In re Egley's Estate

• Decision Date: 27 February 1943
• Docket Number: 28719.
• Citation: 16 Wn.2d 681,134 P.2d 943
• Court: Washington Supreme Court
• Parties: In re EGLEY'S ESTATE. v. HALL et al. BREWSTER

134 P.2d 943

16 Wn.2d 681

In re EGLEY'S ESTATE.

BREWSTER v. HALL et al.

No. 28719.

Supreme Court of Washington, En Banc.

February 27, 1943

Proceeding in the matter of the estate of Maud Egley, deceased, by Elwanda Brewster against Martha Hall and others, involving the right of plaintiff, an adopted child, to inherit from her first adoptive parents after being adopted a second time by others. From a judgment for defendants, the plaintiff appeals.

Reversed with instructions to proceed in conformity with opinion.

BLAKE BEALS, JEFFERS and MALLERY, JJ., dissenting.

Appeal from Superior Court, King County; James T. Lawler, judge.

Rummens & Griffin, of Seattle, for appellant.

Simmons & McCann, of Seattle, for respondents.

SIMPSON Chief Justice.

This case involves the right of an adopted child to inherit from her first adoptive parents after being adopted a second time.

In 1923, when the appellant was nineteen months of age, she was adopted by J. W. Egley and Maud Egley, husband and wife. When she was four and a half years old, appellant was adopted by Wayne H. and Laverna Carstensen. Mr. Egley died intestate in 1936. Mrs. Egley died in 1941, leaving a will by the terms of which she left appellant the sum of one dollar. Appellant claimed that she was entitled to inherit from her adoptive father and mother, J. W. Egley and Maud Egley.

The trial court held that the first order of adoption was void for the reason that the permission to adopt was signed by the mother alone and did not set forth the fact that the parents were living separate and apart. The order of adoption reads:

' In the Matter of the Adoption of Elwanda Egley, a Minor. No. 32670 Order,

'The above entitled matter coming on regularly for hearing Before the Court on the petition of J. W. Egley and Maude L. Egley, his wife, asking that they be permitted to adopt as their legal child and heir one Elwanda Egley, a minor; it appearing to the satisfaction of the Court from an examination of the records and files herein that Elwanda Egley is a minor of the age of approximately nineteen months and that she is in need of someone to maintain and support her. That her mother has given consent to her adoption and is unable to properly care for her.

'It further appearing to the Court that J W. Egley and Maude L. Egley, his wife, are able and willing to care for, maintain and support said minor child, Now Therefore,

'It is hereby ordered that from this date the minor child hereinBefore named, to-wit: Elwanda Egley, be and she is hereby declared to be the adopted child of J. W. Egley and Maude L. Egley, his wife, entitled to all the rights and privileges and subject to all the obligations of a child of petitioners begotten in lawful wedlock.

'Done in open Court this 28th day of February, 1923.

'Otis W. Brinker

'Judge.'

We shall assume, without deciding, that the question of the validity of the judgment of adoption in the first case could be litigated in the present proceeding. The statute in force at the time of the adoption by Mr. and Mrs. Egley stated: ' Any inhabitant of this State, not married, or any husband and wife jointly, may petition the superior court of their proper county for leave to adopt and change the name if desired, of any child under the age of twenty-one years, but a written consent must be given to such adoption by the child, if of the age of fourteen years, and by each of his or her living parents who is not hopelessly insane or a confirmed drunkard. If there be no such parents, or if the parents be unknown, or shall have abandoned such child, or if such parents, or either of them, are hopelessly insane, or a confirmed drunkard, then by the legal guardian; if there be no such guardian, then by a discreet and suitable person appointed by said court to act in the proceedings as the next friend of such child: Provided, however, That if the parents are living separate and apart, the consent of both is not required, but such consent may be given by the parent having the care, custody and control of such child: And provided further, That either spouse may adopt a child of the other.' Ch. 155, Laws of 1905. (Italics ours.)

