In re Estate of Enyart
| Decision Date | 13 February 1928 |
| Docket Number | 26155 |
| Citation | 218 N.W. 89,116 Neb. 450 |
| Parties | IN RE ESTATE OF LOGAN ENYART. v. GEORGE S. KOSER, APPELLANT F. H. MARNELL, ADMINISTRATOR, ET AL., APPELLEES, |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Otoe county: JAMES T. BEGLEY JUDGE. Affirmed.
AFFIRMED.
Pitzer & Tyler and Lloyd E. Peterson, for appellant.
Paul Jessen, contra.
Heard before GOSS, C. J., ROSE, GOOD, THOMPSON, EBERLY and HOWELL JJ., and REDICK, District Judge.
This appeal arises out of the proceedings to probate the estate of Logan Enyart, deceased, who died intestate and left surviving him no widow or issue. From an order and judgment of the county court, finding that George S. Koser, the natural father of decedent, was not the heir and entitled to inherit, and determining that Katherine Enyart, the adoptive mother of decedent, was entitled to inherit, Koser, the natural father, appealed to the district court. A trial in that court resulted in findings and judgment, similar to those in the county court, from which Koser has appealed to this court.
From the record it appears that on the 29th of September, 1903, by proceedings in all respects regular and valid, Katherine Enyart, with the consent of her husband, adopted Logan E. Koser, then one year of age. George S. Koser and Hazel K. Koser, the parents of the minor child, consented to the adoption and relinquished all right to the custody of and control over the child to the adoptive mother. By the adoption proceedings the child was given the name of Logan Enyart. July 29, 1925, Logan Enyart departed this life intestate, unmarried and without issue. He left an estate consisting of lands in Custer county, Nebraska, and some personal property.
The principal question for determination is: Did the adoption proceedings and decree of adoption deprive the natural father of the right to inherit from his son?
The question presented is new in this jurisdiction. The courts of last resort of many of our sister states have passed upon the question, but the decisions are not harmonious. It is to be noted that the statutes concerning adoption proceedings vary greatly in the different states, and we have found no statute of any other state that is precisely like our own. The decisions of other courts, therefore, can afford no safe guide to a decision in the instant case.
Our statute relating to adoption of minor children provides that an adult person, under certain conditions, may adopt a minor child. If the parents of such child are living, their consent in writing must be obtained, and, if the adopting person is married and living with his or her spouse, the consent of such spouse to the adoption must be also obtained. The statute contemplates that the person desiring to adopt shall file in the county court a petition, and therein set forth the terms and conditions on which the adoption is desired to be made. Before a decree, the parents or persons having legal control of such minor child are required to file a written consent, wherein they voluntarily relinquish all right to the custody of and power and control over said minor child and all claim and interest in and to his or her services and wages. Thereafter, a time is appointed by the county court for a hearing, and a notice must be given of the time and place thereof; and, if upon such hearing the court shall find that the adoption is for the best interests of said minor child, a decree shall be entered in accordance with the terms and conditions of said petition and consent. It is further provided by section 1572, Comp. St. 1922: "Unless the terms and conditions in such consent and petition otherwise provide, the person or persons adopting, and the child adopted shall after adoption, sustain toward each other the usual relation (and the adopted child shall have bestowed upon him or her equal rights, privileges and immunities of children born in lawful wedlock) of parent and child, and shall have all the right and be subject to all the duties of that relation, and the parents of such adopted child shall, thereafter, stand relieved of all parental duties toward, and all responsibility for, said minor child and shall have no right over it." The brackets do not appear in the statute. The reason for the interpolation will appear later.
At common law, adoption of heirs or children was unknown. For some time after the enactment of adoption statutes the courts were inclined to their strict construction because they were said to be in derogation of the common law. Later, the humanitarian aspects and purposes of such statutes were recognized, and the courts generally evinced a disposition to give them a liberal rather than a strict construction. This court has adopted the rule of liberal construction. Ferguson v. Herr, 64 Neb. 659, 94 N.W. 542. It is evident that our statute contemplates two kinds of adoption; one is restricted by the terms and conditions contained in the petition for and consent to the adoption; and the other is an unrestricted adoption. If no terms and conditions are contained in the petition and consent, the adoption is without restriction and is subject to and governed by the terms of said section 1572.
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