Appeal of Woodward

• Decision Date: 03 August 1908
• Citation: 81 Conn. 152,70 A. 453
• Parties: Appeal of WOODWARD.
• Court: Connecticut Supreme Court

70 A. 453

81 Conn. 152

Appeal of WOODWARD.

Supreme Court of Errors of Connecticut.

Aug. 3, 1908.

Appeal from Superior Court, New Haven County; Alberto T. Roraback, Judge.

Proceedings for the distribution of the estate of John O. Noxon, who died intestate. From orders of distribution made by the superior court, on appeal from orders of the court of probate making distribution, Mary L. Woodward, a sister of the intestate, appeals. Affirmed.

John O. Noxon, a resident of Meriden, in the probate district of Meriden, died at the city of New York November 28, 1905. Thereupon his widow, Martha C. Noxon, petitioned the court of probate for said district that letters of administration be granted to the Meriden Trust & Safe Deposit Company, representing, in her petition, that her husband, a resident of Meriden, died November 28, 1905, possessed of estate remaining to be administered, leaving her, his widow, and as his only heir at law and next of kin, his sister, Mary L. Woodward, a resident of Elizabeth, N. J., and leaving no will. Letters of administration were granted to said corporation. On May 6, 1907, the court of probate passed an order appointing distributors of said estate. The order recited that upon the settlement of the administration account there remained for distribution, in the hands of the administrator, $14,958.77 in personal estate; that Martha C. Noxon, widow, then (at the date of the order) deceased, and Elizabeth E. B. Potter, of San Bernardino, Cal., were heirs at law, or their representatives; and "therefore ordered that said estate be distributed to and among said heirs according to law," and appointed three distributors to distribute said estate. On May 10, 1907, said distributors reported that they had distributed said estate, amounting to $14,958.77, one-third to Martha C. Noxon, widow, late of Meriden, deceased, and two-thirds to Elizabeth E. B. Potter of San Bernardino, Cal. On the same day (May 10, 1907) the court passed an order accepting and approving said report. On June 26, 1907, the said Mary L. Woodward made application to the court of probate, alleging that she is heir at law and next of kin of said John O. Noxon, that she is a nonresident of the state, who was not present, and who did not have legal notice to be present, at the time when said orders were made, as of record will appear, that she was aggrieved thereby, and now, within 12 months next after said orders were passed, moves an appeal to the superior court from said orders. On the same day (June 26, 1907) the court of probate passed an order allowing said appeal, and directing a prescribed notice of said appeal to be given to said administrator and to each of the persons interested, namely, the said Elizabeth E. B. Potter, Mr. and Mrs. Veile, residents of New York, and W. R. Hervey, a resident of California. Upon the entry of said appeal the appellant, Mary L. Woodward, appeared, and the said administrator appeared as appellee.

The pleadings, in so far as they affect the questions decided upon the appeal, are substantially as follows: The reasons of appeal state that the appellant is a sister of John O. Noxon, the deceased, and that the deceased died intestate, leaving a widow but no children or the representatives of children. The attorneys for the appellees filed an answer to the reasons of appeal, admitting that the appellant is a sister of the intestate, admitting that the intestate died leaving a widow, and denying that the intestate left no children or representatives of children, and alleging, as a special defense, that on November 6, 1863, the said John O. Noxon and his wife, the said Martha C. Noxon, by proceedings duly had, and a decree of adoption duly made and entered in the county court in and for Milwaukee county, in the state of Wisconsin adopted a minor child, named Elizabeth E. Burton, and that the Elizabeth E. Burton so adopted is the Elizabeth E. B. Potter mentioned in the order of distribution, and that, by virtue of said decree of adoption and the law of Wisconsin, said Elizabeth E. B. Potter is, for the purposes of succession and inheritance, the child of John O. Noxon, and as such child entitled to inherit his property in this state under the laws of this state. The appellant filed a reply to the special defense, denying that Elizabeth E. B. Potter was, on November 6, 1803, adopted by said John O. and Martha C. Noxon by proceedings duly had in the Wisconsin court, and denying that by virtue of the decree of said court and the laws of Wisconsin she became, for the purposes of succession and inheritance, the child of the intestate, and further averring that said alleged adoption was and is wholly void, and that the Wisconsin court had no jurisdiction over the parties to said alleged adoption proceedings, and that under the laws of Wisconsin on November 6, 1863, said Wisconsin court had no jurisdiction over said alleged proceedings. The judgment of the trial court recites that, said Mary L. Woodward having filed her reasons of appeal, the parties were at issue to the court as on file, and the court, having heard the parties, finds the issues for the appellee, and thereupon adjudges that the orders of the court of probate appealed from are valid, and that the decree of said court be confirmed, and that the appellee, the said administrator, recover of the appellant its costs.

