Shaw v. Scott

• Decision Date: 09 January 1934
• Docket Number: 42096
• Citation: Shaw v. Scott, 217 Iowa 1259, 252 N.W. 237 (Iowa 1934)
• Parties: HELEN SHAW et al., Administrators, Plaintiffs, Appellees, v. IVA SCOTT et al., Defendants, Appellants; ETTIE WILLIS et al., Codefendants, Appellees
• Court: Iowa Supreme Court

252 N.W. 237

217 Iowa 1259

HELEN SHAW et al., Administrators, Plaintiffs, Appellees, v. IVA SCOTT et al., Defendants, Appellants; ETTIE WILLIS et al., Codefendants, Appellees

No. 42096

Supreme Court of Iowa, Des Moines

January 9, 1934

REHEARING DENIED MAY 19, 1934.

Appeal from Cherokee District Court.--C. W. PITTS, Judge.

Action in equity by administrators of the estate of Dollie Bell deceased, to establish the right of the estate of their decedent to all property belonging to the estates of J. C Richardson and Lizzie Richardson, deceased. The opinion states the facts. From a decree in favor of the plaintiffs the defendants appealed.

Affirmed.

I. R. Meltzer, and J. F. Loughlin, for appellants Iva Scott et al.

Lester C. Ary, and Jepson, Struble & Sifford, for appellees Helen Shaw and William Stanford, administrators de bonis non of estate of Dollie Bell.

Lew McDonald, for codefendant Elizabeth Nitz, special administrator of estates of Lizzie Richardson and J. C. Richardson, deceased.

Fred H. Free and E. O. Bundy, for codefendant Ettie Willis.

DONEGAN, J. CLAUSSEN, C. J., and EVANS, ALBERT, KINDIG, and KINTZINGER, JJ., concur.

OPINION

DONEGAN, J.--

The plaintiffs in this case are seeking to establish the right of their decedent, Dollie Bell, to all the property in the estates of Lizzie Richardson, deceased, and J. C. Richardson, deceased. All the defendants, except the administrators of the estates of Lizzie Richardson, deceased, and J. C. Richardson, deceased, and W. H. Flickinger, clerk of the district court of Cherokee county, Iowa, are heirs at law of said Lizzie Richardson or J. C. Richardson. The rights of the plaintiff-administrators of the estate of Dollie Bell, deceased, are based upon the alleged adoption of Dollie Bell by J. C. Richardson and Lizzie Richardson, his wife, and upon the subsequent conduct of all parties to said adoption, who are all now deceased. In order to better understand the issues presented, a statement of the salient facts is at this time advisable.

In 1877, J. C. Richardson and Lizzie Richardson, his wife, sometimes referred to as Eliza Richardson, were residents of Cherokee county, Iowa, and had no children. At that time there also lived in Cherokee county, Iowa, not far from the Richardsons, a man named James Roberts, whose wife had but recently died leaving three children, one of whom was named Almeda Roberts, then five years old. After the death of Mrs. Roberts, J. C. Richardson and Lizzie Richardson desired to adopt Almeda, and James Roberts, who was desirous of obtaining a good home for her, consented to her adoption by the Richardsons. An instrument purporting to be articles of adoption was drawn up and executed by J. C. Richardson and James Roberts, and was placed in the hands of a third person. Under the terms of this instrument, Almeda Roberts was placed in the custody of J. C. Richardson and Lizzie Richardson and was known as Dollie Richardson. This name she bore until the time of her marriage to a man named Bell, after which she was known as Dollie Bell.

About July, 1882, James Roberts consulted Mr. Molyneaux, a lawyer at Cherokee, Iowa, in reference to the legality of the purported instrument of adoption, and was advised that, while such instrument might be sufficient to transfer the custody of the child to the Richardsons, it was not sufficient as a deed or articles of adoption. Mr. Molyneaux, in behalf of Roberts, thereupon notified the Richardsons, demanding that new and legal articles of adoption be executed by them. No attention having been paid to this notice, Mr. Molyneaux, in behalf of Roberts, began an action of habeas corpus in the district court of Cherokee county, Iowa, asking for the custody of his daughter or for the execution of legal adoption papers. A hearing was had in this cause, and on January 1, 1883, C. H. Lewis, as judge of said court, entered an order which is as follows:

"And now on this 1st day of January, 1883, it is ordered that the papers herein be filed with the Clerk of the District Court of Cherokee County, Iowa, in compliance with Section 3490, Code 1873 be had.

