Dillingham v. Schmidt , 85 Colo. 28 ( 1928 )

Mr. Justice Adams

delivered the opinion of the court.

This case originated in the county court of the City and County of Denver. It was appealed to the district court. It is now here on writ of error, to review the action of the district court. The last named court sustained the demurrer of defendant in' error, May Liberty Schmidt, to the caveat and objections <?f Georgie Dillingham, plaintiff in error, to the probate of the will of John George Schmidt, deceased. Georgie Dillingham elected to stand on her caveat and it was dismissed.

The petition of the successful party in the court below, May Liberty Schmidt, for probate of the will and letters testamentary, recites, inter alia, that deceased left surviving as his sole and only heirs at law, devisees and legatees; first, the petitioner, who is his daughter-in-law and devisee and legatee, and second, Georgie Dillingham, decedent’s daughter and heir at law. In point of fact, Georgie Dillingham is the granddaughter of deceased, and his legally adopted daughter. The decree in adoption was entered in the county court of the City and County of Denver, in July, 1908, about nineteen years before the will of her foster father, John George Schmidt, deceased, was offered for probate.

The will purports to give all of decedent’s property to the proponent, May Liberty Schmidt. Mrs. Dillingham’s objections are that decedent and his wife promised and agreed not to disinherit her, that this promise was one of the conditions of the decree in adoption; that in violation thereof, the will attempts to completely disinherit her, and that it is therefore void. The connty conrt and the district court decided against Mrs. Dillingham, and the will was admitted to probate.

The verified petition to adopt plaintiff in error, was filed in the county court by John G-. Schmidt and Maggie E. Schmidt, his wife. The only part of the decree in adoption that is questioned, is that which relates to the promise of the adoptive parents not to disinherit, and so this is all we need to quote. Such part reads: “* * * And the court having read said petition and having examined upon their oaths the said petitioners, and the court being fully satisfied from the testimony submitted herein of the ability of the petitioners to properly rear, educate and maintain said child and their promise not to disinherit said child; which promise is one of the conditions of this decree. * * *” (Here follows a statement of other facts, concluding with the order of adoption.)

The'case raises the following questions of law: (1) Meaning of the words “disinherit” or “disinheritance.” (2) Legality of agreement not to disinherit. (3) Consideration as affecting legality of such agreement. (4) The contention of defendant in error that the provision against disinheritance is not a part of the decree in adoption. (5) Right of the court to incorporate such provision in such decree. (6) Further, as to juris-' diction. (7) Right of the sole devisee and legatee under the will, to contest the conditions of decree in adoption. (8) Irregularities in judicial proceedings. (9) Right of adopted child to contest the will by caveat.

1. We see nothing complicated or uncertain in the meaning of the words “disinherit” or “disinheritance,” as applied to this case. Reference to almost any good dictionary will give the information.» The following are some of the definitions: Disinheritance. “The act by which a person deprives his heir of an inheritance, who, without such act, would inherit.” Bouvier’s Law Dictionary, (Rawle’s 3d Rev.) p. 886. “The act by which the owner of an estate deprives a person of the right to inherit the same, who would otherwise be his heir.” Black’s Law Dictionary (2d Ed.) p. 376. The verb “disinherit,” is defined in Webster’s New International Dictionary as meaning, “To cut off from, or deprive of, an inheritance or hereditary succession; to prevent, as an heir, from coming into possession of any property or right which, by law or custom, would devolve on him in the course of descent.” These definitions will suffice for our present purposes. They are quoted or applied in Anglin v. Patterson, 121 Okla. 106, 248 Pac. 632, 633; In Re Byford’s Will, 65 Okla. 159, 165 Pac. 194. These cases construe the word “disinherit,” as used in an Act of Congress relating to certain Indian tribes. The meaning is so plain that further citations are unnecessary. If the will of John George Schmidt as offered for probate be allowed to stand, it will operate as a complete disinheritance of plaintiff in error, contrary to the testator’s promise theretofore made, and the decree relating thereto. It is objectionable for this reason.

