheriting his estate, real and personal, or to change the name of one previously adopted, may make a declaration in writing, attested by two witnesses, setting forth the name, sex, and age of the child he wishes to adopt, and the name he wishes it thereafter to be known by; which, being acknowledged by the declarant before the judge of probate of the county of his residence, filed and recorded as in the two preceding sections, has the effect to make the child capable of inheriting such estate of the declarant, and of changing its name to the one stated in the declaration; and for the services under this chapter the judge of probate is entitled to a fee of one dollar." Code 1886, § 2367, (2745.)

Adoption is the taking into one's family the child of another as son and heir; conferring on it "a title to the privileges and rights of a child,"-an act, in other words, "by which a person appoints as his heir the child of another." Russell v. Russell, 84 Ala. 48, 3 South. Rep. 900. The right with us is purely statutory, and was never recognized by the rules of the common law. It was, however, a feature of the Roman law, and obtains in Germany and France, and some other continental nations of Europe, whose jurisprudence in this respect has followed the civil law. It prevailed also as a custom among the ancient Jews. Statutes regulating different modes of adoption prevail in, perhaps, a dozen or more of the American states. In this state, prior to the Code of 1852, the right of adoption was limited to the legitimation of bastard children by their fathers. The mode of procedure was for him "to file in open court, in either the county or circuit court" of the county in which he resided, a declaration or statement in writing, setting forth the name and age of the child, and the name of the mother, and his recognition of it as his natural child; which, after being signed by the father, was required to be attested by the clerk of the court in which it is filed, and "entered at full length of record." Clay, Dig. (1843,) p. 135, § 9. In most of the states, the mode pursued is by petition to the probate or other like court, stating the requisite facts, with the name and description of the child, and the desire of the petitioner to adopt it, alleging the consent of the child's parents or guardian to the act of adoption, and usually the child's consent, if over 14 years of age. A decree is made by the court on these facts, which judicially confers on the child the capacity or qualification to inherit, and other incidents of the status authorized by the statutes of the particular states where the proceeding is had. This is a judicial procedure, involving the rendition of a judgment by the court by which the new status of the child is determined, and from which an appeal is usually authorized to some superior tribunal. This course is pursued in Massachusetts, Pennsylvania, Kansas, Illinois, and other states. The other mode is the one now authorized in Alabama, Texas, California, Iowa, Vermont, and other states, which is intended to be more simple and inexpensive. It consists of a written instrument, declaration, or statement, more in the nature of a deed than anything else, which is required to be executed, attested, acknowledged, and filed for record in the probate or other court of cognate jurisdiction. This is nothing judicial connected with this simple procedure. Even the taking of the acknowledgment by the probate judge is purely a ministerial, and not a judicial, act. Halso v. Seawright, 65 Ala. 432. The maker or declarant is analogous to the grantor in an ordinary deed; the adopted child is the grantee; and the thing granted is the irrevocable right, capacity, or qualification to inherit or succeed to the property of the adopter, in case he should die intestate. This quasi deed is to be recorded, rather as a perpetual memorial of the fact of adoption than to subserve the purpose of constructive notice, as in the case of the conveyance of property. Ross v. Ross, 129 Mass. 243, 37 Amer. Rep. 321; Ballard v. Ward, 89 Pa. St. 358; Bancroft v. Bancroft, 53 Vt. 9; Ortiz v. De Benavides, 61 Tex. 60; Pina v. Peck, 31 Cal. 359; Tyler v. Reynolds, 53 Iowa, 146, 4 N.W. 902; Schouler, Dom. Rel. § 314; 2 Kent, Comm. *212 et seq. While these statutes authorizing adoption are in derogation of the common law, and for this reason are, in some respects, to be strictly construed, their construction cannot be narrowed so closely as to defeat the legislative intent which may be made obvious by their terms, and by the mischief to be remedied by their enactment. So much for the provisions and purposes of the statute, and the rule and analogies by which we are to be governed in its construction and application.

The declaration of adoption, with other accompanying papers, is set out in the bill in h c verba. It is signed by both J. N. Sanders, the intestate, and his wife, R. F. Sanders, and appears to be the joint and several act of each. It is attested by two witnesses, acknowledged, and filed for record with the probate judge of Monroe county, and was by him recorded, not "on the minutes of his court," but in a book kept by him for the recording of deeds and wills. The proceedings are in due form, unless some one of the objections specially taken to them by demurrer is well taken. These we proceed to consider.

It is first objected that the written declaration fails to state the age of the child, this being left blank. This does not in our opinion, invalidate the proceeding. If it be conceded that, contrary to the rule of the Roman law, no adult can be adopted under our statute, and that it applies exclusively to minors,-which we do not decide,-the word "child" used in describing the adopted person would ...