Purinton v. Jamrock

Decision Date02 April 1907
Citation195 Mass. 187,80 N.E. 802
PartiesPURINTON et al. v. JAMROCK.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court
COUNSEL

Frederick L. Greene, for petitioners.

Moorfield Storey, M. J. Sughrue, and H. S. Davis, for respondent.

OPINION

SHELDON J.

We think it manifest that the ruling by which the resolution passed by the State Board of Charity on March 18, 1904, was excluded was correct. Indeed, there has been no direct argument to the contrary, although, as this exception is referred to in the opening statement of the respondent's brief, we have not felt at liberty to treat it as waived. The view of the members of the board, stated in that resolution however commendable in themselves were not material to any issues involved in the hearing. It was the duty of the court itself to pass upon all disputed questions of law and of fact. Brunelle v. Lowell Electric Light Corp. (Middlesex Feb. 28, 1907) 80 N.E. 466. Nor could this resolution be received to show that the board refused to consent to the adoption prayed for. No such consent was required by the statute. Rev. Laws, c. 154, §§ 2, 3. And the board had appeared in the probate court by the Attorney General and neither consented nor objected to the adoption. For the same reasons the effect of the vote of the board relating to the removal of Kate Jamrock from the family of the petitioners was properly limited. And it follows that the sixth request for rulings was rightly refused.

Statutes relating to adoption are in alteration of the common law and must be strictly followed in all essential particulars. Foster v. Watertman, 124 Mass. 592, 594, 595. Johnson v. Terry, 34 Conn. 259; Watts v. Duall, 184 Ill. 86, 56 N.E. 303, 75 Am. St. Rep. 141; Sarazin v. Union Railroad, 153 Mo. 479, 55 S.W. 92; Furgeson v. Jones, 17 Or. 204, 20 P. 842, 3 L. R. A. 620, 11 Am. St. Rep. 808; Ex parte Clark, 87 Cal. 638, 25 P. 967. The child whose adoption is sought is illegitimate. It is provided by our statute that 'illegitimacy shall in no case be expressly averred upon the record.' Rev. Laws, c. 154, § 2; St. 1902, p. 482, c. 544, § 22; St. 1904, p. 252, c. 302. This petition describes the child as the 'child of Mary Jamrock, a single woman.' The respondent contends that this is an express averment of illegitimacy within the meaning of the statute, and that this violation of the statute makes the petition incurably bad and avoids the whole proceeding; that the defect is like that which was considered in McDonald v. Green, 176 Mass. 113, 57 N.E. 211, and accordingly that no valid decree of adoption could be made.

Assuming that this contention is open to the respondent upon these exceptions, in our opinion it cannot be sustained. The present statute is a substitute for the original provision of Rev. Laws, c. 154, § 2, that the fact of illegitimacy should in no case appear upon the record. This change of language must be presumed to have been made advisedly. There is a plain distinction between forbidding a fact to appear upon the record by inference or otherwise, and forbidding the pleader from making an express averment of that fact. If the statute had required an express averment of illegitimacy to be made, an inferential averment like that in question would not have been sufficient at common law. Atwood v. Caswell, 19 Pick. 493; Salt Lake City National Bank v. Hendrickson, 40 N. J. Law, 52, 56; Mower v. Burdick, 4 McLean (N. S.) 7, Fed. Cas. No. 9890; Wadhams v. Swan, 109 Ill. 46. It is at most an inferential statement only, not such an express averment as the statute forbids. Nor, if this were otherwise, should such a defect deprive the court of its jurisdiction or make further proceedings upon the petition impossible. The probate court might if it chose order the words 'single woman' to be stricken out of the petition. In the authority over the making up of the record given to it by Rev. Laws, c. 162, § 35, it might prevent the final recording of any such averment. It is not every minor error that can deprive the court of jurisdiction. Sewall v. Roberts, 115 Mass. 262; In re Edds, 137 Mass. 346. The very statute which makes this prohibition provides for obtaining the consent 'of the mother only if the child is illegitimate,' and thus seems to contemplate some reference to that fact. It may have been for this reason that only the express averment of illegitimacy was forbidden.

