Woodward's Appeal , 81 Conn. 152 ( 1908 )

Probate jurisdiction is within the jurisdiction of the Superior Court, but can be invoked only upon appeal from the Court of Probate, in which court original jurisdiction of this nature is vested. Upon such appeal the Superior Court acts as a probate court, exercising its powers and duties in respect to the matter defined in the appeal. In this case the matter before the Court of Probate, and the Superior Court upon appeal, was the duty imposed by statute upon the Court of Probate, of distributing the personal estate of an intestate in accordance with the directions of our statutes of distribution. In the performance of that duty, it is the duty of the court to ascertain who are the distributes prescribed by our statute. Mack's Appeal, 71 Conn. 122, 128, 41 A. 242. If, in this case, by reason of an error of the court in performing its statutory duty of ascertaining the statutory distributes, the order of distribution does not distribute the estate, or any portion of it, to a person to whom the statute says it shall be distributed, then the Court of Probate erred in making the order appealed from, and the Superior Court erred in confirming that order.

The statute (§ 398) directs the court, when the intestate dies leaving no children or any legal representatives of them, to distribute a prescribed portion of the estate to the widow, and the remainder to the parents of the intestate, if any, and if there be no parent, then equally to the brothers and sisters of the whole blood. It appeared to the court that the intestate died leaving a widow, leaving no issue, and no parents, and that the appellant was his sister of the whole blood. Upon these facts alone it was the duty of the court to distribute a portion of the estate to the appellant. But it further appeared to the court that on November 6th, 1863, a county judge of the county of Milwaukee in the State of Wisconsin, upon the petition of the intestate and his wife, passed a decree purporting to give, by authority of the Wisconsin law, to Elizabeth E. Burton, then an infant two years and seven months of age (being the Elizabeth E. B. Potter to whom the Court of Probate made distribution), the same capacity of inheritance and succession she would have if she had been born the lawful child of the petitioners. This action of the Wisconsin court is called by the law of that State, and somewhat similar action, authorized by the law of this State, is called by our law, an "adoption."

"Adoption" was never used to express the peculiar incidents of such action prior to 1846, when the States of the United States in which the common law of England is followed began to enact statutes similar to that of Wisconsin and to that of our own State. Before that time, the meaning of adoption as expressing a legal status was that derived from the Roman law. The peculiar status or relationship arising from adoption known to Roman law is of a kind unknown to the law of England, and of a kind unknown to the law of this State, certainly until 1864, when the statute referred to (§ 233) was passed. Dicey on Conflict of Laws, p. 475. It may aid the consideration of questions arising under such statutes to note the distinction between adoption as a status existing under the Roman law, and the statutory status which since 1846 has been established by the legislatures of this and some other States retaining the English common law.

Roman adoption, or the act by which the relations of paternity and filiation are recognized as legally existing between persons not so related by nature, derived its original significance mainly from the existence of the patria potestas. which was peculiar to Roman citizenship and involved, as between parent and child, relations of paternity and filiation peculiar to Roman law. A child born in lawful marriage was in the power of its father. That power includes not only the child born in wedlock, but also the child born to his son and the one born to his son; that is, your son, grandson, great-grandson and other descendants are equally in your power. Just. Inst. (1876) I, Tit. IX, ¶ 1-3. Roman adoption, until the legislation of Justinian, was the act by which an ascendent transferred his descendant who was in his power to the power of another ascendent, and thereupon the person so transferred was in the power of the adopting ascendent as well as his actual children. The act was accomplished through prescribed formalities under authority of a magistrate. A person not in the power of an ascendent but free from power, might be adopted by the form of adoption called arrogation. In such case the adopter formally consented that the one to be adopted should become his lawful son and the one to be adopted consented thereto. This change of relation was accomplished originally by the authority of the people assembled in the Comities, and later was established by an imperial rescript. Under either form the person adopted became, in early Roman law, subject to the patriapotestas which a Roman father possessed over his descendants. See Just. Inst. I, Tit. II; Code VIII, 48, 10.

