Glos v. Same1

• Decision Date: 26 October 1893
• Citation: 36 N.E. 628,148 Ill. 536
• Parties: GLOS v. SANKEY et al. VAN MATRE v. SAME.
• Court: Illinois Supreme Court

148 Ill. 536

36 N.E. 628

GLOS

v.SANKEY et al.

VAN MATRE

v.SAME.¹

Supreme Court of Illinois.

Oct. 26, 1893.

Appeal from circuit court, Cook county; M. F. Tuley, Judge.

Bill for partition and to set aside certain tax deeds brought by Mary F. Van Matre against Caroline C. Sankey, Henry L. Glos, and others. There was a decree dismissing the bill, and quieting the title of defendant Sankey upon cross bill. Complainant and defendant Glos appeal. Affirmed.F. W. S. Brawley, (H. S. Mecartney, of counsel,) for appellants.

Hamline, Scott & Lord, for appellee Caroline C. Sankey.

The other facts fully appear in the following statement by SHOPE, J.:

Mary F. Van Matre filed her bill in chancery, in the Cook county circuit court, alleging that she and others named in the bill, including Caroline C. Sankey, were the heirs at law of Samuel Sankey, who died intestate in November, 1886, without issue or widow surviving him, and seised of certain lots and lands in said county, of which partition was sought among said alleged collateral heirs of said decedent. The bill also set up that appellant Henry L. Glos and others claimed some interest in certain of the lands under tax deeds, which were alleged to be void, and were asked to be removed, as clouds upon the title of complainant and her coheirs. Caroline C. Sankey answered the bill, denying that others were interested in said land land lots, and claiming title in fee to the whole, as heir at law of the said Sankey, and filed her cross bill, alleging that by virtue of certain adoption proceedings in the court of common pleas of Lycoming county, Pa., she was adopted by said Samuel Sankey, deceased, on the 2d day of January, 1879, and that said Sankey having died without issue, and leaving no widow him surviving, his estate descended to her, as heir at law. The cross bill also alleged that said Glos and others held certain tax deeds, which were a cloud upon her title, and alleging in the cross bill, as amended, certain defects therein, and praying that the same be removed, as a cloud, etc. Upon the issues joined upon the original and cross bills, the court found and decreed in accordance with the prayer of the cross bill, dismissing the original bill; finding that the tax deeds alleged were void, and upon the terms of payment by complainant in the cross bill of the taxes for which the tracts were severally sold, interest and costs, etc., removing them, severally, as clouds, etc. From the decree dismissing the original bill, and quieting the title in the complainant in the cross bill, Mary F. Van Matre appeals. From so much of the decree as finds the several tax deeds void, and clouds, etc., Henry F. Glos appeals.

The statute of Pennsylvania under which the adoption proceedings were had was as follows: ‘It shall be lawful for any person desirous of adopting any child as his or her heir, or as one of his or her heirs, to present his or her petition to such court in the county where he or she may be resident, declaring such desire, and that he or she will perform all the duties as a parent to such child; and such court, if satisfied that the welfare of such child will be promoted by such adoption, may with the consent of the parents or surviving parent of such child, or if none, of the next friend of such child, or of the guardian or overseer of the poor, or of such charitable institution as shall have supported such child for at least one year, decree that such child shall assume the name of the adopting parent, and have all the rights of a child and heir, of such adopting parent, and be subject to the duties of such child, of which the record of the court shall be sufficient evidenced.’ Act May 4, 1855, § 1, (Purd. Dig. p. 78, pl. 1.)