The first request rightly was refused, upon the finding that the mother, for more than two years continuously prior to this petition, had suffered her child to be supported as a pauper by the Commonwealth. Rev. Laws, c. 154, § 3. Unless on the evidence this finding was erroneous as a matter of law, it must stand; for the case comes before us only on exceptions, without any appeal. It is not claimed that the child was not supported as a pauper. Opinion of the Justices, 11 Pick. 538. The respondent's contention is that this finding was erroneous, because the proceedings which the child was committed to the custody of the State Board of Charity and supported by the commonwealth were adversary to her, that she was unable to resist them, that she did not acquiesce in them, and accordingly that she cannot properly be said to have 'suffered' her child to be supported by the commonwealth. She contends that the word 'suffer' implies not merely nonresistance to that which is done, but also an approval of or at least an acquiescence in it, with an ability to prevent it; and that she cannot be said to have suffered her child to be so supported unless she either approved of this result or failed to make reasonable efforts to prevent it. To show that this is the meaning to be put upon the word 'suffer' she cites, among other cases, Hobson v. Middleton, 6 Barn. & Cress. 295; Bosley v. Davies, 1 Q. B. D. 84; Gregory v. United States, 17 Blatchf. (U. S.) 325, Fed. Cas. No. 5,803; Selleck v. Selleck, 19 Conn. 501; Robertson v. Ongley Electric Co., 82 Hun (N. Y.) 585, 31 N.Y.S. 605; Commonwealth v. Fourteen Hogs, 10 Serg. & R. (Pa.) 393; Collinsville v. Scanland, 58 Ill. 221. But if we assume without deciding that this is the meaning of the word 'suffer' as used in this statute, as it seems to have been assumed at the hearing, yet the facts found and the testimony are ample to show that she did so acquiesce in the support of her child as a pauper. She had made only a few cursory inquiries, the latest of which was much more than two years before the filing of the petition. She does not appear to have made any opposition to the adjudication by which the child was taken from her, although notified of the proceedings. She took no appeal from that judgment. She never has sought to regain the custody of her child by application to the State Board of Charity under St. 1903, p. 291, c. 334, § 3. In re Wares, Petitioner, 161 Mass. 70, 36 N.E. 586. The very complaint upon which the adjudication was made charges, not the poverty of the mother, but her 'neglect, crime, drunkenness, or other vice.' It rested upon what must now be taken to have been her voluntary acts and omissions. On all the evidence, we are satisfied that the finding made was fully warranted.

The other requests for rulings seem to us to have been disposed of by the findings. It it undoubtedly the general policy of the commonwealth to secure to those of its wards who are children of tender years the right to be brought up, where this is reasonably practicable, on the religion of their parents. St. 1905, p. 411, c. 464, § 1. But it is the right of the children that is protected by this statute. The rights of the parents are still regulated by the same principles as before. The mother of an illegitimate child has doubtless all the rights of other parents. Wright v. Wright, 2 Mass. 109; Barnado v McHugh [1891] A. C. 388; Regina v. Nash, 10 Q. B. D. 454; Rex v. New, 20 T. L. R. 583; Kerrigan v. Hall, 4 Frazer (Ct. of Sess.) 10. But in such a case as this it is not the rights of the parent that are chiefly to be considered. The first and paramount duty is to consult the welfare of the child. The wishes of the parent as to the religious education and surroundings of the child are entitled to weight; if there is nothing to put in the balance against them, ordinarily they will be decisive. If, however, those wishes cannot be carried into effect without sacrificing what the court sees to be for the welfare of the child, they must so far be disregarded. The court will not itself prefer one church to another, but will act without bias for the welfare of the child under the circumstances of each case. This is the fair consensus of judicial opinion, although a difference of circumstances has caused the use of different expressions and the reaching of different results in the different cases. As was said in substance in F. v. F. [1902] 1 Ch. 688, the parents' religion is prima facie the infant's religion, and the infant should be brought up in that religion and protected against disturbing influences from persons of a different religious faith; but the infant's welfare must be first of all regarded and its requirements must be treated as paramount. See Stoneton v. Stoneton, 8 De G., M. & G. 760; Davis v. Davis, 10 W. Rep. 245; In re Nevin [1892] 2 Ch. 249; McGrath v. McGrath [1892] 2 Ch. 496, s. c. on appeal, [1893] 1 Ch. 143; In re Meades, Ir. R. 5 Eq. 98; Matter of Jacquet, 40 N.Y. Misc. 575, 82 N.Y.S. 986; Matter of De Marcellin, 24 Hun (N. Y.) 207; Matter of Turner, 19 N. J. Eq. 433. Cases like Queen v. Williams, 58 L. J. N. S. Q. B. 176, Queen v. Barnado, 58 L. J. N. S. Q. B. 522, and Queen v. Clarke, 7 E. & B. 186, in which the return of a child to a parent who had lost no right was opposed by reason of a difference in religious belief, have no application here. This child...

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