Dodson v. Ward.

• Decision Date: 27 October 1925
• Docket Number: No. 2879.,2879.
• Citation: 31 N.M. 54,240 P. 991
• Parties: DODSON et al.v.WARD.
• Court: New Mexico Supreme Court

31 N.M. 54

240 P. 991

DODSON et al.

v.WARD.

No. 2879.

Supreme Court of New Mexico.

Oct. 27, 1925.

Syllabus by the Court.

Where, after an adopting parent has died, the adopted child dies without heirs of his body, his relations by blood are entitled to take under the statutory laws of descent and distribution in preference to the father of the adopting parent, in the absence of specific legislative declaration to the contrary in the adoption statute.

Where the case was tried upon an agreed statement of facts, and the findings of fact merely set forth the facts as recited in the agreed statement, such findings not being assailed, and the issues are narrowed to one only, as stated in the ultimate conclusion that “from the foregoing it follows that the plaintiff is entitled to recover as against the defendants as prayed in his complaint,” and all the findings and conclusions are incorporated into and made a part of the judgment itself, which contains a general exception, “to all of the foregoing the said defendants object and except,” the appellants will not be denied a review merely because separate exceptions were not taken to the conclusions of law.

Appeal from District Court, Torrance County; Mechem, Judge.

Action by James Ward against Bolen R. Dodson and another. Judgment for plaintiff, and defendants appeal. Reversed, with directions.

Where, after an adopting parent has died, the adopted child dies without heirs of his body, his relations by blood are entitled to take under the statutory laws of descent and distribution in preference to the father of the adopting parent, in the absence of specific legislative declaration to the contrary in the adoption statute.

Fred H. Ayers, of Estancia, for appellants.

E. P. Davies, of Santa Fé, for appellee.

BICKLEY, J.

[1] Upon the stipulated facts, the trial court made the following findings of fact and conclusions of law predicated thereon:

“(1) That the real estate described in plaintiff's complaint was entered and filed upon by one Lillian M. Ward, by virtue of and in accordance with the homestead laws of the United States. That at the time said Lillian M. Ward died, as hereinafter set forth, such entry had not been completed by her, but was still in an uncompleted state.

(2) That the said Lillian M. Ward died intestate, within Torrance county, N. M., on or about June 8, A. D. 1910. That the plaintiff, James Ward, is the natural father of the said Lillian M. Ward, deceased. That the wife of the said James Ward, being the mother of the said Lillian M. Ward, died intestate prior to the death of the said Lillian M. Ward. That the said Lillian M. Ward was never married, but was at all times during her life a single woman.

(3) That the said Lillian M. Ward did, on May 4, A. D. 1909, in the probate court of Torrance county, N. M., duly adopt Herbert Rosell Ricks, a minor, who was thereafter called Herbert Rosell Ward. That the said Lillian M. Ward also duly adopted said minor in the state of Colorado, in conformity with the laws of that state. That the said Herbert Rosell Ward died intestate about the year 1912. That at that time he was still an infant and that he did not then have, and never has had, any brothers or sisters. That Hulda Ricks, sometimes referred to as Mrs. A. M. Ford, being the wife of Mr. Aaron Ford, is the natural mother of the said Herbert Rosell Ricks, who was adopted by Lillian M. Ward, and thereafter known as Herbert Rosell Ward. That during the lifetime of her said son she was divorced from her said husband, the father of said minor, and had been given the absolute care, custody, and control of the said minor son by the court granting said divorce, and that the said Hulda Ricks consented to the adoption by the said Lillian M. Ward.

(4) That Ralph G. Roberson was, by the probate court of Torrance county, appointed administrator of the estate of Herbert Rosell Ward. That such administrator published notice of his appointment, requiring those having accounts against said estate to present them as required by law. That no claims were filed. That the probate court of Torrance county entered an order signed by the judge thereof, reciting that said minor died intestate, and left as his heir the said Mrs. A. M. Ford, and decreed her to be entitled to his property, being the same land described in the plaintiff's complaint herein. That said order was made a public record of Torrance county before the defendants acquired the land involved herein, and a transcript of such record was introduced in their abstract of title.