2. The legality of the agreement not to disinherit is called into question by counsel for defendant in error. Their right to assail the agreement is challenged by opposing counsel. We shall speak of this later. However, assuming, only for present purposes, that the question . of its validity has not been foreclosed by the former judgment or decree of the county court, entered in the year 1908, and even if we were permitted to go behind that, yet we find such agreements sustained in reason and precedent. In common with the rule in other jurisdictions, we have held a contract to make a particular will to be valid and enforceable. Oles v. Wilson, 57 Colo. 246, 141 Pac. 489. We see no reason why an agreement not to disinherit may not be of equal dignity, when it possesses the necessary elements of a contract, as in this instance. Other courts have so held. The one is a contract to do a certain thing; the other, not to do it, that is, to will or not to will. “By the weight of authority the laws permitting the adoption of children confer on them simply the ordinary rights of inheritance. * * 1 C. J. page 1396, § 122; 1 R. C. L. page 618, § 29. Such, in general, is the effect on the adopted child’s rights of inheritance under the Colorado statute. Session Laws 1927, c. 59, § 1, p. 183, amending C. L. § 5515. It does “not affect the power of the adoptive parent to dispose of his property by will, but the adoptive parent may deprive himself of the power thus to dispose of his property by a contract binding him to give the adopted child a certain share of his property.” 1 C. J. page 1396, § 122; Quinn v. Quinn, 5 S. D. 328, 58 N. .W. 808; Martin v. Long, 53 Neb. 694, 74 N. W. 43; Bedal v. Johnson, 37 Idaho, 359, 218 Pac. 641, 650; Taylor v. Mitchell, 87 Penn. St. 518; Jones v. Abbott, 228 Ill. 34, 81 N. E. 791. Such agreements “are not derogatory to the child’s necessary status as heir; on the contrary, they augment his privileges, by disqualifying the adopting parent from depriving him of the property promised, as the parent might do but for the promise. ’ ’ Bilderback v. Clark, 106 Kans. 737, 189 Pac. 977, 9 A. L. R. 1622; Note to 9 A. L. R. 1628. The agreement in the case' at bar was lawful and enforceable.

3. Counsel for defendant in error further attack the agreement not to disinherit on the ground of no consideration. Conceding again, only for the sake of their argument, that defendant in error is in a position to raise the point, still, it is not well taken. Among the elements of consideration existing, may well be included the acquirement by the adoptive parents of the child’s love and affection, her filial obligations to them, a change in domestic relationship, the consent of the surviving natural parent to forever relinquish his paternal rights, and the child’s forfeiture of her rights which she enjoyed before the adoption proceedings. It may be said that these are incidental to any adoption proceeding, but even so, it is not to be inferred that the natural parent’s consent would have been obtained, or that the court would have deemed it to have been for the best interests of the child to decree the adoption, had it not been for the promise. Concerning the parties, as said by the Supreme Court of Pennsylvania in Taylor v. Mitchell, supra, natural love and affection moved them to stipulate as they did. And here, other moving causes are apparent. Discussions concerning the matter of consideration, similar to what we have said, will be found in cases from other jurisdictions, above cited. See also Tuttle v. Winchell, 104 Neb. 750, 178 N. W. 755, 11 A. L. R. 814. It does not often happen that the consideration for a contract merged in a decree appears on the face of the final order, and seldom as clearly as in this one.

4. It is contended by counsel for defendant in error that the inhibition against disinheritance is not a part of the decree in adoption. We think otherwise. Section 5514 requires the court in its order to set forth the facts. One of these facts was the promise of the petitioners not to disinherit the child, “which promise,” so the order reads, “is one of the conditions of this decree.” It is difficult to see how language could be plainer. A fact of the highest importance being thus incorporated in the decree, and made a part of it, it is of little if any consequence on what line or in what paragraph it is inserted, or whether printed or written. It permeates the entire decree, and merely by crediting our eyesight, we hold that it is there.

