Krug v. Dayis , 87 Ind. 590 ( 1882 )

Niblack, J.

Action by Elizabeth Krug, formerly Elizabeth Davis, against Isaac Davis, to quiet title to, and to have partition of, real estate. The complaint was in two paragraphs, but both paragraphs contained substantially the same facts. Both paragraphs may be stated as representing that; on the 6th day of January, 1863, while the plaintiff was unmarried, she was delivered of an illegitimate female child, to whom the name of Emily Davis was given, and who became, known by that name; that the plaintiff and said child resided with the defendant and his wife, Jessie Davis, from the time said child was born until the death of the said Jessie, as hereinafter stated; that, at the February term, 1869, of the court of common pleas of Montgomery county, the defendant and his wife Jessie filed their petition in said court, verified by their affidavits, representing that they were desirous of adopting the said Emily Davis, then six years of age, as their child; that the said Emily was not the owner of any property, real or personal,, and that the plaintiff, who then, with the said Emily, resided in said county of Montgomery, was willing that she, the said Emily, should be adopted by the said petitioners; that thereupon the plaintiff appeared in open court and, as the mother of the said Emily, consented that the defendant and the said Jessie might adopt her, the said Emily, whereupon the court ordered that the said Emily, known as Emily Davis, should be considered as the child by adoption of the defendant and his said wife Jessie Davis, and to have acquired the same rights by descent as she would have had if she had been the child of the said defendant and Jessie; that afterwards, in October, 1870, the said Jessie Davis died intestate in said county of Montgomery, and the owner in fee of 320 acres of land lying in said county, leaving no children, except the said Emily Davis; that afterwards, in April, 1872, the said Emily, being then about nine years of áge, also died intestate, without any brother or sister, and without issue, leaving the plaintiff and defendant as her only heirs at law surviving her; that by reason of the premises the plaintiff is the owner by descent from the said Emily of two undivided third parts of the real estate of which the said Jessie Davis died seized, and the defendant is the owner of the remaining undivided third part of such real estate by descent from the said Jessie. Wherefore the plaintiff demanded that her title-to two undivided third parts of said real estate be quieted, and that partition thereof be made between her and the defendant.

A demurrer was sustained to both paragraphs of the complaint, and the defendant had final j udgment upon demurrer.

The only question presented is, Was the complaint sufficient upon demurrer ? Proceedings for the adoption of the children of other persons are of civil, and not of common, law origin. Hence, in all the States and places in this country in which the common law is in force, such proceedings can only be had under the authority of some express statute, unaided by any common law precedents. Many of the States have no law authorizing proceedings of the kind indicated, and all the statutes enacted by any of the States on the subject are of comparatively recent date. We have, in consequence, very few decided cases which have afforded us any assistance in our examination of this cause.

Our statute for. the adoption of children may be summarized as follows: That any person desirous of adopting any child >may file his petition therefor in the circuit or other proper court of the county in which such child resides; that the petition shall specify :

First. The name of such petitioner;

Second. The name of such child; its age; whether it has any property, and, if so, how much;

Third. Whether such child has either father or mother, and, if so, where they reside; such petition to be verified by the oath or affirmation of the petitioner.

That the court shall not grant the prayer of said petition, except in certain exceptional eases, if the father or mother of such child be living, unless such father or mother shall appear in open court and consent to such adoption; that when the court shall be satisfied that it will be for the interest of the child it shall grant the prayer of the petition, and that after such child shall be thus adopted it shall take the name in which it has been adopted, and shall be entitled to take and to receive, by descent or otherwise, all the interest in the estate of such adopted father or mother which it would if it were the natural heir of such adopted father or mother; that after adoption of such child its adopted father or mother shall occupy the same position towards it that he or she would if he or she were the natural father or mother of said child, and be liable for its maintenance, education, and in every other way responsible for it as a natural father or mother would be. 1 R. S. 1876, p. 416; R. S. 1881, section 823.

It'is conceded in argument that, under the rules of inheritance recognized and affirmed in the case of Barnhizel v. Ferrell. 47 Ind. 335, the appellant is the only heir at law of Emily Davis, the adopted child, and that, if the child Emily was lawfully adopted by Jessie Davis, the wife of the appellee, the •appellant is the owner by inheritance of two undivided third parts of the land of which partition is demanded, but it is maintained by appellee, with much earnestness and apparent ■confidence, that so much of the proceedings set forth in the ■complaint as purported to be an adoption of the child Emily by Jessie Davis were wholly unauthorized and void, and that, for that reason, the child Emily did not inherit any portion -of the property of the said Jessie Davis. In support of the position thus assumed by the appellee it is claimed that, under the statute, no two persons, not even husband and wife, can unite in proceedings to adopt a child; that the adopted father and the adopted mother are referred to in the statute disjunctively, and otherwise in such a way as to indicate a clear intention that only one person at a time can institute and carry forward proceedings for the adoption of a particular child, and that, on general principles, a wife can not be joined with her husband in such a proceeding without some express statute authorizing her to be made a co-party with him.

After a very careful consideration of all that has been submitted by counsel on both sides, we find ourselves unable to .agree to the construction of the statute contended for by the appellee. In giving a construction to a statute, we must always keep in view the palpable or presumable object the Legislature had in enacting it, and endeavor, so far as practicable, to make such an application of its provisions as will best promote “the object of its enactment.

The obvious purpose of the statute before us was to authorize the incorporation of the children of other persons into families desirous of assuming control over them, and in that way to sanction the formation of new and artificial family relations between persons not necessarily of the same blood. It evidently contemplates that persons desirous of adopting children under it shall be of suitable age to enter into parental relations, but as to such persons it applies as well to those who are married as to those who are unmarried. It would be inconsistent with the general scope and purpose of this-statute to permit two or more persons representing different families to jointly or concurrently adopt the same child, but that objection, in our estimation, does not apply to joint proceedings by husband and wife for the adoption of a child. On the contrary, the better and more reasonable construction appears to us to be that a wife may unite with her husband in-such a proceeding as, from the very nature of things, the interests of the entire family are necessarily involved in the object sought to be accomplished by it. There is not only no-inconsistency, but a manifest propriety, in the wife thus uniting with her husband, as, by doing so, the adopted child is-made to assume, in a general sense, the same position in the family which it would occupy if it were the natural child of both, born in lawful wedlock.

When necessary to give full effect to a statute, words importing the singular number only may be applied to the plural of persons and things. 2 R. S. 1876, 314, sec. 798, and R. S. 1881, sec. 1286. And we regard that rule as applicable to the statute under consideration to at least the extent of permitting husband and wife to jointly avail themselves of its provisions.

This construction is one which need never do any injustice* and may oftentimes promote the unity and joint interests of families wishing to adopt the children of other persons. It is in accordance, too, with the construction impliedly given to the same statute by the case of Barnhizel v. Ferrell, supra,. as well as by the later case of Isenhour v. Isenhour, 52 Ind. 328.

The judgment is reversed, with costs, and the cause remandod, with instructions to overrule the demurrer to both paragraphs of the complaint.