Meyers' Estate, In re

• Decision Date: 04 March 1953
• Citation: 254 P.2d 227,197 Or. 520
• Parties: In re MEYERS' ESTATE. DAMSKOV v. MEYERS et al.
• Court: Oregon Supreme Court

Page 227

254 P.2d 227

197 Or. 520

In re MEYERS' ESTATE DAMSKOV v. MEYERS et al.

Supreme Court of Oregon.

Argued and Submitted Jan. 21, 1953.

Decided March 4, 1953.

Gordon A. Ramstead, of Eugene, and Howard Kaffun, of Salem, argued the cause and filed briefs for appellants.

William R. Thomas, of Lebanon, argued the cause for respondent. On the brief were Morley & Thomas, of Lebanon, and Harrison M. Weatherford and Weatherford & Thompson, on Albany.

Before WARNER, Acting C. J., and ROSSMAN, BRAND, TOOZE and PERRY, Justices.

WARNER, Acting Chief Justice.

This is an appeal from a proceeding for a determination of heirship wherein plaintiff claims to be the sole heir at law of Clarence Nelson Meyers (also known as Clarence Mayer), who died intestate in Linn County, Oregon, on the 13th day of August, 1950. It is brought here by the disappointed defendants who claim his estate as nearest of kin.

The defendants constitute on brother, five sisters and two nephews of the late Mr. Meyers who allege they are decedent's sole heirs at law.

The probate of Mr. Meyers' estate was instituted in the county court of Linn county. The plaintiff filed her petition in the proceeding praying that she be adjudged the decedent's daughter and sole heir. After issue was joined by the defendants, the contest was thereupon transferred to the circuit court of Linn county for hearing and determination. The resultant judgment favorable to plaintiff is the basis for the appeal.

Only one question is presented for our consideration: Was Iris Irene Damskov the sole heir of Clarence Nelson Meyers at the time of his death? The parties are agreed that he left no wife or other children surviving him, nor do they challenge the validity of the adoption proceeding had in 1919.

Plaintiff represents that she was born Iris Irene Parks, the daughter of Ira C. Parks and Flossie C. Parks, his wife who died soon after the birth of plaintiff; that in August, 1919, pursuant to adoption proceedings regularly had in the county court for Lane county, Oregon, the plaintiff was decreed to be the daughter of the decedent Clarence Meyers and his wife Iva; and that subsequently the Meyerses were divorced and decedent never remarried.

The material allegations of the plaintiff's petition are admitted by the defendants, except that they deny that plaintiff was the adopted daughter of the decedent at the time of his death. Concerning plaintiff's status as of that time, they allege that some time in June, 1931, a second adoption proceeding was had in the county court for Lane county wherein Ira Parks, plaintiff's natural father, and Della I. Parks, his second wife, became the adoptive parents of plaintiff and have been ever since July 31, 1931. In the 1931 proceeding, Iris Meyers, the former wife of the decedent and adoptive mother of plaintiff, gave her written consent to the second alleged adoption; and because of a failure to obtain a formal consent from the decedent, defendants claim that the desired result and regularity were accomplished by serving him by a published citation.

It is the contention of defendants that the second adoption proceeding revoked and destroyed plaintiff's status as a daughter and heir of Clarence Meyers. The regularity of the second adoption is challenged by plaintiff's reply. She also argues that if her adoption by the Parkses is regular, it, nevertheless, does not, as a matter of law, work a termination of her status as decedent's sole heir.

The gulf which separates defendants' high hopes from achievement can only be bridged by the employment of a judicial record that will withstand the test of legal principles long established in this state and ofttimes applied with approval. Defendants, to prevail in this matter, must first demonstrate beyond cavil that the plaintiff was legally adopted in 1931. If they fail in that cardinal accomplishment, then the chasm which separates their asserted right from realization continues as deep, dark and real as it was before they challenged the claim of plaintiff as the sole heir of Mr. Meyers.

At the very threshold of their legal presentation, they are met with the controlling case of Furgeson v. Jones, 17 Or. 204, 20 P. 842, 3 L.R.A. 620, 11 Am.St.Rep. 808. In that case this court, in 1888, laid down certain basic doctrines pertaining to adoption procedures which have ever since been consistently followed with respect and fidelity. See Volz et ux. v. Abelsen, 190 Or. 319, 324, 224 P.2d 213, 225 P.2d 768; In re Frazier's Estate, 180 Or. 232, 238, 177 P.2d 254, 170 A.L.R. 729; Williams et ux. v. Capparelli, 180 Or. 41, 44, 175 P.2d [197 Or. 525] 153; In re Flora's Adoption, 152 Or. 155, 159, 52 P.2d 178; Bagley v. Bloch, 83 Or. 607, 163 P. 425; DeVall v. DeVall, 57 Or. 128, 137, 109 P. 755, 110 P. 705; Non-She-Po v. Wa-Win-Ta, 37 Or. 213, 216, 62 P. 15, 82 Am.St.Rep. 749.

