Markover v. Krauss

• Decision Date: 05 October 1892
• Docket Number: 15,685
• Citation: 31 N.E. 1047,132 Ind. 294
• Parties: Markover v. Krauss
• Court: Indiana Supreme Court

31 N.E. 1047

132 Ind. 294

Markover v. Krauss

No. 15,685

Supreme Court of Indiana

October 5, 1892

From the Washington Circuit Court.

Judgment affirmed, with costs.

S. B Voyles and J. H. Masterson, for appellant.

H Morris, for appellee.

McBride C. J. Olds, J. Coffey, J.

OPINION

McBride, C. J.

From the complaint in this case we gather the following facts: One John G. M. Krauss, a resident of Washington county, died intestate, in the year 1889. At the time of his death he owned in fee simple certain land in that county, described in the complaint. He left surviving him a widow, Hannah Krauss, who had borne him no children. She, assuming to be the owner of the land in question, sold and conveyed it to the appellant, who is her son, and who, it is alleged, paid full value for it. The appellant entered into possession of the land, and is now, and has ever since been, in possession of it, claiming to be its owner by virtue of such purchase and conveyance. The decedent had been twice married before he intermarried with said Hannah, both of his other wives having died prior to his marriage to her. No child was ever born to him by any of his wives. In the year 1862, he resided in Huron county, Ohio, and was married. In October of that year, he, with his then wife, jointly applied to the probate court of that county to be permitted to adopt, as their joint heir, one Isaac Kuhn, and such steps were taken as resulted in his formal adoption as such heir by the name of Isaac Krauss. The heir thus adopted is the appellee herein. The wife, who joined in such adoption, died in 1863. She never had any interest whatever in the land in controversy, which was acquired after her death.

The appellant was the plaintiff below. His complaint is in two paragraphs. The first seeks to quiet his title to the land in controversy, and the second asks for the quieting of his title to the land, for the declaration and enforcement of a lien upon it, and for an accounting, with a general prayer for relief.

In the first paragraph the foregoing facts are all set out, and it is averred in addition that no transcript of the proceedings in the probate court of Huron county for the adoption of the appellee was ever brought into this State until after said John G. M. Krauss and his widow were both dead, and the appellant was in possession and claiming ownership of the land, but that the appellee has recently filed such transcript in the clerk's office of Washington county, and has thereby created a cloud upon the appellant's title, and is himself asserting title to the land. Whether the transcript of the record of the adoption proceedings has, or has not, been entered upon the order-book of the Washington Circuit Court in open session, as required by section 829, R. S. 1881, is not shown by the complaint.

The appellant's counsel, in argument, contend that, under section 829, above cited, a child adopted in another State acquires no rights enforceable in this State, unless all the parties to the adoption appear in the circuit court of some county in this State, during the minority of the child, file the record of the adoption and cause its entry upon the order-book in open session of such court, and that after the death of either the adoptive father or mother, or the majority of the adopted child, it was too late, and the adopted child could not thereafter acquire nor enforce any rights by virtue of such adoption; that if this is not true, the adopted child does not stand upon the same footing as a natural child, or a child born to the adoptive father, and that, as against such adopted child the widow, even if a second wife and childless, will take absolutely all of her deceased husband's property.

Section 829, R. S. 1881, provides that, when a child is legally adopted in any State of the United States other than this State, in accordance with the laws of that State, and a transcript of the record of such adoption is filed and entered upon the order book of any circuit court in this State, such adoption shall thereafter have the same force and effect, and such adopted child shall have the same rights as if the original adoption had occurred in this State and pursuant to its laws. Compliance with section 829 simply enables the adopted child to enforce such rights as arise out of the original adoption, and, until there has been such compliance, the courts of this State will not recognize or enforce those rights. The act of compliance with the requirements of that section is in no sense a re-adoption of the child, as argued by counsel, and there is no reason why either the adoptive parents or the adopted child should at the same time appear in person in the court where such record is filed, or is ordered spread upon the order book. Such appearance is, in our opinion, not necessary. Nor is it necessary that such record be filed during the lifetime of the adoptive parents or during the minority of the adopted child. Counsel argue that because in the statute providing for the adoption of heirs the word "child" is used, the proceeding can only apply to infants; that an adult is no longer a child, and hence cannot be adopted, and, the same word being used in providing for the filing in the courts of this State of the evidence of a foreign adoption, such evidence must of necessity be filed while the adopted heir is still a "child," i. e., still an infant. It is true that the word "child" is used throughout the entire statute, including section 829. It is also true that the word child, as commonly used, carries with it the idea of tender years and of minority. It is, however, also true that one's child does not cease to be his child when it attains its majority. The statute, unlike the statutes of many of the States, contains no provision fixing or limiting the age at which heirs may be adopted. We can see no reason why its provisions may not apply to adults equally with infants. We think they may, and do, and that the record of the foreign adoption filed after the adopted child has attained his majority is equally effective as if filed before that time.

The complaint showing, as it does, the actual adoption of the appellee, and his rights as such adopted child arising, as we have said, out of the act of adoption, and not out of the filing and entry of the record of adoption on the order book of the Washington Circuit Court, it is not material that it does not appear from the averments of the complaint whether the record has been heretofore entered upon the order book in open session or not. If not yet made, it is his right, under the statute, to have it made at any time. If, as such adopted child, he has any interest in the land which might be enforced after the filing of such record and its entry upon the order book, the appellant can not quiet his title as against such interest.

If the appellee, instead of being the adopted child of John G. M. and Barbara Krauss, the first wife, had been their natural child, born to said John G. M. by said Barbara, it is conceded that neither the widow Hannah nor her grantee could hold the land as against him. As a childless second wife she would, under the proviso to section 1 of the act of March 11th, 1889, section 423, Elliott's Supplement, have taken in the land only a life-estate, and the fee would, at the death of the husband, have vested in the appellee. That proviso reads as follows:

"Provided, That if a man marry a second or subsequent wife and has by her no children, but has children alive by a former wife, the interest of such second or subsequent childish wife in the lands of the decedent shall only be a life-estate, and the fee of the same shall, at the death of such husband vest in such children, subject only to the life-estate of such widow." The appellant insists that this proviso has no application whatever to an adopted child, but applies only to such children as have been born to the party by a former wife. This they insist is the only reasonable interpretation that can be given to the expression, "children by a former wife."

The question thus presented is an interesting one, and not free from difficulty. Its solution requires an inquiry into the status of adopted children, and the relative rights of such children and of natural children. In such an inquiry we can get no light from the common law, as that law made no provision for the adoption of heirs.

The law of adoption comes to us from the Roman law, and its appearance in our system of jurisprudence is in the nature of an engrafting of certain principles of that law rather than a statutory creation.

Our statute for the adoption of heirs provides that, "From and after the adoption of such child it shall take the name in which it is adopted and be entitled to and receive all the rights and interests in the estate of such adopting father or mother, by descent or otherwise, that such child would if the natural heir of such adopting father or mother." Section 29, Elliott's Supp., Acts 1883, p. 61.

It further provides that, "After the adoption of such child, such adoptive father or mother shall occupy the same position toward such child that he or she would if the natural father or mother, and be liable for the maintenance, education, and every other way responsible as a natural father or mother." Section 826, R. S. 1881.

Our task requires us to construe the foregoing statutory provisions relating to the adoption of heirs, and the rights thereby secured to the adopted child in connection with the statute fixing the rights of a second or subsequent childless wife in her husband's property. We approach this task in the light of the rule of construction, which requires us to view the whole body of our laws, statutory and otherwise, as...