Wilson v. Otis

Whether the administrator is a necessary party does not seem to be of importance in this case, and is not considered, since the widow and Arthur H. Edgefly or Otis on the one side, and the next of kin to the deceased on the other, are proper parties having a direct pecuniary interest in the distribution of the estate.

The question raised by the case is whether the defendants are entitled to inherit a part of the estate; and this depends upon the question whether Arthur was legally adopted by the deceased. If he was legally adopted, it is conceded that he would inherit the estate subject to the widow's rights and to the exclusion of the defendants. G. L, c. 188, s. 4. Their contention is that there was no valid judgment or decree of adoption by the probate court, in which the deceased entered a petition for that purpose. It is found as a fact, that upon that petition the judge of probate judicially what the imperfect document signed by him, upon a reasonable construction thereof, shows he did. If upon competent evidence it appears that the court, having jurisdiction of the subject-matter, determined the issue or point presented by the petition, the parties are concluded thereby. Whether the judgment was actually entered up in the technical form of a decree, is not material in this collateral proceeding. Nihan v. Knight, 56 N.H. 167.

Did the court grant the prayer of the petition? It appears from the record that the court, presumably upon competent evidence, found certain facts which were essential to a decree of adoption. G. L., c. 188, s. 3. These facts are expressly recited in the signed document, which, taken in connection with the petition, indicate with much force that the judge understood that he had decided the question of adoption, and that nothing remained to be done except to enter up a formal decree. The signing of the blank form of a decree of adoption as a part of the record would be inconsistent with a judgment denying the prayer of the petition, and would not indicate that the court was in doubt as to what the final order should be. Nor is it reasonable to infer that the judge did not attach any importance to this document — that he regarded it as a waste piece of paper. Having some significance, it must be deemed to indicate the judge's finding upon the petition in favor of adoption. As he had made specific findings of fact relating to the merits of the action and signed a blank decree, the work of filling up the blanks was merely clerical, requiring the exercise of no judicial function. If he had entered a minute on the docket to the effect that "the petition is granted," that would have been conclusive evidence, in a collateral proceeding, of the judicial act of rendering judgment in accordance with the prayer of the petition (State v. Narcarm, 69 N.H. 237; State v. Cox, 69 N.H. 246; Matthews v. Houghton,11 Me. 377; Felter v. Mulliner, 2 Johns. 181; Fish v. Emerson, 44 N.Y. 376,378; Swain v. Gilder, 61 Miss. 667, 671; Overall v. Pero, 7 Mich. 315; Lynch v. Kelly, 41 Cal. 232, 233); but such evidence would be no more convincing than the evidence furnished by the record in this case. Upon a reasonable construction of the record, the fact that a judgment of adoption was rendered is not susceptible of serious doubt. Freem. Judg. (4th ed.), s. 45; McDonald v. Frost, 99 Mo. 44, 48.

The fact that the petition with the blank decree at some time after the hearing was taken from the files or from the possession of the judge, and was not returned for some years, did not have the effect of invalidating the previous action of the court. The record, having been restored, is as competent and conclusive evidence of the judgment as though it had remained on the files.

But it is insisted that the judge of probate had no jurisdiction to decide the question presented, or to render a judgment thereon, because it does not affirmatively appear in the record that the mother of the boy consented in writing to the adoption, as required by the statute. (G. L., c. 188, s. 2. This fact, however, is not necessarily essential to the exercise of jurisdiction by the probate court. If the parent has abandoned the child for three years, his consent to adoption proceedings is rendered unnecessary by the statute. G. L, c. 188, s. 2. It is for the court, after having acquired jurisdiction by the filing of an appropriate petition, to decide in the first instance whether the parent has consented to a decree of adoption; if not, whether there is any valid excuse for his non-action, as death, insanity, or other disability; or whether he has so far abandoned his parental duties for three years as to render his consent unnecessary. These, with other preliminary questions that might be suggested, must be determined upon evidence and a hearing by the judge, after he has acquired jurisdiction of the general subject-matter of the petition. The filing of the petition and the appearance of proper parties gave him, under the statute (G. L., c. 189, s. 4), power to act judicially. Horne v. Rochester,62 N.H. 347, 348, 349; Spaulding v. Groton, 68 N.H. 77, 78. The court was not asked to do what it had no judicial power to do under any circumstances. It became its duty to act upon the subject-matter presented, and to receive evidence upon all material questions suggested, among others upon the question excuse for the failure of the mother to consent to a decree of adoption. State v. Arlin, 27 N.H. 116, 129. If its decision was erroneous upon this question, the error did not render the proceedings absolutely void (State v. Richmond, 26 N.H. 232; White v. Landaff,35 N.H. 128, 130), so that they might be disregarded in a collateral suit. The error, if there was one, was correctible by appellate procedure, and does not prove a want of jurisdiction in the probate court. Fowler v. Brooks, 64 N.H. 423, 424; Kimball v. Fisk, 39 N.H. 110.

Nor does the absence in the petition of an allegation of abandonment, or of the mother's consent, affect the question of general jurisdiction. It is not necessary that the petition should contain a full statement of all facts essential to a decree. It might seriously fail in this respect, or be demurrable, and still state a case calling for and requiring the exercise of the judicial power of the court. The test has been said to be, not whether it states a perfect case, but whether the court has the power to grant the relief sought in a proper case. Van Fleet Col. At., s. 61. If upon a petition for adoption which omits these allegations the court finds the fact of abandonment, as well as other necessary facts, its decree of adoption is valid. The judgment or decree necessarily implies a finding of all material facts not inconsistent with the record, one of which may be the fact of abandonment. In this case as the finding of that fact is not inconsistent with other facts disclosed by the case or the record, it is included in the general finding in favor of adoption, and furnishes a. valid excuse for the non-consent of the mother. Erwin v. Lowry, 7 How. 172; Florentine v. Barton, 2 Wall. 210, 216; Thornton v. Baker, 15 R. I. 553. The judgment of adoption, therefore, is not impeachable in this proceeding.

Whether the defendants claiming title under Otis, the original petitioner, are in a position to attack a decree granted in his favor and recognized by him as valid for many years, may not be a doubtful question (State v. Weare, 38 N.H. 314, 316); but it is unnecessary to decide it at this time. For reasons above suggested the defendants are not entitled to share in the estate under a decree of a distribution.

Case discharged.

All concurred.