(5) That on December 20, 1916, the said Hulda Ricks, otherwise known as Mrs. A. M. Ford, together with her then husband, executed and delivered to the defendant Bolen R. Dodson a warranty deed for the land in question. That the said Dodson paid a good and sufficient consideration therefor. That the said Bolen R. Dodson has ever since that time been in possession of said land and has paid all taxes due thereon. That said deed was filed for record on the 6th day of January, 1917, in the office of the county clerk of Torrance county, and was duly recorded in Book A-3 at page 220 of the Deed Records of said county, and that the said Bolen R. Dodson has not conveyed the same by deed or otherwise, except to deliver a mortgage thereon to E. P. Davies.

(6) That the patent to the above-described land was issued by the United States government subsequent to the death of said Lillian M. Ward. That it was issued to and in favor of her heirs, she being then dead.

Conclusions of Law.

(1) That, when the said Lillian M. Ward duly adopted Herbert Rosell Ward, the relationship of parent and child between them was created, and they would inherit from each other the same as if they had borne the relationship of natural parent and natural child to each other.

(2) That, when Hulda Ricks, otherwise known as Mrs. A. M. Ford, the natural mother of Herbert Rosell Ricks, consented to the adoption of him by Lillian M. Ward, she forfeited, abandoned, and was deprived of any further right to inherit from said child by reason of being his natural mother. She did not regain that right by the death of the child's adoptive mother.

(3) That upon the death of the said Herbert Rosell Ward the land in question descended from him to his grandfather, who is the plaintiff herein.”

A decree was entered embodying in accordance with said findings and conclusions, decreeing that the plaintiff, the father of the adoptive mother, is the owner of the lands in question, to which decree a general exception was saved.

The question to be determined is, Does the natural mother of a person who has been adopted under the adoption laws of this state inherit from such adopted person; the mother being the nearest of kin?

The relationship and rights incident to adoption are created and provided for solely by our statutes in effect at the time of the occurrence of the events mentioned in the findings of fact, and the sections involved on this appeal are as follows:

“Neither a married man, not lawfully separated from his wife, nor a married woman not lawfully separated from her husband, can adopt a child without the consent of the wife or the husband; providing the husband or wife not consenting, is capable of giving such consent.” Section 15, Code of 1915.

“A legitimate child cannot be adopted without the consent of its parents, if living together; and if legally separated, the consent of the parent having legal custody of the child must be obtained. It shall not be necessary to obtain the consent from a father or mother deprived of civil rights or adjudged guilty of adultery or cruelty, and for such cause divorced and deprived of the custody of the child, or adjudged to be an habitual drunkard, or who has been judicially deprived of the custody of the child on account of cruelty to, abandonment and neglect of, the child or of infamous conduct.” Section 16, Code of 1915.

“The probate judge must examine all persons appearing before him pursuant to the provisions of this chapter, and if satisfied that the interest of the child or children to be adopted will be promoted by the adoption by applicant, he must make an order declaring the child to be adopted by the applicant and thenceforth to be regarded and treated in all respects as the child of the person adopting; or if the applicant be such an association or corporation as mentioned in this chapter, the probate judge must make an order declaring such child or children to be adopted by such association or corporation, and thenceforth such association or corporation to be considered as having the custody and control of such child or children, in place of its natural guardians.” Section 22, Code of 1915.

“A child, when adopted, shall take the family name of the person adopting. In case of the adoption by an association or corporation, the child adopted shall take such name as the association or corporation shall designate at the hearing at the time of its adoption, which name shall be entered of record in the proceedings of the probate court.” Section 24, Code of 1915.

“The parents and relatives of an adopted child are, from the time of its adoption, relieved of all parental duties toward and all responsibility for the child so adopted, and shall have no right to or control over it.” Section 25, Code of 1915.

“And those persons adopted or legitimized as children or heirs by virtue of this act, shall be considered under the law as legitimate children in regard to their duties and obligations toward the persons that have adopted or legitimized them, and in respect to them, it being understood that they shall always be subject to be disinherited for the same legal reasons as are now legal heirs.” Section 1492, C. L. 1897.

While these sections fix the status of adopting and adopted parties, and declare the rights and obligations of law to the other, no mention is made of the interest that either may have in the estate of...