McCollister v. Yard
| Decision Date | 22 January 1894 |
| Citation | 57 N.W. 447,90 Iowa 621 |
| Parties | MARY E. MCCOLLISTER, Appellant, and ESTELLA MCFADDEN, Intervener, Appellee, v. LIZZIE V. YARD et al., Appellants |
| Court | Iowa Supreme Court |
Appeal from Johnson District Court.--HON. S. H. FAIRALL, Judge.
ACTION for the recovery of certain real estate, together with the rents and profits thereof. Estella McFadden intervened. From a decree in favor of the intervener, and against the plaintiff, the plaintiff and defendants appeal.--Upon the plaintiff's appeal, affirmed; on the defendant's appeal, reversed.
On plaintiff's appeal, the case AFFIRMED; on defendant's appeal REVERSED.
Baker & Ball for appellants.
Ranck & Wade for appellees.
This is an action in equity, brought by Mary E. McCollister, wherein she claims to be the owner of a large amount of real property, also certain rents and profits arising therefrom, all of which the defendant Welch, as administrator, holds in his possession. During the pendency of the plaintiff's action, Estella McFadden (by her guardian) intervened therein, claiming said property. The cases were tried as one, and were heard before Hon. James D Giffen, judge of the eighteenth district, as a referee, who found for the defendants in the case of McCollister v. Yard et al. , and for the intervener in the case of McFadden v Yard et al. Judgments and decrees were entered in accordance with said findings, from which the plaintiff and defendants respectively appeal.
As many facts are admitted, we will first set out the same, so far as applicable to the plaintiff's case: First. That on March 1, 1862, one Thomas Hill entered into a deed of adoption formally adopting the plaintiff; that said deed was delivered, and was on January 28, 1867, duly recorded; and it is conceded that the same is in all respects regular, but it was not recorded until after the plaintiff, by marriage, had reached her majority, but was recorded during the lifetime of the adopting parent. Second. Said Thomas Hill died testate June 1, 1885, seised of the real estate in controversy. Third. By his will, his wife, Eliza D Hill, if she survived him, was to become the absolute owner of all his property, both real and personal. Fourth. Eliza D. Hill died intestate January 16, 1886, and in possession and enjoyment of all said estate of Thomas Hill. Fifth. Neither Thomas nor Eliza D. Hill had issue. Sixth. The parents of said Eliza D. Hill were Francis H. Doran and Maria Van Aken, and they died, respectively, in 1840 and 1846. Seventh. The parents of said Eliza had issue other than said Eliza, one daughter, who died without issue about 1846, and one son, who disappeared, unmarried, about 1837, and has never since been heard from, and had no issue. Eighth. The defendants are a brother of Maria Van Aken, who was the mother of Eliza D. Hill, and the children and grandchildren of the remaining brothers and sisters of Maria Van Aken, and claim the estate of Eliza D. Hill as heirs of the mother, only, of Eliza D. Hill. Ninth. Francis H. Doran, father of Eliza D. Hill, has no heirs living.
