Page images

Frederick A. Brown and Raymond S. without a valuable consideration. A replicaPruitt, both of Chicago, for appellants. Oli- tion was filed to this answer and the cause ver & Mecartney and John S. Brown, all of came on for a hearing. The complainants Chicago, for appellee.

offered evidence in regard to the physical and DUNN, J. James U. Borden, a bachelor 95 when the decree of adoption was entered, to

mental condition of Borden about the time years old, died intestate on July 11, 1914. A which the defendant objected, upon the bill in equity was soon after filed by the ap.ground that the adoption decree is binding on pellants in the circuit court of Cook county the parties and cannot be collaterally attackagainst Lillian E. Davies, which was after-ed, and the court sustained the objection on ward amended joining a number of other defendants. The amended bill alleged, in sub

that ground. Thereupon, on motion of the

defendant's solicitor, the court excluded all stance, that the complainants and the defendants, except Lillian E. Davies, are the heirs the evidence of the witnesses upon the ground of James U. Borden ; that he was of unsound that the testimony tended to impeach the demind continuously for the last 15 years of his cree of the county court in a collateral prolife; that Lillian E. Johnston lived in his ceeding and dismissed the bill for want of home for many years and by cunning devices equity, and the complainants appealed.

[1] It is manifest that if the decree of adopobtained an ascendancy over his mind in his declining years, and for the purpose of secur

tion is valid the complainants would have no ing his property brought about the filing of a

right to the relief prayed for in the bill, bepetition by him in the county court of Cook cause Lillian E. Davies would be the sole heir county, on May 28, 1909, while he was of un- of James U. Borden, and the complainants sound mind, representing that he desired to would have no interest in his estate. It apadopt Lillian E. Johnston, "a female child of pears from the petition for adoption and the about the age of 30 years”; that an order of decree that the person proposed to be adopted adoption was entered on such petition; that was 30 years old. The appellants insist that the said Lillian E. Johnston, in furtherance of under the statutes of this state the county her schemes to obtain his property, obtained court bad no jurisdiction to enter a decree from him, while he was insane, conveyances of adoption of an adult by another person.

The adoption of one person by another was of property, both real and personal, to the value of $100,000, the exact amount, nature, unknown to the common law. The right of

such adoption is entirely statutory in its oriand description being unknown to the complainants; and that she afterward married gin. The first statute on the subject in this and is now known as Lillian E. Davies. The state was an act of the Legislature passed in bill describes certain real estate alleged to 1867, entitled "An act to provide for the have been obtained by Mrs. Davies from Bor- adoption of minors” (Laws 1867, p. 133),

which is here set out: den without consideration while he was of unsound mind, and alleges that she holds the

"Section 1. Be it enacted by the people of the title to other pieces of property which she sembly: That any person desirous of adopting

state of Illinois, represented in the General Aspurchased with funds obtained from Borden a child, so as to render it capable of inheriting while he was of unsound mind and without his or her estate, may present a petition to the consideration; that because of Borden's in- circuit or county court of his or her residence,

setting forth the name, age and sex of such sanity the order of adoption should be de-child; and if such person desires the name clared void and Mrs. Davies should be order-changed, stating the new name, also the name of ed to restore to the estate of Borden the prop- his family, the mother, and if she be dead, the

the father, or, if he be dead, or has abandoned erty which she obtained from him, and prays guardian, if any, and the consent of such father that she shall be deemed to hold all of said or mother to the act of adoption. And if the property in trust for the heirs of Borden, and child has no father or mother, then the consent

of no person shall be necessary to said adoption. for a discovery of all the property and money It shall be the duty of the court, upon being which she obtained from him. Lillian E. satisfied of the truth of the facts stated in the Davies answered the bill, denying that the petition, and of the fact that such father, mother complainants and defendants, or any of them, being further satisfied that such adoption' will

or guardian has notice of such application, and are heirs of James U. Borden, but alleging be to the interest of the child, to make an order that she is his only heir by virtue of the order declaring said child to be the adopted child of of adoption; that the complainants knew of her estate, and also what shall be the name

such person, and capable of inheriting his or the adoption proceedings long before the of such child; and thenceforward the relation death of Borden and acquiesced therein, and between such person and the adopted child shall by reason of their delay and laches are not be, as to their legal rights and liabilities, the

same as if the relation of parent and child ex. entitled to any relief against them. She de- isted between them, except that the adopted nies that Borden was of unsound mind, ad- | father or mother shall never inherit from the mits that she lived at his home for many child'shall stand related as if no such act of

child; but to all other persons the adopted years and that she acquired the title to cer- adoption had been taken. tain pieces of property described in the bill "Sec. 2. It shall be the privilege of the guardfrom Borden, and denies that the conveyances such child, if there be no father or mother, to

ian, or any other person, related by blood to were procured by any arts or fraudulent de- file objections to such application; and the

its discretion, whether or not the same consti- 1 of the death of the parents the consent of the tute a good reason for refusing the application, guardian, or, if there were no guardian, the and if so, such application shall be refused.”

