Gill v. Sullivan

55 Iowa 341

• Court: Supreme Court of Iowa
• Decided: December 16, 1880
• Status: Published

Opinion

Rothrook, J.

1. ADOPTION : ieamdiagoí : instrument. I. The instrument by which it is claimed the adoption was effected not having been completed, as required by chapter 7, title 15 of the Code, was 1 J ' ’ 0^ 110 validity. It is alleged that the written instrument was almost entirely destroyed by accident soon after it was executed, by reason of which it became impossible to make record of it. From this we infer that it was not even filed for record. The case, then, comes squarely within the rule of Tyler v. Reynolds, 53 Iowa, 146. We are content with the conclusion reached in that case, and need not further discuss the grounds upon which it is based.

II. Objection is made to the order of the court allowing Mark Maloney and Ann Welsh to appear as plaintiffs, and also to the decree as being indefinite. John H. Sullivan was not prejudiced by this action of the court. He was not entitied to any part of the real estate as an adopted child of the intestate. All he was entitled to when this ■ action was commenced was the- undivided one-third conveyed to him by Patrick Sullivan. Maria Sullivan having died intestate, without issue, her husband was entitled to one-half of her estate. Code, § 2455. This right was recognized in both petitions. But Patrick Sullivan put himself on record as disclaiming any interest in the property as against-said John H. Sullivan. Now, while the decree is not so explicit as it should be, neither of the defendants should be heard to complain, for, as we understand it, the brothers and sisters each are decreed one-sixth, and John H. Sullivan one-half of the property.

It is perhaps proper to say in conclusion that if the defendants desired to further contest the claims of the plaintiffs, upon the filing of the second petition they should have moved the court for a continuance, or in some manner sought an opportunity to resist the. claim made therein.

Affirmed.