Hughes v. Aetna Cas. & Sur. Co.

• Decision Date: 12 June 1963
• Citation: 234 Or. 426,383 P.2d 55,76 Or.Adv.Sh. 847
• Parties: In the Matter of the Estate of Mona LaWanda Nelson, Deceased. Harold J. HUGHES, Appellant, v. The AETNA CASUALTY & SURETY COMPANY, Respondent, J. C. McDonna, Administrator of the Estate of Ellis F. Oatman, and Administrator of the Estate of Bernita O. Taylor, Respondent.
• Court: Oregon Supreme Court

Page 55

383 P.2d 55

234 Or. 426

In the Matter of the Estate of Mona LaWanda Nelson,

Deceased. Harold J. HUGHES, Appellant, v. The AETNA CASUALTY & SURETY COMPANY, Respondent,

J. C. McDonna, Administrator of the Estate of Ellis F.

Oatman, and Administrator of the Estate of Bernita

O. Taylor, Respondent.

Supreme Court of Oregon, Department 1.

Argued and Submitted Jan. 9, 1963.

Decided June 12, 1963.

James P. Cronan, Jr., Portland, argued the cause and filed briefs for appellant.

Thomas H. Tongue, III, Portland, argued the cause for respondent Aetna Casualty & Surety Company. With him on the brief was Stephen E. Parker, Portland.

Before McALLISTER, C. J., and ROSSMAN, SLOAN, GOODWIN and LUSK, JJ.

LUSK, Justice.

Harold J. Hughes, petitioner in the court below, is seeking by this proceeding to be declared the son and lawful heir of Mona LaWanda Nelson, deceased.

The petitioner is the illegitimate son of the deceased. He was born July 16, 1924; was apparently abandoned in infancy by his parents and became an inmate of St. Agnes Baby Home in Portland. On May 10, 1927, by decree of the Court of Domestic Relations for Multnomah County, he was declared to be the child of Mr. and Mrs. J. J. Hughes. He was reared in the home of his adoptive parents and never knew his natural mother. The question is whether the decree of adoption is void because of asserted procedural defects. If that be so, the relationship of mother and son between the petitioner and his natural mother has never been severed and he is her sole heir at law and entitled to take her estate.

The question arose in this way. Mrs. Nelson, nee Oatman, died intestate on February 6, 1957. She was survived by a brother, Ellis F. Oatman, and a sister Bernita O. Taylor. Her estate was probated in the District Court for Washington County and on September 4, 1957, an order of final settlement was entered, including an order of distribution of the estate to the brother and sister (since deceased) as her sole heirs. In March, 1961, the petitioner learned of his natural mother's death and that she had left an estate. After consulting an attorney, on June 26, 1961, he filed a motion to vacate the order of final settlement and allow objections thereto on the ground that the petitioner was the sole surviving heir at law and next of kin of the decedent. The petitioner invoked ORS 18.160 ¹ as authority for commencement of the proceeding thus belatedly. As the determination involved the title to real property, the district judge transferred the question to the circuit court. The Aetna Casualty & Surety Company (hereinafter referred to as Aetna), surety on the administrator's bond and respondent here, appeared in opposition to the objections and, after various proceedings unnecessary to be detailed, the court on April 9, 1962, entered an order denying the petitioner's motion to vacate the order of final settlement and overruling his objections thereto. From the order of April 9, 1962, the petitioner has appealed.

The adoption proceedings were commenced by the filing of a petition by Mr. and Mrs. Hughes which contained the following averments:

'That Harold Joseph Oatman, infant, born July 16th, 1924, is and was a foundling, abandoned by both father and mother, said abandonment having continued for more than one year last past; that said infant since said abandonment by both father and mother has been an inmate of and cared for by St. Agnes Foundling Asylum;

'That said petitioners desire to adopt the said infant in the manner provided by the laws of the State of Oregon;

'That the said petitioners are able to give said infant a suitable home, to care for, clothe and feed it, and to educate the said child;

'Said petitioners desire to give said infant all the advantages that a child of their own blood might have;

'That said petitioners further desire that the name of said infant be changed from Harold Joseph Oatman to Harold Joseph Hughes.'

As required by statute (Oregon Laws 1921, ch. 215), the petition was served on the Child Welfare Commission of Oregon, which filed a written report with the court recommending that the petition be granted. Included in the report is the following:

'The child was a ward of the St. Agnes Baby Home and was placed by that institution. He has been abandoned for more than one year preceding the filing of the petition. However since the St. Agnes Baby Home never acquired title, the year's abandonment next preceding the time of filing the petition is the basis upon which this proceeding is instituted:'.

