Appeal of Cummings

• Decision Date: 09 March 1927
• Citation: 136 A. 662
• Parties: Appeal of CUMMINGS.
• Court: Maine Supreme Court

136 A. 662

Appeal of CUMMINGS.

Supreme Judicial Court of Maine.

March 9, 1927.

Exceptions from Supreme Judicial Court, Cumberland County, at Law.

Petition by Nellie F. Cummings for leave to adopt a minor child, in which Jessie F. Cummings, the child's mother, was given legal notice. Petition for adoption was granted and the mothers appeal from the decree of adoption dismissed by a single justice, and she brings exceptions. Exceptions sustained.

Argued before PHILBROOK, DUNN, DEASY, STURGIS. BARNES, BASSETT, and PATTANGALL, JJ.

Harry B. Ross, of Boston, Mass., and F. J. Laughlin, of Portland, for appellant.

Edmund P. Mahoney, of Portland, for appellee.

DEASY, J. Jessie F. Cummings, the appellant, is the divorced wife of Ralph G. Cummings and the mother of Evelina F. Cummings, a minor child. Nellie F. Cummings, Evelina's grandmother, petitioned under the statute (R. S. c. 72, § 35, as amended [Laws 1921 c. 124; Laws 1923, c. 184]) for leave to adopt the child. The father consented in writing. The child's mother (the appellant) was given legal notice. R. S. chap. 72, § 36. The probate court, finding "that the mother is unfit to have the custody of said child," granted the petition for adoption.

The question before this court is whether the mother has a legal right to appeal from the decree. Upon this issue the single justice hearing the case decided against her, dismissing the appeal. Thereupon she brings the case forward on exceptions.

Revised Statutes, chap. 67, § 31, provides that—

"Any person aggrieved by any order, sentence, decree or denial of such [probate] judges, * * * may appeal therefrom to the Supreme Court."

Is the child's mother "aggrieved"? The point has not been settled. Moore v. Phillips, 94 Me. 422, 47 A. 913, cited by the appellee, is not decisive. There the mother lost her right of appeal through failure to give bond.

The law does not base the right of appeal upon sentimental grounds. "Aggrieved" does not mean grief-stricken. A fortiori it does not mean merely dissatisfied.

In legal acceptance a party is aggrieved by a probate decree that operates on his property or "bears upon his interest directly." Deering v. Adams, 34 Me. 41; Lunt v. Aubens, 39 Me. 392.

The decree in the present case does not operate upon property of the appellant. But there are interests—tangible, valuable, enforceable interests—which are not property.

(1) Because the decree bears directly upon her interest, the statute makes the mother a necessary party in the probate court proceeding. If she does not consent to the adoption, notice must be given to her. R. S. chap. 72, § 36.

(2) The mother is one of the child's heirs presumptive. By depriving her of this status a decree of adoption bears upon her interest, though it does not operate upon her property.

(3) The probate decree finds and declares that the appellant "is unfit to have the custody of said child." If this is an erroneous finding, the mother has a direct interest in having it corrected.

(4) The mother has (jointly with the father) the right to the child's care and custody. R. S. chap. 64, § 44.

This is a right enforceable against all the world, except the father. The decree of adoption absolutely takes away from her this legal right.

By the decree the mother is "divested of all legal rights in respect to such child, and he is freed from all legal obligations of obedience and maintenance in respect to [her]." R. S. chap. 72, § 38.

Such a decree bears directly upon the mother's interest. But assuming that the mother is aggrieved by the decree the appellee still denies her right of appeal. It is argued that R. S. chap. 67, § 31, giving "any person aggrieved" an appeal from a probate decree, is, so far as relates to decrees of adoption, repealed or, at all events, superseded by the later statute specifically authorizing appeals from such decrees.

The earlier general statute (omitting irrelevant words) is as follows:

"Any person aggrieved by any * * * decree, * * * of such [probate] judges, * * * may appeal therefrom to the Supreme Court." R. S. chap. 67, § 31.

The later specific act reads thus:

"Any petitioner, or any such child by his next friend, may appeal from such decree to the supreme court of probate, in the same manner and with the same effect, as in other cases, but no bond to prosecute his appeal shall be required of such child or next friend, nor costs be awarded against either." R. S. chap. 72, § 39.

It is argued that this act impliedly repeals or supersedes the general statute.

This would be true if the later act were repugnant to the former (U. S. v. Tynen, 11 Wall. 92, 20 L. Ed. 153), if it were "absolutely conflicting" (Collins v. Chase, 71 Me. 436), or were "so clearly repugnant and inconsistent that they cannot stand together" (Newport v. R. R. Co., 123 Me. 387, 123 A. 174), or if it clearly appears that a repeal or substitution is intended (25 R. C. L. 917).

But "a critical comparison of these two statutes under consideration dissipates any apparent repugnancy." Eden v. Southwest Harbor, 108 Me. 494, 81 A. 1005.

It is apparent that the later statute is not designed as a substitute for the former nor to limit it, but rather is intended to supplement and extend it.

Under the former statute the child...