Ballard v. Ward , 89 Pa. 358 ( 1879 )

Chief Justice Sharswoojd

delivered the opinion of the court, March 24th 1879.

Adoption in the Roman law was an act by which a person undertook to rear the child of another, and appoint such child as his heir. The Eleventh Title of the first book of the Institutes of Justinian is “De Adoptionibus,” and the first placitum of that title declares that “ adoption is made two ways, either by imperial rescript or authority of the magistrate. The imperial rescript empowers us to adopt persons of either sex who are sui juris, and this species of adoption is called arrogation. But it is by the authority of the magistrate that we adopt persons actually under the power of their parents or grandparents.” Before the times of the empire, arrogation was authorized only by a vote of the people, and ordinary adoption by an edict of the praetor: Encycl. Univ. ad verbum.

It is evident that, even according to this system, some special authority of law was necessary to-constitute an adoption. So also by the Code Napoleon, it can only be effected by the intervention of the judge: Code Civil, liv. 1, tit. viii., see. 2. It never was in the power of an individual, by the common law of England or this state, to adopt the child of another as his own until the Act of Assembly of May 4th 1855, Pamph. L. 430, by the seventh section of which it was authorized by the decree of the Court of Common Pleas of the county where the person desirous of adopting such child may be resident. The plaintiff in error, Mrs. Ballard, was not adopted by Mr. Ward according to the provisions of this act. He died on the 14th May 1870, and the premises immediately descended to his two children, the defendants in error. An Act of Assembly was subsequently passed, April 2d 1872, Pamph. L. 31, which declared “ that in all cases heretofore, as well as hereafter, where the common-law form of adopting a child by deed has been practised or done, it shall he lawful, on proof of due execution of the deed, to have the same recorded in the proper office for the recording of deeds, in the county where the adopting parent resides at the date of its execution; and a duly certified copy thereof shall be received in evidence, with the same force and effect as the record of adoption "would have in the mode provided in the act to which this is a supplement.” This act was plainly intended to be retrospective, and whatever might have been its operation in giving effect to the instrument of August l'lth 1863, assuming that to have been “ the common-law form of adopting a child by deed,” it is too plain for argument that a proceeding under it could not divest the estate of the defendants in error, which had vested by the death of their father; Shonk v. Brown, 11 P. F. Smith 320.

As to the alleged parol gift by Mr. Ward to Mrs. Ballard, there Avas nothing to,take it out of the Statute of Frauds. Possession delivered or taken in pursuance of it was clearly insufficient under all the cases. Besides such possession, there must be improvements not capable of compensation in damages: Stewart v. Stewart, 3 Watts 253; Moore v. Small, 7 Harris 461; Miller v. Hartle, 3 P. F. Smith 108. The letter of Mr. Ward to Mr. Hoffman, dated August 25th, was no memorandum in Avriting of a gift, but merely declared that he had no objection to Mrs. Ballard’s taking possession at any time Apart from the parol evidence, it tended to prove nothing beyond its terms.

Judgment affirmed.