5. As to the right of the court to make the order, or impose the condition: Counsel for defendant in error argue that the proceedings in adoption are statutory. This is true. Graham, v. Francis, 83 Colo. 346, 265 Pac. 690. The statute will be found in C. L. 1921, chapter 120, being sections 5512, 5513, 5514 and 5515 of such laws. Section 5515 is amended by Session Laws 1927, c. 59, § 1, p. 183, in a matter not material here. Counsel for defendant in error then go on to say that the statute does not require the adoptive parents to agree not to disinherit the adopted infant. This, too, is a fact, but it may also be added that the statute does not prevent them from making such a binding agreement. It does not follow that the agreement cannot be the subject of judicial cognizance merely because it is not statutory. One of the purposes of adoption proceedings is to change the succession to property. Session Laws 1927, c. 59, § 1, p. 183; Graham v. Francis, supra. And in the present case, the provision or agreement mentioned was not in derogation of the statute, but in furtherance thereof, that is, to make it more certain that its objects would be accomplished by insuring to plaintiff in error the enjoyment of the right of inheritance. Counsel for defendant in error are mistaken in supposing that it was mandatory on the court to decree the adoption without the condition mentioned. The argument might have merit if the court had been satisfied that it would have been for the best interests of the child to so decree without the provision, but this we have no right to assume. The contrary is evident. Of necessity, the court must be vested with discretion in adoption proceedings, considering the child’s welfare. 1 C. J. page 1389, § 93. And the exercise of such discretion, when not abused, will not be interfered with. Bancroft’s Probate Practice, vol. 4, §1447.

6. To make decrees in adoption is only one of the many items of business of the county court. It is a court of general jurisdiction, within its constitutional limitations. It had jurisdiction over the person of each interested party and the subject matter. This subject matter, as the decree on its face shows, was the welfare of the infant, her adoption, and the question of her inheritance, all of which are gerihane to the statute. Thus equipped, the court pronounced a valid judgment. Whether the two matters, i. e., the adoption and agreement not to disinherit, could or could not have been united in one proceeding, if seasonable objection had been made at the hearing, and one writ of error, by a party having the right to raise the point, is a question that is not before us.

7. As to the right of defendant in error, sole devisee and legatee under the will, to contest the conditions of the decree in adoption: For various reasons, she is not in a position to do so successfully. John George Schmidt, the testator and adoptive father of plaintiff in error could not do so if he were alive, on any ground here urged, for, as we said in Graham v. Francis, supra, (83 Colo. 347, 354), “Parties who have voluntarily submitted their controversy to a court having jurisdiction .of the subject matter, cannot be allowed to question its authority. Christ v. Flannagan, 23 Colo. 140, 46 Pac. 683; Whipple v. Wessels, 66 Colo. 120, 127, 180 Pac. 309.” Defendant in error is in no better position than Schmidt would have been. She is in privity with him, the recipient of his misplaced bounty, in his unlawful attempt to give to her, by his last will and testament, the rights of plaintiff in error, and thus defeat the latter’s rights of inheritance. In this matter, the rights of the beneficiary under the will are measured by the rights of her benefactor, the deceased testator.

8. Construed in the light most favorable to defendant in error, the express condition against disinheritance in the 1908 decree, was at best, a mere irregularity, if even that, committed by the county court in the exercise of its jurisdiction. In the subsequent collateral attack, the court was powerless to review such irregularity, even if it had been serious enough to reverse the old case on writ of error. Kavanagh v. Hamilton, 53 Colo. 157, 171, 125 Pac. 512; Clarke v. Asher, 53 Colo. 313, 314, 125 Pac. 538; Stokes v. Kingsbury, 63 Colo. 27, 29, 31, 164 Pac. 313; Black on Judgments, § 245. This principle has been frequently applied in other jurisdictions, in matters concerning adoption and infants’ property rights. Note to 16 A. L. R. 1024; 1 R. C. L. page 625, § 35; Appeal of Wolf, 10 Sadler (Pa.) 139, 13 Atl. 760; Bird v. Young, 56 Ohio St. 210, 46 N. E. 819; Bass v. Morton, 155 Term. 378, 293 S. W. 532. It is to be remembered that we are now considering the demurrer to the caveat, and we find nothing in the record to take the present case out of the general rule stated.