The plaintiff claims the property by virtue of her adoption by Thomas Hill, and as his heir. The defendants claim the property as heirs of Eliza D. Hill, and deny that the estate passed to the heirs of said Thomas on the death of said Eliza. The defendants, in an answer to the plaintiff's petition, aver that, after the death of Thomas and Eliza D. Hill, the plaintiff began an action in the district court of Johnson county, Iowa contesting the will of said Thomas Hill, on the ground that he was of unsound mind, and that said will was procured through undue influence, and was void; that, after issue had been joined therein by these defendants, the parties to said litigation entered into an agreement whereby all the claims which the plaintiff had against the estate of either Thomas or Eliza D. Hill were settled by a payment to her of one thousand dollars which she still retains; and they claim she is now estopped from claiming any portion of the property in controversy. In a cross bill they also set up their claim to the property as heirs of Eliza D. Hill, and ask that title be quieted in them. The plaintiff, in a reply, admits the beginning of the action to set aside the will, but denies that she settled all claims she had against the estate of Thomas and Eliza D. Hill; says she agreed that a decree might be entered in said case on the payment to her of one thousand dollars, and that was all the agreement she made; that the alleged contract of settlement pleaded was without consideration, and is void, and, if made at all, was made under a mistake of fact, and belief that the defendants were entitled to the entire estate of Eliza D. Hill, whereas such was not the fact. The defendants amended their answer, alleging among other things, that the plaintiff was not a legal heir of Thomas Hill, that she was never legally adopted by him; that the articles of adoption were not filed for record until after her marriage, and when she had become an adult, and at a time when she was not subject to adoption under the law. To this amendment the plaintiff filed a reply, averring that by her marriage she did not become an adult, and that the filing of the articles of adoption, and record thereof, during the lifetime of Thomas Hill, was a compliance with the statute. She further claims that the defendants can not be heard to question her right to the property under said deed of adoption because they have no interest in the property claimed by her. On the trial, the defendants objected to the introduction of the deed of adoption because it appeared that it was recorded after the plaintiff was an adult, and because the deed was not signed by Eliza D. Hill.
The case of the intervener, McFadden: The intervener, McFadden, joins the plaintiff, and claims one half of the estate of Eliza D. Hill. She claims to have been legally adopted by Thomas Hill on July 1, 1882, by articles duly entered into and filed for record. When adopted, her name was Estella Welton, and she afterward lawfully took the name of McFadden. The facts admitted as to the plaintiff, and numbered from 2 to 9, inclusive, are also admitted in this case. Under these admitted facts, and by virtue of her adoption, she claims one half of the property in controversy. The defendants, as to her claim, say that as to whether the deed of adoption referred to was executed by the said Thomas Hill and Lizzie Welton, or as to whether the signatures of said parties thereto are genuine, or as to whether the same was ever delivered, the defendants have neither knowledge nor information sufficient to form a belief, and can not admit the same; deny that by said instrument she became or was the heir of Thomas Hill, or became entitled to the rights or privileges of a child of the blood of said Thomas Hill; deny that she has any ownership in the property in controversy; and deny that she is entitled to same, or any part thereof. Some questions touching the admissibility of evidence in this case may be referred to hereafter. It is sufficient now to say that it is claimed that no legal and proper evidence of the intervener's adoption was shown, and that, even if adopted, the statute conferred no rights upon her, except those existing between her and the adopting parent.
I. It is said that the defendants have no such interest in the property in controversy as to entitle them to question the plaintiff's right thereto. The plaintiff avers in her petition that the defendants claim to own the property; that they are in possession of it; that the defendant Welch, as the administrator of Eliza D. Hill, deceased, by some arrangement with the other defendants, is in possession and control of the estate, and enjoying the rents thereof. Her prayer is that the title to the real estate be confirmed in her, "or such portion thereof as the court should find belonging to her," etc. Whatever this action may be called, it is a proceeding in equity, and its purpose is to ascertain and fix the extent of the plaintiff's interest in this property. The burden is on the plaintiff to establish such facts as entitle her to a judgment and decree; otherwise, she can not recover; and in this view it is not necessary for us to give further attention to this branch of the case.
II. The material question in this case, as concerns the plaintiff, is, was she legally adopted by Thomas Hill. The only question raised touching the adoption is that the instrument of adoption was not filed for record until after the plaintiff had attained her majority; hence it is contended that the adoption was never completed.
Our statute relating to adoption provides that any person competent to make a will may adopt "as his own the minor child of another, conferring thereby upon such child all the rights, privileges, and responsibilities which would pertain to the child if born to the person adopting in lawful wedlock." Code, section 2307. Section 2308 of the Code provides, in substance, that the consent of the parents if living, must be obtained to an instrument in writing; that it must be signed by the party or parties consenting, and state the names of the parents if known, the name of the child if known, and the residence of all if known, and declaring the name by which such child is thereafter to be called and known, and stating that such child is given to the person adopting for the purpose of adoption as his own child. Sections 2309 and 2310 of the Code read as follows: ...
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