Rivers v. Rivers
| Citation | 200 So. 764,240 Ala. 648 |
| Decision Date | 06 March 1941 |
| Docket Number | 1 Div. 132. |
| Parties | RIVERS v. RIVERS. |
| Court | Alabama Supreme Court |
Appeal from Circuit Court, Mobile County; J. Blocker Thornton Judge.
Petition of Bessie Rivers, as legal guardian of Adele Rivers, a minor for a decree approving and authorizing the sale of the interest or claim of the minor to real estate, resisted by the minor by and through her guardian ad litem, Arthur J Kearley. From a decree granting the petition, the minor through said guardian ad litem, appeals.
Affirmed.
Arthur J. Kearley, of Mobile, for appellant.
Jere Austill, of Mobile, for appellee.
The appeal is by a guardian ad litem of a minor. The guardian ad litem makes preliminary suggestion that there was a suit pending at the time the instant petition was filed involving the validity of the adoption proceedings that culminated in a decree of adoption after the death of the petitioner (in the adoption proceedings), Mr. Rivers.
The prior equity suit by some of the heirs of Mr. Rivers against his widow and the minor child, the cestui que trust in this petition and subject of the petition for adoption, was to secure a judicial declaration of the effect of such alleged adoption proceedings.
The instant suit is different. It is by the guardian of said minor child, seeking authority to sell her claim or interest in the lands of Mr. Rivers, deceased. The heirs of said Rivers are not parties. The petition is by Bessie Rivers, "the legal guardian of Adele Rivers, formerly Adele Bird" and states the facts, specifically describes the lands sought to be sold, avers that she has a purchaser for the claims, rights, title and interest in said real estate "as said minor has" for the sum of $4,000, and prays for an order and decree that petitioner "as the legal guardian of said minor child might be directed to execute a conveyance of all rights, title, interest and claims which the said Adele Rivers might have in and to said lands."
The answer of the guardian ad litem exhibits the petition for adoption of said child, the consent of parent and legal guardian to adoption, and a final decree was rendered on October 22, 1936, after the death of said Mr. Rivers, which was of date of August 19, 1935.
It is thus apparent that the issues to be decided by the court in the two cases are essentially as follows: First, to determine whether said minor had an interest, legal or equitable, in the real estate of Mr. Rivers, deceased, by virtue of the abortive adoption proceedings; and, second, since the instant suit sought authority of a court of equity under its general jurisdiction to safeguard and protect the interest of minors made a ward of that court, to determine whether it is to her interest to sell her claim to the land in question when the outcome of the pending litigation challenging her right of heirship and legal adoption is doubtful.
It is the judgment of this court that the instant case is not within the terms or spirit of Section 5657 of the Code. The guardian ad litem insists that at the time the instant petition was filed by Bessie Rivers (for authority to sell the minor's claim or interest in the lands) that she had not by decree of the probate court been appointed as the legal guardian of said minor. This record shows, however, that she was so appointed as the cause proceeded and before the testimony was taken and at the time of the submission and final decree she was and had been appointed and qualified as the legal guardian of such minor. Thus was eliminated the objection made by the guardian ad litem in the determination of the instant question. That is, the court was, on submission for final decree, asked by the guardian of such minor to pass on the question of whether or not it was to the best interest of that minor to sell such claim or interest as she then had in the lands of Mr. Rivers at the averred price of $4,000.
The court of equity as guardian of minors had the jurisdiction and authority to determine whether the instant minor's claim in the lands of Mr. Rivers should be sold, whether invoked to that end by the adopted mother in that capacity, or by the natural guardian, or in her capacity as the legal guardian by appointment of the probate court when she had qualified as legal guardian before the case was submitted to the court for final decision, no objection or question as to the power or right of the court to determine the facts of best interest having intervened.
Having determined the two objections of procedural nature by the guardian ad litem, we turn to a consideration of the necessary questions of whether the attempt at adoption that eventuated in a belated decree (after petitioner's death) was of force and effect, and if not, whether it amounted to an agreement to adopt that equity will enforce, under the decisions of this court. Prince v. Prince, 194 Ala. 455, 69 So. 906; Marietta v. Faulkner, 220 Ala. 561, 126 So. 635.
The material provisions contained in the statute for adoption are: to authorize the adoption of a minor, it is required that a petition to that end be filed, investigation by the welfare department of the state be made, and consent by the minor child's parent or parents, as a condition to the decree of adoption, be had. Under the express terms of the statute, the initial decree must provide that from the date of final order of adoption (if such final order be entered) "such child, to all legal intents and purposes, will be the child of the petitioner or petitioners and that its name may be thereby changed." Cum.Supp.Michie's Alabama Code, § 9302, pp. 569, 570. This statute further provides that the final order of adoption shall not be granted until the child shall have lived for one year in the home of the petitioner and shall have been visited during the said period at least once in every three months by an agent of the state child welfare department or its duly authorized agent as provided therein. Cum.Supp.Michie's Alabama Code, § 9302, p. 570. Finally, by the express terms of statute, the child does not have the status of an adopted child and the court may revoke the initial order for good cause, either of its own motion or on the motion of the state welfare department or on the motion of the natural parent of such child. Cum.Supp.Michie's Alabama Code,§ 9302, p. 570.
Under the express terms of the statute, no child can have the legal status of an adopted child until it has lived one year in the home of the adoptive parents and until the court enters its final decree of adoption. It follows, necessarily, that during the one year period in question, the child does not under ...
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