Allison v. Bryan
| Decision Date | 25 June 1908 |
| Citation | 97 P. 282,21 Okla. 557,1908 OK 138 |
| Parties | ALLISON et al. v. BRYAN. |
| Court | Oklahoma Supreme Court |
Rehearing Denied Sept. 12, 1908.
Syllabus by the Court.
Under the terms of section 36, art. 2, c. 59 (section 3795) Wilson's Rev. & Ann. St. 1903, the father of an illegitimate minor child, by publicly acknowledging it as his own, receiving it as such, with the consent of his wife, if he be married, into his family, and otherwise treating it as if it were a legitimate child, thereby adopts or legitimates such child, and it acquires the legal status of a legitimate child from birth.
Such father, desiring to so legitimate or adopt such child, may do so without the consent and against the will of the mother.
When such legitimation or adoption takes place, all the recriprocal responsibilities and duties between a father and a legitimate child obtain between him and such adopted child and he is charged with its support and education, and is entitled to its custody, services, and earnings.
Error from District Court, Cleveland County; C. F. Irwin, Trial Judge.
Petition by Anna Bryan for a writ of habeas corpus, to recover the custody of Kenner Whittaker Allison, Jr., a minor, against Kenner Whittaker Allison, Sr., and another. From a judgment of the district court awarding the minor to petitioner, on appeal from a probate court decree denying such relief defendants bring error. Reversed and remanded.
Anna Bryan, defendant in error, on the 14th day of February, 1906 filed in the office of the probate court of Cleveland county her petition and application for a writ of habeas corpus, for the purpose of recovering the custody of Kenner Whittaker Allison, Jr., a minor, in which she alleged that said child was of the age of three years, and was the illegitimate child of herself and K. W. Allison, Sr., who, with his wife, Mary G. Allison, wrongfully, unlawfully, and forcibly had taken possession of said minor child, and were keeping him at their home in said county, and depriving her, the mother, of its custody. A writ was issued on this application, and a return made thereon, in which the substantial allegations material to the issues on the final trial were as follows: That at the time of the issuance of said writ the said respondents had had the possession of said child for a period of 15 months that said possession was in all respects legal, and with the full knowledge and consent of the mother, the said petitioner; that in the month of October, 1904, in the city of Oklahoma City, it was mutually agreed by and between the said mother and the said respondent K. W. Allison that the care, custody, and education of said minor child should be intrusted to the respondents named, and that, in pursuance of said agreement, the child was delivered by the mother to them, and taken to their home in Cleveland county, and had until recently been in the peaceful and undisputed possession of said respondents, with the full knowledge and consent of petitioner. It was further alleged that the mother was not a proper person to have the care, custody, and training of her said child, and that respondents were, and were financially, able to give the same a comfortable home, and to properly provide and care for it. The foregoing recites substantially the material issues on which the case was finally tried and judgment rendered. The cause was tried before the probate court, and the child was awarded to the custody of respondents. Thereupon petitioner appealed the same to the district court, and on a trial of the cause, and after a full hearing, there was rendered a judgment awarding the child to petitioner, Anna Bryan, its mother, with the proviso that the respondents should be permitted to visit it, and it to visit them, under restrictions recited in the decree, and the costs of the proceeding were taxed to the respondents, who took the cause to the Supreme Court of the territory of Oklahoma by proceedings in error, and it is now before us for consideration.
C. M. Keiger and Shartel, Keaton & Wells, for plaintiffs in error.
Mosier & Dudley, Crockett & Johnson, and Howard & Fulton, for defendant in error.
Section 36, art. 2, c. 59 (section 3795) Wilson's Rev. & Ann. St. 1903, provides: On the trial of this cause in the district court it was agreed between the parties "that prior to the commencement of this action, the respondent K. W. Allison, Sr., had taken the minor child, to recover possession of which this action is brought, into his home, with the consent of his wife, and had acknowledged the child to be his child, and had treated it as a legitimate child, but that at no time was the possession of said child by the said K. W. Allison, Sr., with the consent of the petitioner." Section 6, art. 1, c. 59 (section 3765) Wilson's Rev. & Ann. St. 1903, provides: "The mother of an illegitimate unmarried minor is entitled to its custody, services and earnings." Defendant in error in the brief filed states the position taken as follows:
We believe that the evidence shows that either party is qualified to properly raise and care for the child, but the respondents, having taken possession of it, and claiming the right to its control and custody, and the mother contesting this right under section 6, above quoted, create an issue whose outline is marked by the citations from the statute, the admission made on the trial, and the quotation from the brief before us. The mother contends that, by reason of the fact that the child is illegitimate, unmarried, and a minor, the statute gives her the unqualified right to its custody, services, and earnings. The father, on the other hand, contends that by reason of having complied with section 36, above quoted, his right of possession is unqualified and absolute. Petitioner, as is seen, argues that, if the father of the child takes it into his family with the consent of his wife, and keeps it there for five minutes, or even one minute, it is sufficient to perfect the child's legitimation, and that this would accomplish the purpose, end, and aim of the statute, and give full force and effect to that statute, and also to the one under which the mother claims. In support of this argument, our attention is called to a number of authorities declaring the well-recognized rule of statutory construction that, when two conflicting statutes relating to the same subject are susceptible to a construction which will give force and effect to each, it is the duty of courts to adopt such construction. The solution of this will be found in a determination of the meaning, intent, and scope of section 36, which is identical with section 230 of the California Civil Code, in the construction of which, in the case of Blythe v. Ayres, 96 Cal. 532, 31 P. 915, 19 L. R. A. 40, the Supreme Court of that state says:
The statute says that, upon compliance with the conditions enumerated, the child is thereupon "deemed for all purposes legitimate from the time of its birth." Wilson's Rev. & Ann. St. 1903, § 5, art. 1, c. 59 (section 3764), provides: "The father of a legitimate unmarried minor child is entitled to its custody, services and earnings." If the acts mentioned make of it a legitimate child, does it not follow that, when such legitimation or adoption takes place, all the reciprocal duties between the father and a legitimate child would obtain between him and such illegitimate or adopted child, and, if so, is he not charged with its support and education, and would he not, ipso facto, be entitled to its custody services, and earnings? Numerous methods have been prescribed by the Legislatures of the different states for the adoption or legitimation of illegitimate children, but in each and all of them it will be found the courts have held...
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