Prince v. Prince

• Decision Date: 18 June 1914
• Docket Number: 665
• Parties: PRINCE v. PRINCE et al.
• Court: Alabama Supreme Court

66 So. 27

188 Ala. 559

PRINCE v. PRINCE et al.

No. 665

Supreme Court of Alabama

June 18, 1914

Rehearing Denied July 25, 1914

Appeal from Circuit Court, De Kalb County; W.W. Haralson, Judge.

Ejectment by John G. Prince and others against Joe S. Prince. From a judgment for plaintiffs, defendant appeals. Affirmed.

Hunt &amp Wolfes, of Ft. Payne, for appellant.

Isbell & Scott, of Ft. Payne, for appellees.

DE GRAFFENRIED, J.

Section 5202 of the Code of 1907, which is now and was operative as the law of this state at the time to which we hereafter refer, provides as follows:

"Any person desirous to adopt a child so as to make it capable of inheriting his estate, real and personal, or to change the name of one previously adopted, may make a declaration in writing, attested by two witnesses, setting forth the name, sex and age of the child he wishes to adopt and the name he wishes it thereafter to be known by, which being acknowledged by the declarant before the judge of probate of the county of his residence filed and recorded *** has the effect to make such child capable of inheriting such estate of the declarant, and of changing its name to the one stated in the declaration."

1. Our laws of descent and distributions are of statutory creation, and, as the status of parent and child has always influenced legislative action in determining what shall become of the property of those who die intestate, it was appropriate that, in the statute which we have above quoted, our Legislature should provide that an adopted child should be capable of inheriting the estate of the person adopting him. The status of the parties being fixed, it was appropriate that all the incidents usually attendant or flowing out of the relations so established should attach to both the adoptive parent and child. For this reason this court has held that an adopted child is entitled, during minority, to claim exemptions out of his adoptive parent's estate. Cofer v. Scroggins, 98 Ala. 346, 13 So. 117, 39 Am.St.Rep. 54.

"The primary object of the statute would seem to be, to allow any person to adopt the child of another and make it capable of inheriting his estate, if he should die intestate, or to change the name of one previously adopted. But, a liberal intendment and operation should be given to the statute." Cofer v. Scroggins, supra; Tilley v. Harrison, 91 Ala. 297, 8 So. 802.

2. In the instant case the facts are that William T. Prince, on August 14, 1880, adopted Simeon Jones, a child then 3 years of age, and in the instrument declared that said Simeon Jones should be capable of inheriting his real and personal property, and that his name should be Simeon Jones Prince. It is inferable from the bill of exceptions that from the day that the adoption took place until the death of the foster father, about 30 years afterwards, the said Simeon Jones Prince lived with the said William T. Prince, as his child, and, as such child, performed services for the foster parent. During all this period it is also inferable that the said William T. Prince recognized and held out to the world as his adopted child the said Simeon Jones Prince. In other words, it is inferable from the bill of exceptions that for about 30 years--from the day of the adoption until the death of William T. Prince--the status of parent and child openly existed between the parties.

3. It appears from the bill of exceptions that after the death of said William T. Prince diligent search was made for the articles of adoption, but that they were not found. If any one has seen the articles since they were recorded on the minutes of the probate court of De Kalb county the record fails to show it. The probate record shows that the articles conformed to every requirement of our statutes, except that the minutes of the probate court fail to show that the articles were acknowledged before the judge of probate by the foster father. The trial court was of the opinion that, for this reason, the said Simeon Jones Prince--or, as he now writes his name, Joe S. Prince--failed to show a legal adoption, and for that reason is not entitled to be treated as the heir of said William T. Prince, who, it appears, was a childless man.

4. The sole question before us, then, is: Has this court the right to presume, or to leave it to a jury to presume, in aid of a status which, for 30 years, existed between the parties, that the foster parent actually acknowledged the instrument before the probate judge, but that the clerk, in recording the instrument by a clerical omission failed to record the acknowledgment? The act authorizing the adoption of children is, as we have already said, to be liberally construed for the purpose of carrying out the humane purposes of the act. The Legislature, however, in passing the act, had a right to say how the instrument evidencing the...