Greene v. Fitzpatrick

• Decision Date: 17 June 1927
• Parties: Greene, et al. v. Fitzpatrick, et al.
• Court: United States State Supreme Court — District of Kentucky

220 Ky. 590

Greene, et al. v. Fitzpatrick, et al.

Court of Appeals of Kentucky. Chancery Branch, Second Division.

Decided June 17, 1927.

1. Adoption. — Under Civil Code of Practice, section 518, subsec. 4, judgment in adopting proceedings may be set aside not only by immediate parties thereto, but by their privies in estate.

2. Adoption. — Heirs of one adopting another after his death become vested with same rights to set aside judgment of adoption, under Civil Code of Practice, section 518, subsec. 4, that was possessed by such person in his lifetime.

3. Judgment. — Fraud practiced on court, in order to be available under Civil Code of Practice, section 518, subsec. 4, to set aside judgment of adoption, should relate to jurisdictional matters and not be such as is available as defense.

4. Adoption. — Where Ky. Stats., section 2071, was literally complied with in adoption proceedings, failure of both petitioner and proposed adoptee to reveal fact of their unlawful relationship inducing adoption is not such fraud practiced on court as would warrant setting aside judgment under Civil Code of Practice, section 518, subsec. 4, at suit of heirs of petitioner.

5. Adoption. — In adoption proceeding under Ky. Stats., section 2071, authorizing adoption of an adult, notice of proceeding need not be given to adoptee's husband.

6. Adoption. — In adoption proceeding under Ky. Stats., section 2071, authorizing adoption of adult, fact that adopted heir is married creates no obstacle to adoption.

7. Adoption. — Since judgment of adoption under Ky. Stats., section 2071, could not be set aside by adopter under Civil Code of Practice, section 518, subsec. 4, for unlawful relationship existing with adoptee, since adopter would be in pari delicto with adoptee in perpetrating unlawful acts, heirs of adopter having no greater rights than ancestor cannot set aside adoption on such ground.

8. Adoption. — An adoption solely for purpose of inheriting is not followed by any change in social or domestic relationship of either party thereto, but is intended and effects only bestowal on adoptee of right of natural heir to inherit undisposed of property from adopted ancestor, and no element of estoppel can arise.

9. Adoption. — Heirs and next of kin of deceased may, under Civil Code of Practice, section 518, subsec. 4, set aside adoption proceeding of adult person under Ky. Stats., section 2071, made solely for purpose of inheriting, on ground that adopted heir procured adoption by fraud and undue influence exercised on deceased.

Appeal from Jefferson Circuit Court

MATT J. HOLT, JAMES A. MITCHELL and W.T. GODFROY for appellants.

LAWRENCE S. GRAUMAN for appellees.

OPINION OF THE COURT BY JUDGE THOMAS.

Affirming in part and reversing in part.

William H. Wright was a colored lawyer residing and practicing his profession in the city of Louisville, and at the time of his death on June 29, 1926, he was about 43 years of age and a bachelor. For the last few years of his life he had practically abandond his profession and devoted his time to looking after his private business, which had grown to considerable proportions and largely consisted in the management of a bank, operated for the benefit of colored people principally, and in which Wright was a large stockholder and also its president. He left an estate of the possible value of $100,000. For a number of years prior to his death the appellee and one of the defendants below, Lucille Willese Fitzpatrick, was his stenographer, in which capacity she served while Wright was actively engaged in his profession, and she continued to do so after that up to the time of his death. On July 24, 1925, practically 11 months before his death. Wright filed his petition in the Jefferson circuit court in which he alleged his desire to adopt as his heir his stenographer, the defendant Lucille Willese Fitzpatrick, and who at that time was an adult and married, but who was later divorced from her husband. At the same time the proposed adoptee filed a paper in the same court in the nature of an answer and in which she consented to the adoption, and on the next day the court rendered judgment declaring her "to be the heir at law of said William H. Wright, and as such is capable of inheriting as though she were the natural child of said petitioner."

The appellees and plaintiffs below were nieces and nephews of the deceased, Wright, and were his next of kin and surviving heirs. On July 22, 1926, they, as such surviving heirs, filed their petition in the same court seeking to set aside the order or judgment of adoption "for fraud practiced by the successful party in obtaining the judgment," which is subsection 4 of section 518 of the Civil Code of Practice. The petition as amended alleged, as facts constituting the ground for the relief sought, that the persons directly interested in the adoption proceedings (the adopter and the adoptee) had for years prior thereto lived in a state of concubinage and because thereof the adoptee and her husband had become divorced; that the adoption proceedings were in consideration of such relationship and its continuance in the future, and that it was, therefore, based upon an illegal, immoral, and vicious consideration, and was void. It was also alleged that each of the parties to that proceeding concealed its purpose, inducement, and consideration from the court, and which it was claimed constituted a fraud upon the court and thereby rendered the adopting decree invalid and void.

Another paragraph averred that the decree was obtained by the adoptee by fraud and undue influence practiced and exerted by her upon Wright, her paramour, and but for which he would not have petitioned for or obtained such decree, and for that reason also it should be set aside and held for naught. Another paragraph sought the nullification of the decree upon the ground that defendant's husband was not notified of the contemplated application, nor did he know of the judgment rendered therein, and, because of the failure to so notify him, the judgment was invalid. Other parts of the petition and the amendments we consider immaterial to the disposition of the appeal and will not be mentioned. Defendant filed both a special and general demurrer to the petition as amended, the first of which the court overruled, but sustained the second one, and, plaintiffs declining to plead further, their petition was dismissed, from which judgment they prosecute this appeal.

We think the court was correct in overruling the special demurrer. In opposition thereto learned counsel for appellees argue that no one but parties to the original proceeding may maintain an action under the provisions of section 518, since, as claimed, the relief is personal to the immediate parties to the judgment complained of, and especially so where it, as in this case, had the effect to create a status and a relationship between the parties to that proceeding, and cases are cited in support of that contention involving the right of surviving heirs to question the legality of a marriage alleged to be procured by fraud, one of which is the case of Tompert's Ex'rs v. Tomppert, 13 Bush, 326, 26 Am. Rep. 197, wherein we said that:

"A marriage procured by fraud is voidable only at the election of the party defrauded. . . . The right to avoid a marriage is personal, and if not taken advantage of by a party in his lifetime, it cannot be exercised after his death by his executors or devisees."

The fraud in such a case, having the only effect of rendering the marriage contract and its consummation "voidable," may be ratified by acquiescence on the part of the defrauded spouse, and when so done his or her representatives, heirs, or devisees have no standing in court to insist upon the undoing of a ratified wrong to their ancestor when the latter by his or her acts and conduct consented to waive it.

A different question would have been presented had the marriage been void ab initio; but whatever may be the correct rule under the facts with reference to the marriage relation; it is sufficient to say that an entirely different case is presented by this record. In the first place, we are dealing with a fraudulently procured judgment, as...