Magevney v. Karsch
| Decision Date | 09 December 1933 |
| Citation | 65 S.W.2d 562,167 Tenn. 32 |
| Parties | MAGEVNEY et al. v. KARSCH et al. |
| Court | Tennessee Supreme Court |
Certiorari to Court of Appeals on Appeal from Chancery Court, Shelby County; M. C. Ketchum, of Memphis, Chancellor.
Suit by Hugh Magevney and others against Mrs. Blanche Hamilton Karsch and others. Decree denying complainants relief was modified by the Court of Appeals, and complainants bring certiorari.
Decree of Court of Appeals modified, and petition for certiorari granted.
Holmes Canale, Loch & Glankler, Bates, Shea & Frazer, Sivley, Evans & McCadden, Hamilton E. Little, Crabtree & Crabtree, Prather S. McDonald, and Ewing Werlein, all of Memphis, and K. T McConnico, of Nashville, for complainants.
Metcalf Metcalf & Apperson, Burch, Minor & McKay, and James J. Pleasants, Jr., all of Memphis, and Ed. T. Seay, of Nashville, for defendants.
This case presents a contest over the estate of the late Mrs. Kate E. Hamilton, who died intestate in Memphis in December, 1930. The defendant Mrs. Karsch claims the entire estate as a daughter of the deceased by adoption. The complainants are the next of kin of Mrs. Hamilton, in which right they claim, and the primary basis of their bill is that the adoption proceedings were invalid and conferred no rights on Mrs. Karsch. The complainants also claim the real estate as heirs of the late Eugene Magevney; their contention in this respect being founded on the proposition that, under the will of Eugene Magevney, his daughter Mrs. Hamilton did not acquire an absolute title to such real estate.
The chancellor denied all relief to complainants. The Court of Appeals held that Mrs. Hamilton had only a life interest in the realty and that it passed to complainants on her death; that Eugene Magevney was intestate as to the reversion of said real estate.
The property involved is said to be of the value of $3,500,000; the personalty being valued at $1,500,000, and the real estate being valued at $2,000,000. The question of the validity of the adoption is determinative of the complainants' claim to the personal property, since it is conceded that Mrs. Hamilton owned the personalty outright.
Eugene Magevney, the father of Mrs. Hamilton, died in Memphis many years ago, leaving a considerable estate which has increased greatly in value during the years elapsing. He left two daughters, the defendant, Mrs. Hamilton, and another daughter who became a nun in the Roman Catholic Church and was known as Sister, later Mother, Mary Agnes. Testator left the residue of his estate to his daughter Kate, after certain provisions for his widow, his other daughter, his sister, and some orphan children.
The daughter Kate was married twice, but had no children of her own by either marriage. Her first husband was named Dawson; her second, Hamilton. Just prior to her second marriage in January, 1882, Mrs. Hamilton (then Mrs. Dawson), in company with Sister Mary Agnes, made a trip to New York. It seems from the proof that on that trip Sister Mary Agnes told of a child whom the sisters at the convent where she was located had been caring for and to which child she had become very much attached. Shortly before, the parents of this child had taken her away from the convent and from the Sisters who had nurtured her, very much to the distress of the latter. On this trip to New York, Sister Mary Agnes disclosed her intention of procuring while there another child to take back to the convent. She wanted a child whose parents were dead and who could not later be reclaimed. Such a child was found in New York, an outfit purchased for her, and the child was taken back to the convent by Sister Mary Agnes, and became the defendant Mrs. Karsch.
Mrs. Hamilton, after her second marriage, continued to live in Memphis, and the child generally stayed during the school year with Sister Mary Agnes at a convent in Ohio and later at a convent in Texas when Sister Mary Agnes went there. The little girl spent her vacations and other periods with Mrs. Hamilton in Memphis. Mrs. Hamilton developed a great affection for the girl, and, at the death of Sister (then Mother) Mary Agnes in 1891, brought the girl to Memphis, where she lived with Mrs. Hamilton, was treated as Mrs. Hamilton's daughter, and went by the name of Blanche Hamilton. Blanche Hamilton married Dr. Joseph H. Karsch on January 14, 1903. While, after her marriage, she had a home of her own, the relations between her and Mrs. Hamilton continued to be close and loving until the death of the latter. The record contains many evidences of the mutual affection existing between these two.
In 1897 Mrs. Hamilton undertook to adopt this girl by proceedings in the probate court of Shelby county, and it is these proceedings that are attacked herein as being ineffective and void.
The adoption statutes of Tennessee at that time are contained in Shannon's Code as follows:
5410. The court, if satisfied with the reasons given, may sanction the adoption by decree, entered upon the minutes, embodying the petition, and directing the terms of adoption.
5411. The effect of such adoption, unless especially restrained by the decree, is to confer upon the person adopted, all the privileges of a legitimate child to the applicant, with capacity to inherit and succeed to the real and personal estate of such applicant, as heir and next of kin; but it gives to the person seeking the adoption no mutual rights of inheritance and succession, nor any interest whatever in the estate of the person adopted.
5412. In cases of legitimation and adoption, the name of the person sought to be legitimated or adopted may be changed by proper prayer for that purpose inserted in the petition."
The decree entered in the adoption proceedings, which decree contains the petition, as required by the statute, is in these words:
"In the Matter of the Adoption of Blanche Donnelly by Kate Hamilton.
This cause came on this day to be heard before the Hon. J. S. Galloway, sole presiding Judge of said Court upon the petition of Kate E. Hamilton for the adoption of Blanche Donnelly, which is as follows, to-wit:-- To the Hon. J. S. Galloway, Judge of the Probate Court of Shelby County, Tennessee:
Your petitioner, Kate E. Hamilton would respectfully represent unto your Honor that she is a citizen and resident of Shelby County, Tennessee; that she has no children of her own and greatly desires to adopt Blanche Donnelly as her own child to her born, giving her the same care, attention, love and protection, maintenance, education and support, bear her surname, remain in her exclusive possession and control and have the right of inheritance and distribution in her estate, as if she were born unto her, and from a sense of duty and affection she desires to adopt the said Blanche Donnelly as her own child in every respect.
Premises considered, petitioner prays that this petition be filed and considered by the Court; that petitioner have a decree herein declaring the said Blanche Donnelly to be her daughter by adoption, with all the rights and privileges of a child to her born; that she have the exclusive possession and control of said Blanche Donnelly, free from the let or hindrance of all others; and that she be held responsible for her maintenance, education and support; and that her name be changed from Blanche Donnelly to Blanche Hamilton and that your petitioner have all other and further relief according to the Statutes in such cases made and provided, and as the facts warrant, and petitioner will ever pray, etc.
July 1st, 1897.
The argument for the complainants is that adoption was unknown to the common law and that statutes providing for adoption must be strictly construed; that such statutes confer upon the courts a special power and that this power must be exercised in strict compliance with the statute; that the judgment or decree of the court in such a case must show a literal observance of the provisions of the statute, or that otherwise a judgment of adoption is void.
The reply, generally speaking, is that adoption statutes do not require a strict construction under the weight of authority, and that the decree of the probate court herein, being a decree of a court of general jurisdiction, is not subject to this collateral attack.
The probate court of Shelby county is a court of record, and has all the powers of the county court with reference to adoption and like matters. Shannon's Code, § 387. The county court is a court of general jurisdiction in proceedings for the adoption of children. Crocker v. Balch, 104 Tenn. 6, 55 S.W. 307; Redmond v. Wardrep, 149 Tenn. 35, 257 S.W. 394.
The complainants insist that, where the jurisdiction exercised by a...
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