next of kin in this state, if any, capable of In the body of the act the word “minors" giving consent, was required, unless the child does not occur. It authorizes the adoption of was a foundling. There was also added in a child, but it is manifest that the intention the revision the requirement that the court of the Legislature was to authorize the adop- should be satisfied that the petitioner was of tion of such children, only, as were minors. sufficient ability to bring up the child and furIn 1874 the subject was revised and a chap-nish suitable nurture and education. The reter was inserted in the Revised Statutes un vision contained the provision that if the der the title, “An act to revise the law in re child was of the age of 14 years or upward lation to the adoption of children." Rev. Stat. the adoption should not be made without his 1874, p. 128. This act was much fuller in de consent, and the remaining provisions of the tail than that of 1867 (Laws 1867, p. 133), but act concern the rights and obligations arising there is no change in the language indicating out of the new relation created by the adopan intention to extend the right of adoption tion. to any children not included in the statute of

It cannot be inferred from any of the terms 1867. That statute gave to any person desir- of the revised act that the court intended to ous of adopting a child so as to render it capa. enlarge the meaning of the word "child" so as ble of inheriting his or her estate, the right to include an adult. All its provisions indi. to do so. The revised statute gave the right cate a child in a condition of tutelage, under to any resident of this state to adopt a child the care of parents or guardian or relatives, not his own, and there is no phrase or word or a foundling, and the requirement that the in the statute to indicate that the word "child"

petitioner for adoption should be of sufficient was used in any different sense from the ability to bring up the child and furnish suitsame word in the previous act. Section 2 of able nurture and education would only apply chapter 131 of the Revised Statutes provides to a child in the condition to require bringing that the provisions of any statute, so far as

up, nurture, and education. The language of they are the same as those of any prior stat- the statute is not hypothetical, but absolute. ute, shall be construed as a continuation of These provisions are not made to apply if the such prior provisions and not as a new enact- child is an infant or is under the care of its ment, and it is a well-settled rule of construc- parents or is in a condition of dependence, tion that in the revision of statutes neither an but purport to apply to every case of adoption. alteration in phraseology nor the omission or There is nothing in the language of the act addition of words in the later statute shall seeming to make it applicable to adults, unbe held necessarily to alter the construction less it is held that the word "child" itself of the former act, and the court shall only necessarily includes adults. It manifestly authorize the construction of a statute, when did not include adults in the original act. It revised, to be changed where the intention of is clearly apparent that the intention of the the Legislature to make such change is cleur Legislature in passing that act was to provide or the language used in the new act plainly for minors. Nowhere in the subsequent legisrequires such change of construction. Noth. lation is a purpose apparent to depart from, ing of the kind is found in the act of 1874. enlarge, or restrict this intention, and counsel The changes in the statute, so far as the act for the appellee do not attempt to point out of adoption is concerned, refer to the proce- any language which indicates such change of dure, which is fixed in greater detail, and the

intention. It cannot be inferred from the object seems to be to guard particularly the mere change in the title. Such change cannot interest of the child to be adopted. If the be held to indicate the clear intention on the petition for adoption was by a married per- part of the Legislature necessary to require son, the husband or wife was required to join a change of construction of the act. The in it and the adoption was required to be by original construction is not inconsistent with them jointly. This was not required in the the change of title. original act. The petition was required to

There are, of course, two meanings which state the names and residence of the parents may be given to the word "child": One an of the child, if known, and of the guardian, if offspring or a descendant, when a person is any, and whether the parents, or the survivor spoken of in relation to his parents; anof them, or the guardian, consented to the other, a person of immature years. A refapplication. All that was required in the act erence to the subject-matter and the context of 1867 in this particular was the name of the will ordinarily disclose the sense in which father, and the name of the mother only if the word is used. The word "child," when the father were dead or had abandoned his used with reference to the parents, ordi. family, and of the guardian, if any, if both narily has no reference to age, but to the were dead, and the consent of the father, or, relation. When used without reference to in case of his death, of the mother. If the the parents, as indicating a particular in. child had no father or mother, under the origi- dividual, it usually bears the meaning of a nál act the consent of no person was required young person of immature years. In view to the adoption; but in the revision, in case of the original legislation in regard to adop

