In re Agnes Edna Camp
| Decision Date | 03 November 1920 |
| Citation | 111 A. 565,94 Vt. 455 |
| Parties | IN RE AGNES EDNA CAMP |
| Court | Vermont Supreme Court |
October Term, 1920.
APPEAL from a decree of the probate court for the District of Windsor, Windsor County. Petition by Archie J. Camp, father of Agnes Edna Camp, a minor, to the probate court for the District of Windsor, praying that her alleged adoption by Arthur Lewis Dewmaw and Gertrude Florence Dewmaw be vacated. Upon hearing, the probate court decreed that the adoption be vacated. The Dewmaws appealed. The opinion states the case.
Decree affirmed. Let the result be certified to the probate court.
Blanchard & Tupper for the appellants.
Collins M. Graves for the appellee.
Present WATSON, C. J., POWERS, TAYLOR, MILES, and SLACK, JJ.
The law of this jurisdiction is such that when a resident desires to adopt a minor, he executes the instrument specified in G. L. 3761, and, when the same has been duly executed on behalf of the latter, files it in the office of the probate court of the district in which he, the adopter resides. G. L. 3756. If it appears to the court that the law has been complied with, the instrument is to be recorded in the probate office. But a parent who had no notice of the proceedings may, within one year after receiving such notice apply to such court to have the adoption vacated; and the court, after notice and hearing, may either vacate or affirm the same; and any interested party may appeal. G. L. 3760.
On May 29, 1919, the appellants duly executed an instrument adopting Agnes Edna Camp, a minor. They then resided in Bennington, and their residence was so stated in the instrument, while that of the minor was given as Springfield, Vermont. The instrument was executed on the part of the minor by Della Agnes Camp, her mother. It was acknowledged before the judge of the Windsor Probate District, and filed and recorded in the office of his court. On February 19, 1920, Archie J. Camp, the father of the minor, filed in that court his petition praying that the adoption be vacated, alleging therein that the adopters were, at the time of the adoption, residents of the Probate District of Bennington, and that he, the petitioner, had no notice of the proceedings. Upon notice and hearing, the court found that the adopters were not residents of the Windsor Probate District and vacated the adoption. The adopters appealed to this Court.
At the argument, and in the briefs, counsel have treated the case as one involving a question of the jurisdiction of the probate court. But in our view, the question presented is not one of jurisdiction at all. Adoption of minors was unknown to the common law, and in common-law states exists only by statute. In re Walworth's Estate, 85 Vt. 322 82 A. 7, 37 L. R. A. (N. S.) 849, Ann. Cas. 1914 C, 1223. The books show that some states require proceedings in court in order to make the adoption valid, but our State does not. To be sure, the statute makes the probate court the repository of the record of the instrument, but, until the petition to vacate is filed, its functions as a court are not called into action. It does not exercise any jurisdiction, which is the power to hear and decide. State v. Wakefield, 60 Vt. 618, 15 A. 181. When the instrument of adoption is filed, there is nothing to be heard and decided. The statute does not contemplate a juridical inquiry at that time. All the court is required to do is to scan the papers to see if the law has been complied with. Fraud, undue influence, and the welfare of the child, which all agree is of paramount importance, and which involves a broad inquiry into not only the character and situation of the adopters, but the advisability of the arrangement as affected by the varying circumstances of different cases--these are matters to which the court, under the statute, is not called upon to give attention. So far, the proceedings are contractual merely. They begin and end in the instrument executed as above. The adoption becomes effective, the status of the minor completely changed, without the approval or action of the court. A record of the...
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...so what is commonly said as to the necessity of jurisdictional facts appearing on the face of the record, has no application. In re Camp, 94 Vt. 455, 111 A. 565. question more particularly is: Were the papers executed in such substantial compliance with the form prescribed by statute as leg......