Long v. Hewitt

Rothrock, J. There are many allegations in the answer and cross-petition which are wholly immaterial and foreign to the question to be determined in this action. It may be a matter of concern to the parties that Jesse S.'Long, deceased, was the owner of a large quantity of land, and was president [366] of a National bank, that he left'a large fortune to be distributed among his heirs, but it has nothing'' whatever to do with the question as to whether the instrument in writing, relied on, should be enforced as a valid contract of adoption. It appears that the instrument in question is dated in March, 1874. This renders it cértain that the subject matter of an adoption was at least under consideration by the parties at that time. The acknowledgment was taken Oct. 24, 1874. Jesse S. Long died August 31, 1875, nearly eighteen mouths after taking the defendant into his family, and about that length of time after the date of the written instrument. This lapse of time .effectually rebuts the idea that the failure to sign the agreement was the result of accident. Accident in legal contemplation does not mean delay, or neglect in doing a given act. If Long, while in the act of signing the instrument, had been stricken with disease so as to disable him physically and mentally from completing .the execution, this might |be denominated accident in law. There certainly was no mistake. The preparation of the written instrument— prepared, as is alleged, by Long’s direction, shows that he knew what was necessary to be done to make it valid. There was no actual fraud, but defendant’s counsel claims that the non-execution of the instrument was a fraud on the rights of the child and its mother. The Code, sections 2307, 2308, 2309,'provides what is necessary to be done in order to make valid the adoption of a child so that it may inherit the same as if born in lawful wedlock. It is required that the instrument in writing be signed by the person adopting, and shall be acknowledged by all the parties thereto in the same manner as deeds affecting real estate, and shall be recorded in the county recorder’s office. l. power: execute. It is insisted that, as the intention existed to execute this instrument, a court of equity has the power to aid the defendant by doing that which was intended to be done by the parties, on the principle that courts of equity will aid the defective execution of a power. There is no doubt the defective execution of a power may be cured or aided by a court of equity in a proper case made; but the [367] difficulty in applying that rule to this case is, that this is not a defective execution of a power. There is an entire want of execution, defective or otherwise. The mere fact that the child was taken into Long’s family, and there lived a year and a-half and up to the time of his death, and that the mother signed an agreement for adoption, which Long promised to execute, but did not, is not the defective execution .of a power.' It is not even an attempt at execution, and the instrument, if signed, is not the.execution of a power. But, conceding that this is a defective execution. The statute provides what shall be necessary to be done in order to confer upon the child all the rights and privileges and responsibilities which would appertain to the child if born in lawful wedlock. Courts of equity cannot dispense with the regulations prescribed by a statute; for, otherwise, equity would in effect defeat the very policy of legislative enactments. Story’s Equity, sections 96, 170. We have not reviewed the authorities cited by counsel for appellant, for the reason that, in our judgment, the principles contained therein apply to another class of cases, and have no application to the case before us. If courts of equity should hold that an inquiry may be made as to what were the causes which prevented a compliance with the statute by the proper execution of an agreement for adoption, it would be a most dangerous doctrine, and would be in effect permitting that which the statute requires shall be in writing to be shown by parol; thus allowing estates to be distributed upon what might be shown by parol to have been the intention of the intestate. This is contrary to the whole policy of the law of descents and distribution. ■ As well might we hold that the non-execution of a will is a fraud upon some devisee named therein, because the deceased was stricken with death before he signed- it. The judgment of the Circuit Court is Affirmed.