The reasons for the strict rules laid down in Furgeson v. Jones, supra, are supplied by Mr. Justice Lord in the following words, 17 Or. at pages 217 et seq., 20 P. at page 848:

'The permanent transfer of the natural rights of a parent was against the policy of the common law. The right of adoption, as conferred by this statute, was unknown to it, and repugnant to its principles. Such right was of civil law origin, and derived its sanction from its code. The right of adoption, then, being in derogation of common law, is a special power conferred by statute, and the rule is that such statutes must be strictly construed. Brown v. Basey [Barry], 3 Dall. 365 [1 L.Ed. 638]; Dwar.St. 257. This being so, the statute must receive a strict interpretation, and every requirement essential to authorize the court to exercise the special power conferred must be strictly complied with.

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'* * * The reason is that consent lies at the foundation of statutes of adoption, and, when it is required to be given and submitted to the court, the court cannot take jurisdiction of the subject-matter without it.'

What was said in the recent case of Quinn v. Hanks, 192 Or. 254, 233 P.2d 767, concerning the jurisdiction of circuit courts in the exercise of specially conferred statutory powers, applies with equal force to county courts exercising powers of the same character. We there expressed ourselves, 192 Or. at page 265, 233 P.2d at page 772, in the following language:

'The court which rendered this decree, although one of general jurisdiction, was then exercising a special power conferred upon it by statute, and not according to the course of the common law. It is well established in this state that a circuit court, when exercising a special power conferred upon it by statute, and not according to the course of the common law, is a court of special and inferior jurisdiction, and its proceedings in such cases are subject to all the incidents applicable to a court of that kind. Therefore, in order that its adjudications may be invulnerable to attack, its record must affirmatively show that jurisdiction existed. A decree of such a court is subject to collateral attack. * * * [Citing cases.]'

Also see Zipper v. Zipper, 192 Or. 568, 574, 235 P.2d 866.

In attempted contradiction of the foregoing doctrine, the appellants bring to our attention Wilson v. Hendricks, 164 Or. 486, at page 489, 102 P.2d 714, at page 715, where it is said:

'It is settled that the county courts of this state, when acting in probate matters, are courts of general jurisdiction, and, whenever their proceedings are called in question collaterally, they are entitled to all the legal presumptions pertaining to the records of courts of superior jurisdiction. * * *'

The principle there announced, and also in Woodburn Lodge No. 102 v. Wilson, 148 Or. 150, 159, 34 P.2d 611, cited in Wilson v. Hendricks, supra, is correct but readily distinguishable from the instant matter. Those cases relate to county courts in the exercise of their probate functions. Adoption is not a matter of probate. The court's powers with reference to it are conferred by a special statute. Moreover, even in probate when constructive notice is given to or constructive service obtained upon a nonresident, the rules anounced in Furgeson v. Jones, supra, Laughlin v. Hughes, 161 Or. 295, 306, 89 P.2d 568, and the more recent cases above cited, obtain and are applicable.

The proof of the second adoption depends upon the validity of the decree. The validity of the decree, in turn, depends upon a strict compliance with every statutory step required as a condition precedent to the granting of the decree. Those who rely upon such a decree as material to the success of their cause must being to the forum where adoption is in issue not the decree alone but a record which proclaims statutory compliance by a complete demonstration of a meticulous fulfillment of each detail required by the law to give jurisdictional vitality to the adoption. Laughlin v. Hughes, supra.

It is elementary that to support a judgment or decree there must not only be appropriate allegations in the pleadings but, when issue is joined, there must be adequate proof to support such allegations.

In the instant matter the defendants rely solely upon a selected part of the record of the second adoption. They have tendered as one exhibit the following documents from that record, and no more: the petition, the consent of the child's mother by the first adoption, the report of the state welfare commission, an affidavit of publication of citation, a citation with the sheriff's return of no service and the decree of adoption. The order directing service by publication, if one was made, is not a part of the record here.

Although the transcript of testimony strongly supports the conclusion that counsel for defendants in the trial labored under the mistaken notion that they were offering a certification of a complete adoption record, they here admit the incompleteness of the record in the adoption proceedings of 1931 and rely solely upon...