Minetree v. Minetree

McHaney, J. In April, 1906, Dr. James N. Minetree, then a resident of Manila, Chickasawba District, Mississippi County, Arkansas, attempted to' adopt appellant, then hearing’ the name of Ollie McCain, an infant under two years of ag’e, as his son and heir; the order of the probate court of said county and district being as follows: “Order eor AdoptioN oe Child. “Pursuant to requests of a certain petition made by Dr. James N. Minetree of Manila, Arkansas, and presented to< the court on the 24th day of April, 1906, asking for the adoption of the infant son of Mr. and Mrs. Luther E. McCain, as his own and lawful heir, by showing in said petition that the mother of said child is dead and (hat the father thereof' is a resident of Mississippi County, Arkansas, and that said child is possessed of no property whatever and by Luther E. McCain, father of said infant child appearing in open court on the 24th day of April, 1906, and giving his consent to this order of adoption, it is therefore ordered 'by me a judge of said probate court that said infant child be adopted agreeable (o the terms of above said petition and that its name be Ollie McCain Minetree, and that the care and custody of said infant child be given to petitioner, James N. Minetree. ’ ’ The petition mentioned in the order had been lost from the files and could not be introduced in evidence. Appellant was thereupon taken into the home of Dr. Minetree and appellee, who is his widow, with whom he thereafter continued to reside, and who treated him as a son, supported him, and attempted to educate him. Shortly after the above order of adoption was made, Dr. Minetree removed with his wife and appellant from thence to Dona Ana County, New Mexico, where they continued thereafter to reside, and where the appellee now resides. In June, 1923, Dr. Minetree died testate, his will having- been executed in November, 1919, leaving all his property to his wife, the appellee. It was duly probated in New Mexico and placed of record in Mississippi County, Arkansas. Appellant’s name was not mentioned in the will. He continued to live with the appellee, his adoptive mother, until the fall of 1928, when, believing himself entitled in law to the property of his adoptive father, subject to the widow’s right of dower, he demanded same, which was refused, and this suit followed. About 200 acres of land in Mississippi County are involved. The court found that the above order of adoption was and is void, and dismissed appellant’s complaint for want of equity. Was the learned chancellor correct in so holding? Sections 1 and 2 of the Act of February 25,1885, No. 28, p. 32, now ^ 252 and 253, 'C. & M. Digest, provide that (1) “any person desirous of adopting any child may file his petition therefor in the probate court, in the county where such child resides”; and (2) “such 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 living, and, if so, where they reside. Such petition shall be verified by the oath or affirmation of such petitioner.” The first case coming to this court after the adoption of the above statute was Morris v. Dooley, 59 Ark. 483, 28 S. W. 30, 31, 430. Neither the petition for, nor order of, adoption in that case showed the child to be a resident of the county (Phillips) at the time the petition was filed and the order made. The court said: “The proceeding to adopt a child as an heir was unknown to the common law, and in this State exists only as a special statutory proceeding. Prior to the passage of the act of February 25, 1885, authorizing such proceedings (Acts 1885, p. 32), the probate courts possessed no such powers, and could exercise no such jurisdiction, as it conferred. The .jurisdiction was conferred by a special statute. Mr. Black in his work on Judgments, says: ‘It is well settled that a judgment in a summary proceeding must show upon its face everything that is necessary to sustain the jurisdiction of the court rendering it. ’ Section 280. The rule seems to be, especially in this State, as settled by this court in Hindman v. O’Connor, 54 Ark. 643, 16 S. W. 1052, 13 L. R. A. 490, that ‘where the jurisdiction is conferred on a court by "special statute, and which is to be exercised in a special and often summary manner, the judgment can only be supported by a record which shows jurisdiction, and no presumptions as to its jurisdiction will be indulged.’ Harvey v. Tyler, 2 Wall. 328 (17 L. ed. 871); Galpin v. Page, 18 Wall. 371 (21 L. ed. 959); Gibney v. Crawford, 51 Ark. 35, 9 S. W. 309; Hindman v. O’Connor, 54 Ark. 643, 16 S. W. 1052, 13 L. R. A. 490; Black, Judgments 279; Freeman, Judgments 123; 12 Am. & Eng. Enc. Law, 276 et seq. “But it is contended that only those facts which the statute requires to be set out in the petition need to be made to appear in the record; but we hold, on the contrary, that in a proceeding oif this kind, under a special statute, and not according to the course of the common law, the court in which the proceeding is had quoad hoc must be considered as an inferior court, and that, unless all jurisdictional facts appear in the record itself, the judgment in the proceeding will be void upon collateral attack. In Henning v. Planters’ Ins. Co. (C. C.) 28 F. 440, the court said: ‘Nor can the want of such averment or showing be suprdied bv proof alkmde the record, offered at the trial of the subsequent suit, predicated on the alleged judgment. The defects of the record cannot be so pieced or patched up by parol.’ ‘Jurisdictional facts cannot rest in parol to be proved in one case, and perhaps disproved in another.’ Judge Cooley, in Montgomery v. Merrill, 36 Mich. 97. There is nothing in Railway Co. v. Lindsay, 55 Ark. 281, 18 S. W. 59, that militates against this doctrine. There it is held that the judgment of the justice of the peace could be supported by parol, as on appeal to the circuit court the cause was to be tried de novo; and the statement filed in lieu of the complaint was amendable in the circuit court, as well as in the magistrate’s court, and would be treated as amended to conform to the evidence, which had been heard without objection.” Mr. Justice Riddick wrote a very strong dissenting opinion in that case, which was concurred in by Mr. Chief Justice Bunn, but the majority opinion has been the law in this State since that time, and has been consistently followed by this court since. Willis v. Bell, 86 Ark. 473, 111 S. W. 808; Avery v. Avery, 160 Ark. 375, 255 S. W. 18; O’Connor v. Patton, 171 Ark. 626, 286 S. W. 822, 826. And, as further sustaining Morris v. Dooley, see St. Louis, I. M. & S. R. Co. v. Dudgeon, 64 Ark. 108, 40 S. W. 786; Ward v. Magness, 75 Ark. 12, 86 S. W. 822; Reeves v. Conger, 103 Ark. 446, 147 S. W. 438; Beakley v. Ford, 123 Ark. 383, 185 S. W. 796; Hart v. Wimberly, 173 Ark. 1083, 296 S. W. 39. (1) Appellant concedes that such is the law in this State, but insists that, since, at the time of the order of adoption, lie was an infant of tender years, and that the order shows his father to be a resident of Mississippi County, the fact of his residence is sufficiently shown on the face of the record, and that the order of adoption is valid. It will be noticed that the order does not state that the minor was at the time a resident of the Chick-asawba District of Mississippi County. It does state 1 ‘ that the mother of said child is dead and that the father thereof is a resident of Mississippi County, Arkansas.” Assuming without deciding that the finding in the order that the mother is dead and that the father is a resident of the county is sufficient to establish the residence of the child in the county on the general rule that the residence of the father is that of his minor child, still it is not sufficient to show that the residence of either the father or the child was in the Chickasawba District of that county. By act No. 81, Acts 1901, p. 136, Mississippi County was divided into two judicial districts, and the jurisdiction of the circuit, chancery, and probate courts of each district was defined. In § 14 of said act, it is said: ‘ ‘ That all matters of probate jurisdiction pertaining to that part of Mississippi County within the Chickasawba District and to persons and property resident and being therein shall be subject to the jurisdiction and examination of the probate court of Mississippi County for the Osceola District. ’ ’ The use of the word ‘ ‘ Osceola’ ’ in this connection is clearly a clerical error in copying or printing, as the whole context shows that the word “'Chickasaw-ba” was intended. Otherwise it would be meaningless. As regards probate jurisdiction, the two districts are the same as separate counties. Therefore, even though it be assumed that the residence of the child is that of its father, the order of adoption is fatally defective in failing to- affirmatively show on the face of the record that the father was at the time a resident of the Chickasawba District of Mississippi County, in the absence of a finding that the child was such a resident, because the jurisdiction of the court depended upon it. Appellant next says that, even though the adoption order be held void, appellee is estopped from asserting its invalidity. We cannot agree with appellant, as we are of the opinion this court has held to the contrary in Avery v. Avery, supra, and inferentially at least in the other adoption cases above cited. Here, as we have already shown, the order is void on its face for lack of jurisdiction of the court. It is the same as if no order of adoption had ever been made. A valid will was made by Dr. Minetree, which omitted to name appellant therein. All his property was given to appellee, and no course of conduct on the part of either toward appellant could e-stop appellee from claiming the property as sole beneficiary against a stranger in blood who claims under a void order of adoption. As said in O’Connor v. Patton, supra, “The right -of inheritance as such is conferred in our State upon a stranger in blood only by pursuing’ the special statutory proceeding for adoption”; and we think the statute should be strictly construed as against the adopted child, “because it is in derogation of the general law of inheritance, which is founded on natural relationship, and is a rule of succession according to nature which has prevailed from time immemorial.” 1 Cyc. p. 932. It is finally urged that there was an oral contract of adoption between the father of appellant and Dr. Mine-tree. ■Conceding this to be so, still appellant must fail. This exact point was decided against appellant in O’Connor v. Patton, supra, where we said: “'Conceding, without deciding, that an oral contract ¡for the adoption of a child and to give the same rights as a natural child, may be enforced after the death of the foster parent, this doctrine could not avail Louis E. Patton under the pleadings and proof in this case, because A. H. Patton disposed of all the property of which he was possessed by will which was .duly probated by .judgment of the probate court. £ * # * The mere contract to adopt is not sufficient of itself to make the child a legal heir of the promisor, because the right to take as heir exists only (by operation of law. The child takes in these cases by virtue of the contract and by way of damages or specific performance. An agreement to adopt does not prevent the person making the agreement from disposing by will of all his property to other persons than the child to be adopted; but an agreement, either express or implied, to give the adopted child a certain portion of the adoptive parent’s property, will be enforced.’ 1 C. J. p. 1377, § 21(b). Our statute providing that, where a person makes a will and omits to mention the name of a child, if living, etc., he shall be deemed to have died intestate, and the child whose name is omitted shall be entitled to a child’s portion of the estate, refers to natural children, or legally adopted children. The right of inheritance as such is conferred in our State upon a stranger in blood only by pursuing the special statutory proceeding for adoption. ’ ’ Having examined all grounds urged for a reversal and not finding- them well taken, the decree must be affirmed. It is so ordered.