Riley v. McKinney
| Decision Date | 28 November 1914 |
| Docket Number | 29806 |
| Citation | 149 N.W. 603,167 Iowa 508 |
| Parties | WHITNEY HUGHES RILEY, Appellant, v. J. A. MCKINNEY, Administrator, LYDIA RILEY and ADA RILEY BROWN, Appellees |
| Court | Iowa Supreme Court |
Appeal from Polk District Court.--HON. HUGH BRENNAN, Judge.
ACTION against the administrator of John J. Riley, and against his widow and daughter, as beneficiaries of his estate. The plaintiff claims to be the owner of an undivided one-third of the estate of decedent, Riley, as an adopted child under and by virtue of a certain contract of adoption. A demurrer to his petition was sustained. He elected to stand upon his petition. Thereupon the trial court dismissed the same, and entered judgment against him for costs.
Affirmed.
Mulvaney & Mulvaney, for appellant.
Parker & Riley, for appellees.
The petition declares upon the following contract:
John J Riley and Wife to Gustavus Hughes.
Articles of Adoption.
Iowa Children's Home Society.
Contract.
Articles of agreement made and entered into this 24th day of June 1896, between the Iowa Children's Home Society, party of the first part, and John J. Riley and Lydia Riley, husband and wife, of Ankeny, county of Polk, and state of Iowa parties of the second part, witnesseth:
That the party of the first part has placed in the care, custody, and control of the parties of the second part at their home in Ankeny, Iowa to be trained, loved and educated so as to be fitted for the requirements of life, a certain male child, Gustavus Hughes, now known as Whitney Hughes Riley by name, said child having been born November 26, 1887.
The party of the first part agrees that it will leave said child in the care of the party of the second part so long as they shall love, cherish, nurture, educate, and properly care for said child in a suitable and Christian manner such as they would be required to were it their natural child, and the second party hereby acknowledge the receipt of said child, and agree on their part that they will faithfully perform and keep the conditions named above, both in letter and intent; and they further agree that they will give him an opportunity of obtaining a common school education, and, further, that when the child shall have attained the age of twenty-one years, they will give five hundred dollars ($ 500) in good and lawful money, together with at least two good and sufficient suits of clothing throughout to said Gustavus Hughes, now known as Whitney Hughes Riley, and will allow the said child after he becomes twenty-one years of age to go to and from their home and to enjoy said home as freely and fully as though it was their natural child.
Provided, however, that Gustavus Hughes, now known as Whitney Hughes Riley, the above-named child, shall prove himself reasonably faithful to the interest of John J. Riley and Lydia Riley until of legal age and does not leave their employ of his own volition. When the above-named conditions binding upon the Iowa Children's Home Society and Gustavus Hughes, now known as Whitney Hughes Riley, shall be complied with, then shall this contract remain in full force.
John Riley died in January, 1913, and left surviving his widow and one daughter.
The plaintiff contends that he is entitled to inherit one-third of the estate, as an adopted son, under the foregoing contract. Conceding that the instrument does not comply with all the requirements of the statute of adoption, he contends that it is a substantial and sufficient compliance therewith to entitle him to the inheritance claimed.
Sections 3250 and 3251 of the Code are as follows:
Sec. 3250. Any person competent to make a will is authorized in manner hereinafter set forth, to 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.
Sec. 3251. In order thereto the consent of both parents, if living, and not divorced or separated . . . shall be given to such adoption by an instrument, in writing signed by the party or parties consenting and stating the names of the parents, if known, the name of the child, if known, the name of the person adopting such child, and the residence of all, if known, and declaring the name by which such child is thereafter to be called and known, and stating, also, that such child is given to the person adopting for the purpose of adoption as his own child.
It will be readily noted that the contract sued on does not purport to be made in pursuance of the sections above...
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