Webb v. McIntosh

• Decision Date: 24 October 1916
• Docket Number: 31081
• Citation: 159 N.W. 637,178 Iowa 156
• Parties: FANNIE WEBB, Appellant, v. J. E. MCINTOSH, Administrator, et al., Appellees
• Court: Iowa Supreme Court

159 N.W. 637

178 Iowa 156

FANNIE WEBB, Appellant, v. J. E. MCINTOSH, Administrator, et al., Appellees

No. 31081

Supreme Court of Iowa, Des Moines

October 24, 1916

Appeal from Van Buren District Court.--D. M. ANDERSON, Judge.

ON February 8, 1913, Politha Palmer died intestate, and on the 28th day of the same month, J. E. McIntosh was appointed administrator of her estate. He filed his report as such July 18, 1914, showing that, after the payment of all debts and expenses of administration, he had $ 848.63 on hand for distribution. He recited further that the intestate left as her only heirs her children, Sadie Wiltshire and Frank Truitt, and "further shows that said decedent, in the year 1892, according to the records of Van Buren County Iowa, sought to adopt as her own child one Fannie Robins, who was then about five years of age; and at that time, a paper purporting to be a deed of adoption was recorded in the recorder's office of said Van Buren County, Iowa, but this administrator is advised that said purported deed of adoption was faulty, and not acknowledged and recorded as required by law, and therefore null and void; and, before making distribution of the funds of the estate, this administrator desires to be directed by the court in the premises. He shows a copy of said purported deed of adoption which is attached hereto, made a part of this report, and marked Exhibit 'A'."

He then asked for an order of distribution, and that, upon compliance therewith, he be discharged and his bondsmen released. The paper referred to reads:

"W T. Moon, Mayor of Milton, to T. F. and Politha Palmer. "Deed of Adoption.

"Milton Iowa, May 16, 1892.

"This indenture of adoption executed by and between William T. Moon, mayor of the town of Milton, and T. F. Palmer and Politha Palmer, both residents of the town of Milton, Van Buren County, Iowa; witnesseth: That the said William T. Moon, mayor of the town of Milton, by authority conferred in him by laws of the state of Iowa as such mayor, hereby give to the said T. F. Palmer and Politha Palmer, for the purpose of adoption as their own child, a female child of about the age of five years, said child's parents, whose names were Daniel and Annie Robins, both being dead. Now, I, William T. Moon, mayor of the town of Milton, Van Buren County, Iowa, hereby consent to said adoption, as said child is now a resident of the town of Milton, Van Buren County, Iowa, her parents both being dead, and said consent is given as required by law. The name by which said child shall hereafter be called and known is Fannie Palmer. And the said T. F. and Politha Palmer hereby accept and adopt said child as their own child, as provided by the laws of the state of Iowa. In witness whereof, the said parties have hereunto signed their names.

"W. T. Moon, Mayor of Milton.

"T. F. Palmer (X, his mark).

"Politha Palmer (X, her mark).

"Attest to signatures: A. L. Marsan.

"State of Iowa, Van Buren County, ss.

"On this 16th day of May, A. D. 1892, personally appeared before the undersigned, a notary public in and for Van Buren County, W. T. Moon, mayor of Milton, and T. F. and Politha Palmer, who acknowledged the execution of the same to be their voluntary act and deed.

"H. Clay Hargrove, Notary Public.

"Filed for record May 17th, 1892, at 8 o'clock A. M.

"Peter E. Walker, Recorder."

To this, Sadie Wiltshire and Frank Truitt filed objections to sharing the estate with Fannie (Palmer) Webb, because not a daughter of decedent and not legally adopted by her, for that (1) the mayor of Milton, an incorporated town, was not authorized by law to sign adoption papers; (2) the adoption paper fails to give name of child and is indefinite; (3) omits to state child is given to adopting persons as their own, and is not properly acknowledged.

Fannie (Palmer) Webb answered these objections by asserting that she was legally adopted and entitled to share in the inheritance and alleged that "if, for any reason, the said deed of adoption is held invalid as a statutory adoption, then your petitioner says that it is and constitutes a valid contract entered into and performed and attempted to be carried out by all parties, by which this petitioner is now entitled to the undivided one third of the estate of Politha Palmer, deceased, and she now claims said property under and by virtue of such contract, if it be held that said deed of adoption is not a statutory adoption. And in support of such claim she alleges that all parties thereto acted in good faith upon the validity of such adoption; that the petitioner, when a small child, was taken into the home of her supposed foster parents, Politha Palmer and husband, was treated by them as their own child, and gave to them the love and...