On the tenth day of May, 1927, St. Agnes Baby Home filed with the court its 'Consent to Adoption', reading as follows:

'Harold Joseph Oatman, minor child, duly and regularly committed by the Court of Domestic Relations of Multnomah County, State of Oregon, to the St. Agnes Baby Home, petition having been filed by J. J. Hughes and M. E. Hughes for the adoption of Harold Joseph Oatman, said minor child having been abandoned by both mother and father; the Child Welfare Commission of Oregon having consented to the adoption and recommended the same;

'It appearing to the said St. Agnes Baby Home that the petitioners for adoption are members of the Catholic Church in Montavilla, and that they are in good standing in the community; now,

'THEREFORE, said St. Agnes Baby Home hereby consents to and recommends that said petition for adopted [sic] be granted.'

As previously stated, the court entered a decree of adoption on May 10, 1927. There are no findings other than recitals in the decree to the effect that the petitioners were of sufficient ability to bring up the minor child, Harold Joseph Oatman, properly, and that it was fit and proper that such adoption should take effect and that the Child Welfare Commission of Oregon had investigated the condition of the parties and recommended that the petition be granted. The record fails to disclose that notice of the proceeding was given to the minor child's natural mother.

The question for decision is governed by two fundamental principles. One is that the right of adoption 'being in derogation of the common law, is a special power conferred by statute, and the rule is that such statutes must be strictly construed.' Furgeson v. Jones, 17 Or. 204, 217, 20 P. 842, 11 Am.St.Rep. 808, 3 L.R.A. 620. See, also, Volz et ux. v. Abelsen, 190 Or. 319, 324, 224 P.2d 213, 225 P.2d 768, and cases there cited. The other principle is that the court in adoption proceedings is exercising a special statutory power not according to the course of the common law, and when its decree is called in question, even collaterally, no presumptions in favor of jurisdiction are indulged, but the facts necessary for jurisdiction must appear affirmatively, on the face of the record. In re Estate of Meyers, 197 Or. 520, 524-525, 254 P.2d 227, and cases there cited. It is otherwise with a court of grneral jurisdiction exercising its customary common law powers, for 'it is a rule of general application that every intendment consistent with the record of such courts will be indulged to sustain their proceedings and judgments.' Freeman on Judgments (5th ed.) § 383, quoted with approval in Capos v. Clatsop County, 144 Or. 510, 523, 25 P.2d 903, 90 A.L.R. 289.

In addition, it is to be observed that the court of domestic relations for Multnomah county was in 1927 a court of special and limited jurisdiction, dealing solely with the problems of dependent, delinquent and neglected children. Oregon Laws 1920, Special Session, Chapter 2. ² To such a court apply the same rules respecting the proof of jurisdiction when its judgment is attacked as in the case of a court of record exercising special statutory powers not according to the course of the common law. Capos v. Clatsop County, supra, 144 Or. at 522, 25 P.2d at 907.

The statutes governing adoption in effect in 1927 are to be found in Oregon Laws 1920. The parties seem to have assumed that the proceedings with which we are here concerned were taken pursuant to sections of the statute which provided for the adoption of children who were, either by commitment or otherwise, in the care of a child caring agency. These provisions will now be considered.

Oregon Laws 1920, section 9809, provided for permanent and temporary commitments by competent courts of dependent or delinquent children to appropriate state and county institutions or suitable private child caring agencies. Temporary commitments were to be made 'when the court for good and sufficient reasons decides that final adjudication of the case must be delayed, or that the child or children involved can reasonably be expected to soon return to ordinary home conditions in their own families'; and, in such case, guardianship of the persons of the children, it was provided, 'shall remain with the court.' Permanent commitments included 'guardianship of the persons of such children.'

The following sections of Oregon Laws 1920 relating to child caring agencies are pertinent: Such agencies to which dependent or delinquent children were committed by a court of competent jurisdiction through a permanent order could consent to the adoption of such children, § 9828. They could receive needy or dependent children from their parents or legal guardians for special, temporary or continued care. The parents or guardians might sign releases or surrenders giving to such agencies guardianship and control of such children, but such releases did not surrender the right of such parents or guardians in respect to the adoption of such children, nor entitle the agency to give consent to the adoption of such children, unless the release or surrender expressly recited that it was given for the purpose of adoption and that any entire severance of family ties by adoption, or otherwise, should be accomplished only by the order of a court of competent jurisdiction, § 9829.

Section 9830 provided:

'In the adoption of a ward of a private agency, society or...