Shaver v. Nash

• Decision Date: 23 June 1930
• Docket Number: 66
• Citation: 29 S.W.2d 298,181 Ark. 1112
• Parties: SHAVER v. NASH
• Court: Arkansas Supreme Court

29 S.W.2d 298

181 Ark. 1112

SHAVER v. NASH

No. 66

Supreme Court of Arkansas

June 23, 1930

Certiorari to Miller Chancery Court; C. E. Johnson Chancellor; certiorari denied.

Prayer of petitioner denied.

Shaver Shaver & Williams, for appellant.

King Mahaffey, Wheeler & Bryson, for appellees.

OPINION

BUTLER, J.

On May 27, 1927, suit was begun in the Miller County Chancery Court by Mrs. Myrtle E. Nash and Vernon J. Bush, respondents herein, against Phyllis Ernestine Gill (also called Phillis Ernestine Nash), a minor, the petitioner herein. The object and purpose of this suit was to annul and set aside a certain adoption proceeding, wherein and whereby said minor had, on the 15th day of January, 1915, under the laws of Texas, been adopted by Mannie J. Nash, and the said Myrtle E. Nash. It was alleged in said complaint that Myrtle E. Nash was the widow of Mannie J. Nash, deceased, who theretofore were married September, 1900, and lived together in the marital relation until the death of Mannie J. Nash, August 25, 1921. That on the 6th day of October, 1908, Mannie J. Nash executed his last will and testament, bequeathing all his property to the said Myrtle E. Nash except a few small devises to near relatives. There was no issue, the result of said marriage, and no adoption other than the adoption of January 15, 1915. Answer to said complaint was filed by James D. Shaver, as guardian ad litem for the minor, in which a specific denial was made to each allegation, and, in addition to said denials, it was alleged that said adoption was valid, legal, and binding, and that plaintiffs were estopped to deny its validity, or to contradict or change the statements therein contained. On September 20, 1927, a trial of said cause was had, and decree rendered wherein the court found said adoption proceedings to be valid and in conformity to the laws of Texas. Notwithstanding, the court found said adoption to be in conformity to the laws of Texas, the court by said decree set aside and annulled said adoption and decreed and quieted the title to said property in Mrs. Myrtle E. Nash and Vernon J. Bush, to the exclusion of any and all rights and claim thereto of the said minor.

The respective contentions of the parties to this suit are stated in brief of the petitioner as follows: "Petitioner contends that the minor's status and rights by virtue of her adoption are the same as if she were a child of the blood of the adopter, and that her right to the property is not cut off or affected by the will. Respondents contend that the status and rights of the minor are in no sense those of a child, but that she possesses only the status and rights of a limited or qualified heir, and that such rights are completely cut off by the will."

We are of the opinion that the chancellor was correct in the conclusion reached. The proceedings in Texas did not in any respect comply with our adoption statute, chapter 2, §§ 252-256, inclusive, Crawford & Moses' Digest. This statute provides that an adoption shall be by court proceeding begun by the filing of the petition in the probate court stating the name of the petitioner, that of the child sought to be adopted, its age, whether it has any property, whether the child has either father or mother living, and, if so, their residence. The consent of the parent is required, which consent must be given in open court except where it is shown by competent testimony that the residence of the parent is unknown. It is also provided that a formal order shall be made and entered of record reciting all of the necessary jurisdictional facts, which order shall declare the child adopted, and thereupon the adoptive parent shall occupy the same position towards such child as if he were the natural parent and be liable and responsible as such, and the child shall receive all the rights and interests in the estate of the parent by adoption that such child would have if it had been the natural heir of the adoptive parent.

By articles 42 and 43 of the Revised Civil Statutes of Texas a mode of adoption is prescribed which was followed by the respondents in the instant case. Article 42 provides as follows: "Any person wishing to adopt another as his legal heir shall file in the office of the county clerk of the county in which he resides a written statement signed by him and duly authenticated or acknowledged as deeds are required to be, reciting in substance that he adopts the person named therein as his legal heir, and the same shall be admitted to record in said office." Article 43 is as follows: "When such statement is so recorded, it shall entitle any child so adopted to all the rights and privileges, both in...