Did the order of adoption have to show the marital status of the natural parents of appellant at the time she was first adopted? We are of the opinion that the order was valid on its face. In Re Dingman, 110 Wash. 513, 188 P. 755, 756, an order of adoption, in so far as it related to the consent required by the statute, stated, 'consent having been made to such adoption by the surviving parent.' The order in that case was attacked upon the ground that it did not show that the surviving parent was an inhabitant of the state of Washington. The case is so decisive of the question under consideration that we feel justified in quoting from it at length: 'It is first contended in behalf of appellant upon this branch of the case that the order of adoption is void for want of setting forth the fact that the petitioners Gokey and wife, at the time of the entering of the adoption order, were inhabitants of this state. The argument is, in substance, that because of the special nature of the proceeding, it not being one in the course of the common law, the failure to set forth such fact in the order of adoption is such a failure to show a jurisdictional fact as to render the order void on its face, notwithstanding it was made and entered in the superior court, a court of record and general jurisdiction. It is elementary that a failure to recite jurisdictional facts, in a judgment rendered by a court of general jurisdiction, in an ordinary action at law, does not render the judgment void. This because of the jurisdictional presumptions attending the judgments of courts of that dignity. Counsel invoke, in behalf of appellant, the rule as announced by some of the courts, that when jurisdiction is vested by statute or other written law in a special proceeding not in the course of the common law, in a court of general jurisdiction, as to such proceeding the court becomes, in effect, one of special or limited jurisdiction; that jurisdictional facts must affirmatively appear of record in the proceeding, either in the recitals of the judgment or otherwise; and that without such recital of jurisdictional facts the judgment rendered in such proceeding, even by such a court, is void. It may be conceded that there is respectable authority sustaining such view of the law, but we think this court has committed itself to the opposite view.'

The opinion goes on and refers to Taylor v. Huntington, 34 Wash. 455, 75 P. 1104, and Freeman on Judgments, § 123, and then says:

'While the territorial probate court was a court of limited jurisdiction, and acquired its jurisdiction over the matter of the adoption of children solely by virtue of these provisions of the adoption statute found in the Probate Code, the jurisdiction of the superior court does not now rest alone upon these statutory provisions, for we read in section 6, article 4, of the Constitution, that----

"The Superior Court shall have original jurisdiction * * * of all matters of probate. * * *.'

'It seems to us apparent, in view of the fact that this adoption statute was, at the time of the adoption of our state Constitution, a part of the then 'probate practice act,' which was a single act of the territorial Legislature, that the makers of the Constitution used the words 'all matters of probate' as inclusive of the adoption of children. It may be that the matter of the adoption of children might not ordinarily be considered a matter of probate, but it was so recognized by the law of our territory when the Constitution was framed, and we think the conclusion cannot be escaped that the words 'matters of probate' were used in the Constitution as inclusive of that subject, as well as the probate of wills and administration of estates of decedents. The superior court being a court of general jurisdiction, created by the Constitution of the state conferring upon it this, among other subjects of jurisdiction, we think it was, in effect, a rendering of the words 'set forth the facts' as found in section 1698, in any event as nothing more than directory, even if these words could be regarded as of greater force under the territorial law when the subject of the adoption of children was one of jurisdiction of a court of limited jurisdiction. We are therefore of the opinion that at this time the failure to set forth jurisdictional facts in the order of adoption here in question does not render such order void. This is not a case of seeking to avoid the order because the adopting parents were not in fact residents of the state at the time of the entering of the order of adoption. Whether or not the order should be set aside upon an affirmative showing, in a proper proceeding, that they were not then residents of the state is quite another question.'

It is clear that the recital of one requirement of the statute in the order is as vital as any other, and if one requirement may be omitted, the other also may be omitted. The decision to which we have referred compels us to hold that the judgment or order of adoption by Mr. and Mrs. Egley was valid.

Another question for determination is whether the second adoption cuts off the right of an adopted child to inherit from its prior adoptive parents.

Our statute, Rem.Rev.Stat. § 1341, relating to descent, provides: 'The words 'issue,' 'child' and 'children' wherever used in this section shall be construed to include lawfully adopted children.'

Rem.Rev.Stat § 1699, relating to the adoption of children, contains the following provision: 'By such order the natural parents shall be divested of all legal rights and obligations in respect to such...