Hilpire v. Claude

• Decision Date: 07 October 1899
• Citation: 109 Iowa 159,80 N.W. 332
• Court: Iowa Supreme Court
• Parties: HILPIRE v. CLAUDE ET AL.

109 Iowa 159

80 N.W. 332

HILPIRE

v.CLAUDE ET AL.

Supreme Court of Iowa.

Oct. 7, 1899.

Appeal from district court, Wright county; S. M. Weaver, Judge.

Action in equity for the partition of certain real estate. Decree was rendered dismissing the plaintiff's petition, from which she appeals. Reversed.Ladd & Rodgers, for appellant.

C. M. Nagle, for appellees.

GIVEN, J.

1. On the 4th day of October, 1884, Henry G. Bernard and his wife, the defendant Catherine Claude, duly executed a joint will, in which they devised to each other all property which either might own at the time of his or her decease. On the 23d day of February, 1893, Henry G. Bernard died intestate, seised in fee simple of the land in question, and leaving his wife surviving him, who since intermarried with her co-defendant, Julian Claude. Said will was duly admitted to probate. Henry G. and Catherine Bernard had no children born to them. In the year 1880 the plaintiff, then aged 7 years, and known as Emma Sophia Hazelman, went to live with Mr. and Mrs. Bernard, and continued to live with them until Mr. Bernard's death, and thereafter with Mrs. Bernard until she (Emma Sophia) was 21 years of age, about which time she married. On March 6, 1889, articles of adoption as follows were executed, which were filed for record March 24, 1889. “Articles of Adoption. This article of agreement, made and entered into by and between the undersigned, the contracting parties hereto, witnesseth: (1) That August Hazelman, the only living parent lawfully having the care and providing for the wants of the child hereinafter named, and all of the county of Lasalle and state of Illinois, desire to give and consent thereto, and by these presents do give and consent to give unto Henry G. Bernard and Catherine Bernard, of Woolstock township, in the county of Wright and state of Iowa, my child, now being called and known by the name of Emma Sophia Hazelman, and of sixteen years of age, for the purpose of adoption as their own child. (2) That the parties hereto desire, consent, and agree that hereafter said child shall be called and known by the name of Emma Sophia Bernard. (3) That, in consideration of the gift of said child for the purposes hereinbefore named, we, the said Henry G. Bernard and Catherine Bernard, do by these presents adopt and confer upon said child all the rights, privileges, and responsibilities which would pertain to the child if born to us in lawful wedlock. Signed this 6th day of March, A. D. 1889. Henry G. Bernard, Catherine Bernard. August Hazelman.”

2. This instrument was executed under the provisions of chapter 7, tit. 15, of the Code of 1873, section 2309 of which requires that, “such instruments in writing shall be also signed by the person adopting, and shall be acknowledged in the same manner as deeds affecting real estate are required to be acknowledged.” This instrument was acknowledged on March 6, 1889, by Mr. and Mrs. Bernard, before “Ed Hartsock, Deputy Clerk District Court” of Wright county. Appellees insist that under the statutes then in force said deputy clerk had no authority to take said acknowledgment, and that the instrument is therefore of no effect. Section 1955 of said Code, as it then stood, provided that instruments in writing by which real estate shall be conveyed or incumbered, “if acknowledged within this state, must be so before some court having a seal, or some judge or clerk thereof, or some justice of the peace or notary public.” This section was amended by chapter 99, Acts 22d Gen. Assem., adding the words “or before the county auditor or his deputy,” which amendment was approved April 9, 1888. Section 277 of said Code, as it then stood, provided that: “The following officers are authorized to administer oaths, and take and certify the acknowledgment of instruments in writing: Each judge of the supreme court; each judge of the district court; each judge of the circuit court; the clerk of the supreme court; each clerk of the district court as such, or as clerk of the circuit court; each deputy clerk of the district and circuit courts; each county auditor; each deputy county auditor,” etc. This section was amended by chapter 126, Acts 21st Gen. Assem., by inserting “the deputy clerk of the supreme court.” It will be observed that deputy clerks of courts are not included in section 1955; that county auditors and their deputies were not included therein until the amendment of April 9, 1888; and that both deputy clerks of the district and circuit courts and auditors and their deputies are included in section 277. In Long v. Schee, 86 Iowa, 619, 53 N. W. 331, it was contended that section 1955 absolutely requires that acknowledgment of deeds of real estate be made before some court having a seal, or one of the officers named therein. This court said, “It appears to us that this construction ignores the provisions of section 277.” It was held that the acknowledgment of a treasurer's deed before the county auditor on the 6th day of April, 1876, was a valid acknowledgment, under section 277. As section 277 authorizes the officers therein named to take acknowledgment of deeds affecting real estate, and deputy clerks are therein specified, we hold the acknowledgment of the instrument in question to be valid.

3. Said section 2309 also provides that such instruments as that in question “shall be recorded in the recorder's office in the county where the person adopting resides, and shall be indexed with the name of the parents by adoption as grantor, and the child as grantee, in its original name, if stated in the instrument.” This instrument was duly filed for record March 23, 1889, and was indexed under the letter B, as follows: “Bernard, Emma Sophia, adopted, 69,”--and under the letter H, as follows: “Hazelman, Emma Sophia, adoption of, 69.” While this indexing is not strictly as required by the statute, in that it does not present the parties in the relation of grantor and grantee, it is such a compliance with the statute that prejudice to any person was impossible because of the slight variation. Section 2310 of the Code of 1873 provides that “upon the execution, acknowledgment, and filing for record of such instrument, the rights, duties, and relations” between the parent and child attach. Indexing is not essential to the validity of the instrument, and the omission of the recorder to index exactly as provided will not render it invalid. The cases cited are not in point. In Shearer v. Weaver, 56 Iowa, at page 585, 9 N. W. 910, it is said, “Our statute having provided specifically the means whereby one sustaining no blood relation to an intestate may inherit his property, the rights of inheritance must be acquired in that manner, and can be acquired in no other way.” In that case the articles of adoption were not recorded during the lifetime of the person adopting, and were therefore held not to be valid. In Long v. Hewitt, 44 Iowa, 363, the instrument was not executed by the person intending to adopt. In Tyler v. Reynolds, 53 Iowa, 146, 4 N. W. 902, the instrument was not filed for record until after the death of the party making the adoption. In Gill v. Sullivan, 55 Iowa, 341, 7 N. W. 586, the instrument was almost entirely destroyed by accident, so that recording was impossible. In McCollister v. Yard, 90 Iowa, 622, 57 N. W. 447, the articles were not filed for record until after the child came of age, though in the lifetime of the adopting parent. It was held that as the articles only took effect upon filing of record, and as the child was not then a minor, the articles were not valid.

4. This brings us to consider whether this legal adoption of the plaintiff has the effect of revoking the previously executed will of Mr. Bernard, the adopting father. The relations and rights of these persons being exclusively statutory, we must determine this question in the light of the statutes, as found in the Code of 1873, under which the transactions occurred:

“Sec. 2307. Any person competent to make a will is authorized in manner hereafter set forth, to adopt as his own the minor child of another, conferring thereby upon such child all the rights, privileges and responsibilities which would pertain to the child if born to the person adopting in lawful wedlock.”

“Sec. 2310. Upon the execution, acknowledgment, and filing for record of such instrument, the rights, duties, and relations between the parent and child by adoption, shall, thereafter, in all respects, including the right of inheritance, be the same that exist by law between parent and child by lawful birth.

Sec. 2311. * * * But no action of the court in the premises shall affect or diminish the acquired right of inheritance on the part of the child, to the extent of such...