Crocker v. Balch ( 1900 )

Wilkes, J.

Andrew Johnson died in Davidson' County in 1897, possessed of a small estate of personal and real property. He left no issue, but only a widow, to whom be devised bis entire estate, real and personal. Tbe will was duly probated in common form.

Charles Balcb and wife, Anneta’ filed a petition in the County Court, asking to set aside tbe probate and to be allowed to contest tbe will upon an issue devisavit vel non. Tbe petition states that Anneta is an adopted child of tbe testator. Tbe widow answered tbe petition and denied tbe fact of adoption. Tbe County Court ordered tbe controversy certified to tbe Circuit Court for bearing. In that Court tbe widow moved that tbe petitioner, Anneta, be required to show that she was legally adopted. It was so ordered by tbe Court. Certain proceedings in tbe County Court of Davidson Ooirnty were then introduced to sustain the contention, and tbe Court held them sufficient to. establish tbe petitioner’s adoption, and consequently her right to contest tbe will. An appeal was thereupon prayed to this Court, which was refused, and bearing Upon tbe issue of devisavit vel non was proceeded with, resulting in a mistrial. Tbe adminstrator with tbe will annexed thereupon applied for a rehearing upon the question of adoption, and it was granted, and the Court reaffirmed its former holding, but granted an appeal from its ruling to this Court.

• It is now insisted that granting the appeal is error. The right of a person to contest a will presents a controversy separate from and preliminary to the contest itself. Wynne v. Spiers., 7 Hum., 393; Cornwell v. Cornwell, 11 Hum., 485; Keith v. Raglan, 1 Cold., 477; Townsend v. Townsend, 4 Cold., 84. It is insisted that the adoption proceedings in the County Court are void, for several reasons: First, because the record does not show upon its face that Johnson and wife, who adopted the child, were, at the time they filed their petition, citizens of .Davidson County.

Our statute (Shannon, Sec. 5402) provides for the adoption of children on the application of any resident citizen of the county in which the application is made. The petition should set forth the reasons and terms of adoption (Sec. 5409), and the Court, if satisfied with the reasons given, may sanction the adoption by decree entered on its minutes embodying the petition and directing the terms of the adoption. Sec. 5410. Sec. 5411 declares what shall be the effect of such adoption.

It has been field that there is a material difference between adoption and legitimation. Murphy v. Portrum, 11 Pickle, 605-609. The provisions of the statute, supra, as well as others on the same subject, make tbe County Court one of general jurisdiction over matters pertaining to tbe adoption and legitimating of children. It bas been held that the decree of such Court of general .jurisdiction cannot be collaterally questioned, except for want of authority over the matter adjudicated, and in such case the record must show affirmatively such want of authority. In the absence of anything in the record impeaching the right of such Court to determine the question involved, there is a conclusive presumption that it had such right. Reinhardt v. Nealis, 17 Pickle, 173; Kindal v. Titus, 9 Heis., 727; Pope v. Harrison, 16 Lea, 82. It is said the decree of the Court is too indefinite and vague to confer any rights. The decree sets out the petition verbatim and confirms it and makes it the decree of the Court. The statu te prescribes that the decree shall embody the petition and direct the terms of adoption.

"While the decree in this case may be meager, it sets out substantially all that is • required by the statute. It need not recite all the terms of adoption, as the effect of adoption is fixed by the' statute. The petition sets out the reasons for adoption and the terms, and its prayer is confirmed, and the petition and prayer are made the decree of the Court.

It is said that the administrator with the will annexed is the only party who has appealed to this Court, and that he has done so on the pauper oath. The widow, who is the sole devisee, has not appealed. She was the only party to the contest when it was commenced. The administrator with the will annexed was afterwards appointed and became a party. This, we think, is not irregular, so far as making the administrator with will annexed a party. In appealing, it is evident that he should not have been permitted to take the pauper oath, as the assets of the estate are responsible for the costs of his contest made in good faith. There was no preliminary motion made, however, to dismiss. As the case must result, the matter is not important, as the judgment of the Court below must be affirmed and cause remanded, to the end that the contest of the will may proceed, if desired. The costs of the appeal will be paid by the appellant, and he will recover the same out of the assets of the estate which may come into his hands.