Kennedy v. Borah

80 N.E. 767, 226 Ill. 243

• Court: Illinois Supreme Court
• Decided: February 21, 1907
• Status: Published

Opinion

Mr. Justice; Cartwright

delivered the opinion of the court:

Appellant, Henry B. Kennedy, filed his bill in this case in the circuit court of Wayne county against the mother, brothers, sisters, nephews and nieces of his deceased wife, Rebecca C. Kennedy, asking for partition of real estate of which his wife died seized and for the assignment of homestead and dower to him. The appellee, Margaret Borah, by her intervening petition became a defendant and answered the bill, and also filed a cross-bill alleging that she was the adopted child and heir-at-law of Rebecca C. Kennedy. The cross-bill was answered and replications were filed, and the cause was heard upon evidence taken before the master in chancery and oral testimony produced in court. The court found that the appellee was the adopted child of Rebecca C. Kennedy and her former husband, and heir-at-law of said Rebecca C. Kennedy, and that the title to the real estate descended to her as such heir, subject only to the homestead and dower rights of appellant.

The following facts were proven without any evidence to the contrary: Rebecca C. Kennedy was formerly the wife of Dr. W. S. Barriclcman. They lived at Jefferson-ville, in Wayne county, and had no children. They took the appellee, then Margaret McCollum, whose father and mother were dead, to live with them about the year 1859, when she was twelve or thirteen months old. They kept her from that time until she was sixteen years old. In the spring of 1868, when she was nine years old, they went with her to Fairfield, the county seat of Wayne county, and called upon a firm of lawyers to see about adopting her. A petition of .Dr. and Mrs. Barriclcman for the adoption of appellee was prepared, and the petitioners, with their attorney and appellee, went to the court house. The petition was presented to the judge of the county court and evidence was heard, and there was a proceeding before the court for the purpose of the adoption. After returning to their home in Jeffersonville they told their neighbors that they had adopted the appellee, and that statement was repeated many times to a great many different people, and they said that they had changed her name to Barriclcman. When appellee was sixteen years old she was sent for to visit her sister, who was-very ill and not expected to live. Mrs. Barrickman refused her permission and appellee went without it. Mrs. Barrickman was greatly offended, and when the appellee returned, about a week áfterward, she would not permit her to stay or. take her clothes. Appellee then went to live with her relatives and resumed her former name of Margaret McCollum. She was married at seventeen years of age, and there was never any further connection between her and the Barrickmans nor any of the usual incidents of the relation of parent and child. The records of Wayne county and the records and files of the county court were destroyed by fire in November, 1868. Both Dr. and Mrs. Barrickman stated at different times that they had not adopted the appellee, most of these statements being made after the separation. After that time Dr. Barrickman said that she was not adopted; that they had intended to adopt her but that she went off and left them. The Barrickmans lived at Jeffersonville until about twelve years ago, when they moved to Fairfield. Dr. Barrickman died December 11, 1901, and by his will gave the real estate in controversy and personal property, amounting to about $25,000, to his wife. On October 23, 1905, Mrs. Barrickman, who was then about sixty-nine years old, was married to the appellant, who was forty-one years of age. On December 1, 1905, she died intestate, and on the 13th of the same month appellant filed his bill in this case.

The jurisdiction of county courts to entertain a petition for the adoption of a child and to declare such child to be the adopted child of the petitioner and capable of inheriting his or her estate is a special statutory one unknown to the common law, and falls within the rule that nothing is presumed to be within the jurisdiction of the court which does not appear to be within the same. To establish her adoption it was necessary that appellee should prove that the petition therefor contained the necessary requisites to confer jurisdiction upon the court. (Watts v. Dull, 184 Ill. 86.) The files and records of the court having been destroyed by fire, it was necessary and competent to prove their contents by oral testimony, and the controversy in the case is whether the evidence produced is sufficient to show that the county court had jurisdiction to enter a decree of adoption, and whether such decree was in fact entered. v.

Counsel for appellant say that the oral evidence as to the contents of the files and records was not admissible because the appellee did not first prove that she,did not have a certified copy of the record, which would have been better evidence. Not saying that the objection would have been good if made in the circuit court, the argument is answered by saying that the objection was not made there. Oral evidence as to the contents of the files and records was taken before the master in chancery and no objection was interposed there, and when the depositions were offered on the hearing appellant merely objected to the reading of the evidence of each and every witness. The objection was of a nature to have been obviated by proof which could have been readily made, and no attention will be given to it here. It is to be remembered that thirty-eight years had elapsed after the fire and before the testimony was given, and the judge of the court had died. Under such circumstances the most exact proof could not have been expected and was not required. There must be a substantial compliance with the provisions of the statute conferring jurisdiction on the court, but the construction is not to be so narrow or technical as to defeat the intention of the legislature and thereby invalidate a proceeding where every material provision of the statute has been complied with; and a decree in such a case is not open to collateral attack on the ground that it is erroneous if the jurisdictional facts appear. Flannigan v. Howard, 200 Ill. 396.