It appears from the finding for appeal to this court that the appellee, for the purpose of proving the alleged adoption, produced a copy of the record of the adoption proceedings in the Wisconsin court, duly exemplified, and produced no other evidence of the proceedings attending said adoption. This record consists of, first, the petition addressed to Hon. Albert Smith, county judge of the county of Milwaukee. The petition represents (1) that the petitioners are, and for four years last past have been, inhabitants of said Milwaukee; (2) that Elizabeth E. Burton, an infant two years of age, the child of Henry E. and Ellen J. Burton, his wife (the said Henry being a brother of the petitioner Martha C. Noxon), has resided with the petitioners for more than seven months last past, during which time the child has been wholly dependent on the petitioners for support and has received no support from its parents; (3) that the child was brought into Wisconsin by its parents some time before the month of March last, and both parents have now left the state, and have not resided in the state for more than six months last past; (4) that the petitioners are now wholly Ignorant of the whereabouts of said Henry or Ellen Burton, and when last heard from they were living separate, and neither pretending to make any provision for said child; (5) that the child has no legal guardian and no kindred within the state, except the petitioners; (6) that the petitioners are fit to bring up the child suitably, and deem it fit and proper that it should be adopted by them—they therefore petition for leave to adopt the child, and that an order may be made (upon proper consent being given) that such child be deemed, for all legal purposes, the child of the petitioners, and that some suitable person be appointed to act in the proceedings as the next friend of such child. This petition was verified by oath of the signers before a notary public. Second. The order appointing a next friend. The order recites that the parents of the said child reside without the state of Wisconsin, and that said child has no legal guardian and no kindred within the state except the petitioners, and thereupon orders that Oliver P. Wolcott of Milwaukee, be appointed to act as the next friend of Elizabeth E. Burton, and to give or withhold his consent to her adoption. The order is dated on the same day as the petition, and is signed, "Albert Smith, County Judge." Third. The order purporting to change the status. This order is as follows: "State of Wisconsin, Milwaukee County—ss. County Court, in Probate. In the Matter of the Adoption of Elizabeth E. Burton, etc. On reading and filing the petition of John O. Noxon and Martha C. Noxon, his wife, of the city and county of Milwaukee, state of Wisconsin, praying for leave to adopt Elizabeth E. Burton, the child of Henry E. Burton and Ellen J. Burton, his wife, and Oliver P. Wolcott having been appointed by this court to act as the next friend of the said child, the parents of the said child being nonresidents of the state of Wisconsin, and the said Wolcott having given his consent in writing to the said adoption, and this court having become satisfied of the identity and relationship of the said parties, and that the petitioners are of sufficient ability to bring up the child and furnish suitable nurture and education, having reference to the degree and condition of its parents, and that it is fit and proper that such adoption shall take effect: It is therefore ordered and decreed that, from and after the date of this order, such child shall be deemed and taken, to all legal Intents and purposes, to be the child of the said petitioners, as by the statute in such case made and provided. In testimony whereof I have hereunto set my hand, and affixed the seal of the county court of said county this 6th day of November, A. D. 1863.

"Albert Smith, County Judge. [Seal.]"

Section 697 of the General Statutes of 1902 provides that the public statutes of the several states, as printed by authority of the state enacting the same, shall be legal evidence, and the courts shall take judicial notice of them. The following statute laws relating to adoption appear in the public statutes of Wisconsin as printed by authority of that state. Revision 1858, c. 49, "Adoption," provides as follows:

"Section 1. Any Inhabitant of this state may petition the county judge, in the county he or she may reside, for leave to adopt a child not his or her own by birth.

"Sec. 2. If both or either of the parents of such child shall be living, they, or the survivor...