It appears that Caroline C. Sankey was a minor of about the age of nine years; that her father and mother were both dead; that she and they, up to the time of their death, resided in Lycoming county, Pa. It is not questioned that the court of common pleas had jurisdiction, in that state, of the adoption of children, authorized by the statute quoted. On the 11th day of November, 1878, Samuel Sankey filed in said court his petition, duly verified by his oath, in the words following: ‘State of Pennsylvania, Lycoming County. In the Court of Common Pleas of Said County. To the Honorable the Judges of the Court of Common Pleas and of the Orphans' Court of the County aforesaid: The petitioner, Samuel Sankey, shows to this honorable court that he is a married man, without children now living, and a resident of the city and county of San Francisco, in the state of California, and he is now a temporary resident at Williamsport, in the county aforesaid, and as such resident he is desirous of adopting Caroline Sankey, often and commonly called ‘Carrie Sankey,’ as his heir at law. And your petitioner represents that he will perform the duties of a parent to said Carrie Sankey. And your petitioner further represents that said Carrie Sankey is an orphan, and is the daughter of Cyrus K. Sankey and Caroline, his wife, and that said Cyrus K. Sankey was the brother of your petitioner, and that he and his wife died intestate and wholly insolvent, and that your petitioner is next of kin to said Carrie Sankey, and as such he desires to adopt said orphan child, as stated above. Your petitioner further represents that all the brothers and sisters of said C. K. Sankey cheerfully consent that your petitioner shall adopt said child, who is now of the age of nine years, for the purpose of caring for her, educating her, and protecting her as his own child. Your petitioner shows to the court that the kinfolks on the part of the mother of said child are not so situated and circumstanced that they can care for said child. Respectfully submitted. [Sig.] Samuel Sankey.' It also appears that L. G. Huling had before then been appointed guardian of said infant, and on November 11, 1878, a rule was granted on such guardian to show cause why the prayer of the petition should not be granted, returnable the following day, and a commissioner was appointed to take testimony. The record in that case shows that on application of the grardian the time for taking testimony was twice extended by the court, and finally the following orde was entered in said cause: ‘January 2, 1879, the appointment of L. G. Huling as guardian of Caroline C. Sankey is revoked, and Samuel Sankey is allowed to adopt the minor child.’ Then follows an order appointing Samuel Sankey guardian of the person and estate of said infant, minor child of Cyrus K. Sankey, deceased; and then follows the final order and decree, viz.: ‘January 2, 1879. Order and Decree: Samuel Sankey, Esq., at present resident in said county of Lycoming, presented his petition to the said court, declaring his desire to adopt Caroline C. Sankey, a minor child of Cyrus K. Sankey, deceased, and promising to perform all the duties of a parent, and confer upon her all the rights of a child and heir; and it appearing to the court that both parents of said minor child are dead, and that the uncles and aunts, as next of kin, on the father's side, of said minor child, consent and approve of said adoption, and after careful investigation and inquiry, it appearing to the court that the interests and welfare of the said minor child will be promoted by being adopted as the child and heir of the said petitioner, therefore, it is ordered and decreed as follows: And now, to wit, January 2, A. D. 1879, at an adjourned court held at Williamsport, in said county, it is ordered and decreed that Caroline C. Sankey, a minor child of Cyrus K. Sankey, late of said county, deceased, be and she is hereby declared to be adopted by Samuel Sankey, Esq., with all the rights of a child and heir of the said Samuel Sankey, and that she be also subject to all the duties of such child, and shall assume the name of the adopting parent, and, to all intents and purposes, have, enjoy, and inherit all the rights and privileges, and be subject to all the duties, of a lawful child of said adopting parent, of which a copy of this record shall be sufficient evidence, agreeable to the provisions of the act of the general assembly of Pennsylvania approved May 4, A. D. 1855. By the Court. James Gamble, P. P.’ No appeal was taken from, or writ of error prosecuted to reverse, said decree. But after the death of Samuel Sankey, which occurred November 23, 1886, all the parties alleged to be collateral heirs of said Sankey, except said Caroline C. Sankey, by Aaron Wolf, their attorney in fact, and as administrator of the estate of Samuel Sankey, deceased, on November 3, 1887, filed a petition entitled in the adoption proceeding above mentioned, in the court of common pleas of Lycoming county, Pa., setting forth as follows: ‘(1) That Samuel Sankey, the petitioner in said proceedings, was a resident and citizen of the state of California at the time of the filing of said petition, and afterwards, to the day of his death, to wit, on the 23d day of November, A. D. 1886, and that the said Caroline C. Sankey is now about eighteen years of age, and now a resident of the city of San Francisco, in the state of California. (2) The petitioner's appointment as attorney in fact, etc.; the names and residences of the heirs; the petitioner's appointment as administrator, etc. (3) A copy of the decree of Hon. James Gamble, heretofore recited. (4) That the said order and decree was made on a petition signed by Samuel Sankey, and duly filed in said number and terms, wherein it is stated that the petitioner is a resident of the state of California, and, further, that the brothers and sisters of said Cyrus K. Sankey cheerfully consented to the adoption prayed for. (5) That your petitioner is informed and believes that he can establish by evidence, on the hearing of this case, that the brothers and sisters of Cyrus K. Sankey never consented to, and had no knowledge of, said application for adoption,...