The patria potestas which controlled the original meaning of Roman adoption does not exist in this State nor in any State organized on the principles of the English law. It is inconsistent with our fundamental social conditions. With us every man who has reached his majority is free from power. A father's power extends to his children, but not to his other descendants; and extends to his children only during the minority of each. The difference between a society like ours, based on the principle that each member on reaching his majority is his own master, a responsible unit, with control of each of his own children until and only until the child becomes of age, and a society based on the principle of the patria potestas, is organic. With us the legal rights and duties existing between parent and child exist only during the minority of the child; after that, the duties arising from the natural relation are not legal but moral; unless by force of statute some specific legal duty is created. Another peculiarity of the Roman law materially affecting the meaning and operation of Roman adoption, was the principle which recognized in children in the power of their father a quasi interest or ownership in his property during his life. Just. Inst. II, Tit. XIX, ¶ 3. And so the mere fact of adoption made the adopted person, thus subjected to the power of the adopted father, an heir of the patrimony and as such entitled to succeed to the inheritance in case of intestacy. Just. Inst. III, Tit. I, ¶¶ 1, 2. With us a child has no interest in his father's property, which in case of intestacy is taken possession of by the law and distributed among those related to the intestate by blood according to prescribed rules. The statutes, differing widely in their terms, which have been passed in recent years for the purpose of establishing between a minor and one not his parent, the legal obligations and duties attached to the natural relation of parent and child, as well as for conferring upon any person a capacity, more or less limited, of succeeding to the property of one not his parent, must be understood and applied in accordance with the terms of each statute in view of our own conditions, and their meaning and effect are not necessarily controlled by the analogies of a Roman adoption.

What the Wisconsin law was at the time of the decree in question is specially found by the Superior Court. This finding is not in accord with the fact; the Act of 1862 having apparently been inadvertently overlooked both by court and counsel. But, under General Statutes, § 697, all courts are to take judicial notice of the public statutes of the several States of the United States, as printed by authority, and it is therefore our duty to consider the statutes of Wisconsin as they really were. FourthNational Bank v. Franklyn, 120 U.S. 747, 7 Sup. Ct. Rep. 757.

Their provisions in 1863 were substantially as follows: Any inhabitant of the State could petition a county judge for leave to adopt a child not his own by birth (the petitioner and child residing in that county). Such petition must be accompanied or followed by a consent to the adoption: (1) of the parent of the child, if alive and a resident of the State of Wisconsin, or (2) if no parent be living, or, if the living parent is a nonresident of Wisconsin, of the child's legal guardian or next of kin in the State, or of some suitable person appointed by the judge to act as next friend of the child, and give or withhold such consent. These jurisdictional facts existing, the county judge is empowered to judicially find that the petitioner is able to bring up and educate the child, and that it is fit and proper that such adoption shall take effect, and upon finding these facts, is empowered to decree the adoption of such child, that is, that such child shall be deemed and taken, to all legal intents and purposes, as the child of the petitioner. The meaning and effect of the statutory adoption and decree is defined by the statute as follows: 1. As affecting the legal rights and duties of parent and child, the adopted child shall be deemed, for the purposes of custody of his person, of power to enforce obedience, and other legal consequences attached to the natural relation of parent and child, as a child of the adopting parent born in lawful wedlock; the natural parent of the child being, by such decree, deprived of all legal rights as respects such child, and the child being freed from all legal obligations as respects his natural parent. 2. As affecting the laws of inheritance and distribution and the capacity of the child to take property in pursuance of such laws, the adopted child shall be deemed and taken, for the purposes of inheritance and succession by him, to be the child of his adopting parent.

It is true, as claimed, that courts in applying statutes of this kind have held that the power to so adopt minor children is a creation of the statute unknown to the common law, that the statutory mode prescribed is the measure of the power, and that an adoption is invalid unless made in pursuance of the essential requirements of the statute. Matter of Thorne,155 N.Y. 140, 49 N.E. 661; In re Johnson, 98 Cal. 531, 33 P. 460;Shearer v. Weaver, 56 Iowa 578, 9 N.W. 907; Tyler v. Reynolds, 53 Iowa 146,4 N.W. 902; Long v. Hewitt, 44 Iowa 363; In re Humphrey, 137 Mass. 84; Inre Estate of McCormick, 108 Wis. 234, 84 N.W. 148; Furgeson v. Jones,17 Or. 204, 20 P. 842; Watts v. Dull, 184 Ill. 86, 56 N.E. 303; Taber v.Douglass, 101 Me. 363, 64 A. 653.

But the claim that this principle applies to the present case — that the record of the Wisconsin court shows upon its face that in the act of adoption the court did not follow the requirements of the statute and did that which by the Wisconsin law it was not empowered to do — is not sustained. The Wisconsin law, namely, chapter 49 of the Revision of 1858, with its second section amended by the Act of 1862, was in force scarcely two years when it was deemed by the legislature inadequate and was materially altered. Whether or not the alteration was made because the legislature deemed that law too arbitrary, it was the law when this decree was passed, and the decree is plainly within the jurisdiction conferred by the law.