9. Concerning the right of the adopted child to contest the will by caveat: Plaintiff in error, adopted during her childhood by the testator, filed her caveat and objections to the probate of the will under section 5211, C. L. 1921, which reads as follows:

“On or before the day set for the hearing of the probate of such will, or the day to which such hearing may be continued, any person served with citation, as provided by law, or appearing at such probate, desiring to contest said will, or object to the validity or legality of all or any portion of the contents thereof, shall file in the county court a caveat or objections, in writing, which objections shall be subject to demurrer for insufficiency or motion to make more specific, definite or certain, and to amendment and answer as a complaint and answer in civil cases, and shall be divided into two classes, to-wit:

“First — All such objections as may raise the issue as to whether the writing in question be the last will of the testator or testatrix or not, which issue shall first be tried by a jury, unless waived, according to the practice in civil actions.

“Second — All such objections to the legality of the contents of such will which then exist and could then be raised and determined in any other action, which class of objections shall, if such instrument be found to be a will, be heard'and determined by the court, before such will be formally admitted to probate, and if, upon the hearing of such second class of objections, the court shall determine that any portion of the contents of such will is void, the court shall admit such will to probate, in so far as it shall be found to be valid and binding, and it shall be executed only in so far as its contents may be held to be valid and binding; and any portion of such estate not conveyed by such will because of the invalidity of any portion of its contents shall be held to be intestate property, to be administered as snch, by the executor or administrator with will annexed, appointed to execute such will. If the entire contents of such will be held void, such estate shall be administered as in other cases of intestacy.”

The legislature, by means of the above statute, established a way to “contest” a will, “or object to the validity or legality of all or any portion of the contents thereof,” by filing a caveat or objections. By means of the act, the law making body providently molded effective scissors, to nip confusion and litigation in the bud, at the outset of the attempted probate of a will, illegal in whole or in part. Its wisdom and utility are so apparent, and its provisions so clear, that mere reference to it is enough. “An adopted child entitled to inherit may contest.” Woerner on American Law of Administration, (3d Ed.) vol. 2, page 726, §217; Bernero v. Goodwin, 267 Mo. 427, 184 S. W. 74. Operating as we do, under the Colorado law, prolonged comments on decisions in other jurisdictions under their various statutes would be superfluous. Our statute is our guide.

A certified copy of the former decree, containing the condition against disinheritance, was attached to the caveat of plaintiff in error, and made a part thereof by express reference. The contention of counsel for defendant in error that the caveat was lacking in this regard, or in respect to matters contained in the decree, is untenable. It was as good as if recited at length in the caveat. It was also admirable in that it saved copy. Counsel for defendant in error argue that the evidence in the 1908 cause is not before us, but this merely furnishes an additional reason, if it were required, why we cannot review it.

We are not informed as to the reasons of the district court for sustaining the demurrer of defendant in error to the caveat and objections, but we have given the matter particular consideration, commensurate with the importance of the questions presented in the briefs, especially as our views are so obviously out of harmony with the ruling of the trial court.

Inasmuch as the attempted disinheritance was illegal, plaintiff in error is entitled to inherit, from all that appears of record, to the same extent as she would have been if the testator, John George Schmidt, had died intestate. The judgment will therefore be reversed with directions to overrule the demurrer.

Mr. Justice Burke, Mr. Justice Whiteord and Mr. Justice Campbell concur.

Mr. Chiee Justice Denison and Mr. Justice Butler concur in the result.

Mr. Justice Walker dissents.