The testimony produced was that of the attorney who conducted the proceedings, the clerk of the court and his deputy, and persons who were present in the court house when the proceedings took place. The attorney testified that about 1867 Dr. and Mrs. Barrickman came to the office of the firm of which he was a member, in Fairfield, to have the child bound or indentured to them, but concluded not to do so; that in the spring 'of 1868, after the passage of the Adoption law, they came again and had the proceeding instituted; that the petition asked for the adoption of the child; that it contained statements of the deaths of her parents; that petitioners had had the child since she was an infant; that Samuel McCollum, Jr., and his wife were her parents and that both were dead; that she had no guardian, and that it asked for a change of her name to Barrickman. He testified in a general way, also, that the petition contained everything required by the statute; that Dr. and Mrs. Barrickman and the child were present in court; that the deaths of the parents were proved by persons whom the witness named; that the decree of adoption was prepared in the office of his firm; that the prayer of the petition was granted by the court and the decree made. A witness who was clerk of the court at the time of the proceeding, testified that there was such a proceeding for the adoption of appellee; that Dr. and Mrs. Barrickman came into the office and had a little girl with them, a daughter of Samuel McCollum, who he should judge was about seven years old, and that a decree was rendered by the court and recorded by the witness. He said that the paper recorded was sworn to by Dr. and Mrs. Barrickman, and, so far as the decree was concerned, he must have been mistaken in that particular, but it is not improbable that the whole proceedings, including the sworn petition, were recorded. At any rate, there is no doubt that something in the form of a decree was entered. A witness testified that he called upon the clerk to learn about the adoption and the clerk found the decree in the record and read it to him. Another witness who was in the clerk’s office after the proceeding, testified that the clerk read over to him from the book where Margaret McCollum was adopted by the Barrickmans, and as he read it said that her name was Maggie McCollum and that she was adopted. These witnesses did not themselves read the decree and their testimony was not competent to prove its contents, but it did show that there was something of record which the clerk called a decree of adoption. The deputy of*the clerk testified that there was a proceeding in the court by Dr. and Mrs. Barrickman relative to the adoption of appellee; that the petition was granted by the judge, and that the clerk entered all the decrees of the court on the record, but he could not recollect the contents of that decree. A witness who was administrator of an estate and present in the county court when Dr. and Mrs. Barrickman were present with appellee, testified to their presence in the court; that the attorney who testified in the case had a bundle of papers in his hand, and the witness heard the judge say it was his first case of adoption and he would have to brighten up a little. There can be no doubt that the proceeding was instituted, the prayer of the petition granted and the decree entered, although there are some matters affecting, to some extent, the credibility of the principal witness. A large number of persons, testified that his reputation for truth and veracity was bad when he resided in Fairfield, thirteen years before he testified in this case. On the other hand, there were a number of witnesses who testified that his reputation was good. Fie was corroborated in eveiy instance when any other person could have known the fact, and in view of all the testimony pro and con as to his reputation we see no good reason for rejecting his testimony.

The statute under which the proceeding was had is the same one quoted at length in the case of Barnard v. Barnard, 119 Ill. 92. While in that case the rule of law as to presumptions of jurisdiction in a case of this kind was, perhaps, not accurately stated, the question involved was correctly decided. The objections to the jurisdiction of the court were, first, that the petition did not state that the county of McLean was the residence of the petitioner; and second, that the consent of the father of the child to the adoption was not shown, nor that he was dead, nor was his name given. The statute did not require that the petition should state that the petitioner was a resident of the county where the petition was presented, but only required that he should present the petition to the court of the county where he resided. It only required that the name of the father and the fact that he consented to the adoption should be stated, if he was alive and had not abandoned his child. If he was dead or had abandoned the child, it was only necessary to state the name of the mother and that she consented to the adoption. The petition in that case contained all that was required by the statute to confer the jurisdiction. This proceeding was under the same statute, which provided that any person desirous of adopting a child might present a petition to the circuit or county court of his or her residence, setting forth the name, age and sex of the child, and if such person desired the name changed, then the new name; also the name of the father, or if he should be dead or had abandoned his family, the mother, and if she was dead, the guardian, if any, and the consent of such father or mother to the act of adoption. The testimony in this case was clear that the petition contained all that was required by the statute, unless it be the age of appellee. The language of the attorney in his testimony is, that the petition stated that the petitioners had had this child since an infant and that the parents of the child were dead. The statement, if contained in the petition, would, of course, show that appellee was a minor and had not passed her childhood. The attorney testified, in general terms, that the petition contained everything that was required by the statute, and in view of the great lapse of time and the impossibility of accurate and definite recollection it would hardly be expected that a witness would remember the precise number of years mentioned in a petition as the age of a child. We think that a construction requiring a witness to remember the number of years mentioned as the age of appellee after a lapse of thirty-eight years would be too narrow and technical, and we regard the proof as sufficient to show that the court acquired jurisdiction.

Whether the facts proved justified the decree cannot be inquired into in this collateral proceeding. Dr. and Mrs. Barrickman told a great many people that they had adopted the appellee and changed her name to Barrickman, and they also afterward frequently stated that she had not been adopted. It is possible that they understood, in making the latter statements, that her going away and the separation operated in some way to vacate the proceeding, or that it was effective only so long as she remained with them as their adopted child. However that may be, we are convinced that she was the adopted child and the legal heir of Rebecca G. Kennedy.

The decree is affirmed.

Decree affirmed.