A further claim is made, that notwithstanding the Wisconsin court acted within its jurisdiction, yet it appears that the parents of the adopted child were living at the time of the decree and that they had no notice by personal service or otherwise to appear and be heard, and therefore the decree is upon its face void by force of the settled principle that a personal judgment cannot be enforced against a defendant who neither appeared nor had legal notice to appear in the action. We do not think that this principle can be applied so as to render the decree, in so far as it affects the capacity of the infant to share in the distribution of the estate of this intestate, void upon its face. A father or parent has certain legal rights in respect to his children during minority. But these rights are not absolute rights, they may be forfeited by his own conduct, they may be modified or suspended against his will by action of the court, they may to a certain extent be transferred by agreement to another, but they cannot be destroyed as between himself and his child, except by force of statute. Johnson v.Terry, 34 Conn. 259, 263. If the parents of Elizabeth E. Burton had a right to contest the validity of this decree in so far as it deprived them of their legal parental rights, it does not follow necessarily that after those rights have terminated with the majority of their child, the decree giving to the infant a statutory capacity of inheritance from a stranger, made in pursuance of jurisdiction conferred and in the manner prescribed by statute, must be held void because the child's parents were not served with notice to appear and did not in fact appear and did not in fact consent to the action of the court. We are unable to affirm, upon the case as presented, that the decree of the Wisconsin court, authorized by statute and rendered in pursuance of the requirements of the statute, giving to Elizabeth E. Burton the defined statutory status as an adopted child of the intestate for the purposes of inheritance and succession, is void because the parents of the child might have successfully contested the validity of the decree in so far as it affected their legal rights as parents.

A still further claim is made that, on general principles of jurisprudence, the court in Wisconsin was without jurisdiction to change the status of Elizabeth E. Burton, because neither her domicil nor that of her natural parents was in that State.

The petition for her adoption stated that John O. Noxon and his wife were inhabitants of Wisconsin; that Elizabeth E. Burton was a child between two and three years of age, who had been brought into the State by her parents more than eight months before, and for the last preceding seven months had inhabited and resided in the family of the petitioner in Milwaukee; and that her parents had left the State more than six months previously and had not since resided therein, being at the date of the petition in parts unknown. Assuming, as we should, in support of the judgment, that these allegations were found true by the county judge, they fall short of showing that the child had gained for itself a Wisconsin domicil.

The State, however, may create the status of adoption in the case of an infant actually within its limits, and for that purpose it is only necessary that the petition of adoption should be brought by a domiciled inhabitant of the State in which it is preferred, when the child is within its territorial limits and in need of its protection, provided this protection can be reasonably afforded by transferring the child to the charge of him who seeks to assume toward it the responsibilities of a parent. Stearns v. Allen, 183 Mass. 404, 67 N.E. 349; Minor on Conflict of Laws, p. 222. Wisconsin had a statute authorizing such a proceeding, although its natural parents had no domicil there and the child had not for itself acquired a domicil. The effect of an adoption decreed under its provisions, as respects the natural parents, it is not necessary, for the purposes of this cause, to consider. SeeSchiltz v. Roenitz, 86 Wis. 31, 42, 56 N.W. 194, 21 L.R.A. 483.

There is nothing in the policy of this State, in reference to the relation of parent and child, which could interfere with our giving effect to the Wisconsin decree, as respects the rights of the petitioners for the adoption, after they transferred their domicil to Connecticut, or of those claiming under them. We have statutes of a similar nature, and fully recognize the status of an adopted child. Ross v. Ross,129 Mass. 243, 267. Those who have once legally made such an adoption cannot shake off the relation by a change of domicil. Whether the child adopted, on reaching full age, could reclaim its original domicil, is a question not raised by the facts before us.

To John O. Noxon, therefore, after his removal to this State, as well as while an inhabitant of Wisconsin, Elizabeth E. Burton, now Mrs. Potter, stood in the position of a child born in lawful wedlock.

It is therefore unnecessary to consider whether the court erred in thinking the principles of equitable estoppel might have justified the court in ordering distribution to Mrs. Potter, even if the record of the Wisconsin court were an absolute nullity. The record was valid; the court so found by its judgment; and a judgment cannot be set aside because the court in a finding for appeal may state an insufficient reason for a sound conclusion.

It was further contended that the Wisconsin statute only authorizes proceedings of adoption before a county judge, whereas the reasons of appeal filed in the Superior Court state, and the court has found thereon, that the proceedings under the statute took place in the County Court.

With respect to this claim it is enough to say that the record of these proceedings is made part of the finding, and that while the decree was entitled in and under the seal of the County Court, it was made on a petition addressed to the county judge, and is signed by him as such. It is to be presumed, after this lapse of time, that the county judge thus disposed of the cause in accordance with the law and practice of his State.

There is no error.

In this opinion the other judges concurred.