"C. H. Lewis, Judge 4th Jud. Dist.

"James T. Roberts v. James S. Richardson & Eliza Richardson

"Findings by the Court:

"At request of the Defts. the facts are found herein and are as follows:

"1st. That shortly prior to July, 1877 the plaintiff James Roberts was a married man and that his family consisted of himself, wife and three children.

"2nd. That shortly before said July, 1877 the wife of the said James T. Roberts died and that at her death the three children here before mentioned were living, and that one of said children was Almeda Roberts and the same child in whose interest the writ herein is sought and that she was then about 5 years old.

"3rd. That on the 9th day of July, 1877 the said James T. Roberts and the deft. James S. Richardson signed the instrument in writing attached as Exhibit B to the petition of the plff. herein.

"4th. That at or about said date the said Almeda was by the said James T. placed in the care and custody of the said James S. & Eliza Richardson and that she has ever since so remained in their care and custody under and by virtue of said instrument.

"5th. That at the time of the execution of the said instrument the same was delivered to James S. Richardson by plff. Roberts and was placed in the hands of one Wm. Clover to be kept for the signors thereof and that at the time of the signing of the same and the delivery thereof both parties to said instrument intended that Richardson should legally adopt the said Almeda Roberts as his own child and that both said parties supposed that the instrument by them signed was effective and complete for that purpose.

"6th. That during the time the said Almeda has lived with R. & R. the plff. has resided a part of the time out of the State of Iowa and a part of the time in the State & in the County of Cherokee and that while he was a resident in Cherokee he has frequently visited the said Almeda at the home of the defts., R. & R.

"7th. That both plff. Roberts and Deft. James S. thought the writing Exhibit B in effect a legal adoption of the child Almeda till on or about the month of July 1882 when plff. demanded of Deft. James S. that other papers should be made. That nothing was said by the parties farther with reference to the matter till about two months ago when plff. first demanded the custody of the child or execution of legal adoption papers at which time the plff. was willing Almeda should remain with defts. if the adoption papers should be made.

"8th. That the plff. Roberts is now remarried and has a home to which he can and to which he desires to take the said Almeda. That at said home there resides the plff. & his wife and his one son Miller 8 years of age, the brother of Almeda.

"9th. That the children are affectionate toward the other and that the father and mother are both affectionate toward the children and that they are good and worthy people and fit in every way to have the care & custody of said Almeda.

"10th. That during all the time Almeda has been at the home of the Defts. R. & R. she has been properly & well fed, clothed, schooled & otherwise cared for. That the defts. have a good home for Almeda, and that they are worthy & good people and everyway fit to have the care and custody of the said girl. That defts have a strong affection for Almeda and that she has same for them and desires to remain with them.

"11th. That the Exhibit 'B' was never recorded and that no other articles of adoption was ever made or tendered till after the commencement of this action when on the hearing of the cause Defts. made answer and tendered to the plff. the articles offered in evidence herein and marked Exhibit 1.

"I find as matter of law.

"1st. That the writing signed by Roberts and Richardson attached to the petition and marked Exhibit 'A' was legal and operated to place the care and custody of the child Almeda with Richardson.

"2nd. That the said instrument did not absolutely and conclusively place the care & custody with said Richardson but that such custody and right thereto may be inquired into in the light of the said instrument and the present condition of the child and the parties Roberts and Richardson & Richardson.

"3rd. That the instrument Exhibit 'A' is not a legal adoption by Richardson of the said Almeda.

"4th. That until the future interposition of some Court or Judge the Defts. Richardson & Richardson are entitled to the custody of the said Almeda Roberts.

"It is therefore ordered that the care & custody of the said child Almeda Roberts be and remain in and with the said Richardson & Richardson and that the articles of adoption herein presented be filed with the Clerk of the Dist. Court of Cherokee Co., Iowa and that if the same should be signed by the said Roberts that then the same be entered of record as by law provided.

"It is further ordered that the plff. Roberts pay the costs of this action taxed as $ and that execution issue therefor to all of which the said Roberts excepts.

"Jany 1, 1883.

"C. H. Lewis, Judge of District Court."

It is claimed by plaintiffs, and, we think, supported by the evidence, that the new articles which the order states were tendered by the defendants were executed by both Richardson and his wife and by Roberts. A search of the records in the offices of the clerk of the district court and of the recorder of Cherokee county failed to show that said new articles were ever entered on the records in either of these offices. The only thing found having any reference to the habeas corpus case was the record showing the order above set out and some entries on the clerk's fee book. Following the entry of said...