Tyler v. Reynolds

• Decision Date: 18 March 1880
• Citation: 53 Iowa 146,4 N.W. 902
• Parties: TYLER AND OTHERS v. REYNOLDS.
• Court: Iowa Supreme Court

53 Iowa 146

4 N.W. 902

TYLER AND OTHERS

v.REYNOLDS.

Supreme Court of Iowa.

Filed March 18, 1880.

Appeal from Marion circuit court.

The object sought by this action is the partition of real estate. From the judgment of the circuit court the defendant appeals.John F. Lacey, for appellant.

Stone & Ayres, for appellees.

SEEVERS, J.

This cause was submitted to the court below upon the pleadings and an agreed statement of facts, from which it appeared that Philo Reynolds died on the thirteenth day of May, 1868. On the twenty-seventh day of December, 1867, he executed and acknowledged a certain instrument in writing, whereby he adopted the child of Mary A. Waldup as his own; the said Mary having also signed and acknowledged said instrument, thereby consenting to such adoption, and being the proper person to do so. The instrument provided the child should thereafter be known by the name of Alice Adelia Reynolds, and at the time the instrument was executed and acknowledged said child was delivered to “said Philo Reynolds, and entered into the family of said Philo Reynolds, who from that date treated the said child as his own, and openly and notoriously recognized the said child and acknowledged her to the world as his adopted child. All of which facts were known to the plaintiffs prior to the death of said Philo Reynolds.” The written instrument was not filed for record until the sixteenth day of May, 1868, three days after the death of said Reynolds. The said child died in 1869.

The only question to be determined is whether there was a legal adoption of the child which would entitle it to inherit as would the natural child of Philo Reynolds. It is provided by statute that any person competent to make a will is authorized to adopt the child of another, but the act of adoption must be evidenced by an instrument in writing, signed by the parents, or others, as defined by statute, acting for and on behalf of the child, and thereby giving their consent, and by the person adopting it. Code, §§ 2307, 2308. That statute further provides as follows: “Such instrument in writing * * * shall be acknowledged by all the parties thereto, in the same manner as deeds affecting real estate are required to be acknowledged, and shall be recorded in the recorder's office in the county where the person adopting resides, and shall be indexed with the name of the parents by adoption as grantor, and the child as grantee, in its original name, if stated in the instrument. Upon the execution, acknowledgement, and filing for record of such instrument, the rights, duties, and relations between the parents and child by adoption shall thereafter, in all respects, including the right of inheritance, be the same that exist by law between parent and child by lawful birth.” Code, §§ 2309, 2310.

The instrument in question in the present case was in all respects legal and binding, except that it was not filed for record until after the death of Philo Reynolds.

The right of inheritance is purely a statutory right, and is therefore arbitrary, absolute and unconditional. Nevertheless, the provisions of the statute must prevail, although to do so, in some instances, is inconsistent with our views as to what constitutes natural rights, or justice and equity. Therefore, a child by adoption cannot inherit from the parent by adoption unless the act of adoption has been done in strict accord with the statute.

The statutory terms and conditions are that the written instrument must be executed, signed,...