tion, the language used, the conditions annes. , bate court, and we have not been referred to ed in the original act, and subsequently add any decision that an adult may be adopted ed in the revision of the law, it seems ap- under such provisions. A decision of the parent that the motive of the Legislature Texas Civil Court of Appeals has been cited has been the care of minors who were de to the effect that a person may adopt ad prived of the protection of parents, or whose adult as his legal heir. Mellville v. Wickparents and relatives were unable to give ham, 169 S. W. 1123. The Texas statute authem the bringing up, nurture, and education thorizes any person wishing to adopt another which they required. The statute was again as his legal heir to do so. 1 McEachin's amended in 1907 (Laws 1907, p. 3), but the Texas Civil Stat. p. 79. In the case of Marb. amendment in no way affects the construction over v. Krauss, 132 Ind. 294, 31 N. E. 1017, of the statute in the respect which has been 17 L. R. A. 806, the Supreme Court of Inconsidered (Hurd's Stat. 1916, p. 31).

diana was considering an adoption proceed. [2] It is insisted on behalf of the appelleeing which was had in Ohio. After the death that the order of the county court is not of both adopting parents and the majority subject to collateral attack, and that the of the adopted child a transcript of the reccomplainants were guilty of laches. Since ord was filed in Washington county, Ind., the court had no jurisdiction to make any pursuant to a statute of the latter state order on the petition, which showed on its which provided that upon such filing and face that the person proposed to be adopted entry upon the order book of the circuit was an adult, the order of the county court court the adopted child should have the was void, and was not the foundation of same rights as if the original adoption had any rigbt. It was subject to attack by any occurred in Indiana. The court held that person at any time. No one was required a compliance with the statute was in no to pay any attention to it, and the doctrine sense a readoption, but simply enabled the of laches therefore does not apply. Neither adopted child to enforce such rights as arose do the cases apply which have been cited by out of the original adoption, and that it was the appellee from other jurisdictions. The not necessary that the record should be filed language of the statutes construed by those during the lifetime of the adoptive parents decisions is different from our statute, and or during the minority of the adopted child. the construction given them is of no assist. It is true that the court expressed the opinance in construing ours. In Sheffield v. ion in argument that the provisions of the Franklin, 151 Ala. 492, 44 South. 373, 12 L. statute of Indiana for the adoption of chilR. A. (N. S.) 884, 125 Am. St. Rep. 37, 15 dren in that state applied to adults equally Ann. Cas. 90, it was held that an adult might with infants, but it made no such decision, be adopted. The statute (Code of Alabama, for that statute was not before it. In Rhode vol. 2, p. 1122) consisted of a single section, Island, with a statute very similar to ours, authorizing any person desirous of adopting the word "child” was held to apply to minors a child, so as to make it capable of inherit-only, and jurisdiction was limited to the ing his estate, to do so by making and ac- adoption of infants or minors. In re Moore, knowledging a declaration of his intention, :4 R. I. 38. attested by two witnesses, which must be [3] On the hearing it was admitted by filed in the office of the probate judge and counsel for the appellants that since the rerecorded on the minutes of his court. The vision of 1874 it has been the practice in court held that it was apparent that the in- the county court and circuit court of Cook tent of the section was to provide a means by county to enter decrees of adoption, notwithwhich a person appoints as his heir the child standing the persons to be adopted were of another. The statute has no other effect, more than 21 years of age, but that there is imposes no obligations, and confers no other no record of any contest or objection having privileges. Under the statute of Missouri been made to any such petition for adoption. an adult may be adopted by a deed duly ex- It is argued from this, on behalf of the apecuted and recorded. In re Estate of Moran, pellee, that there has been a long-continued 151 Mo. 557, 52 S. W. 377. The adoption in construction by inferior courts of the state that case was under a section of the statute which should be followed. It is true that a which, as in Alabama, had for its object the long-continued, uniform construction of a provision of a means of appointing an heir, statute, where the meaning is doubtful, by and authorized any one desiring to adopt trial courts throughout the state, will be a child as his heir to do so by deed executed, recognized and should have consideration by acknowledged, and recorded in the county an appellate court in determining the proper of his residence, as in case of the conveyance construction of the statute; but this case of real estate. 1 Rev. Stat. Mo. & 1671. The is not within that rule. In view of the his statute gave the child adopted the rights and tory of the legislation in question, we do not privileges as to the person executing the deed regard the statute as of doubtful construcof a lawful child, but gave no rights to the tion, and in such case the rule does not apply. person executing the deed. Other sections [4] The appellee contends that the de. of the statute provide for the adoption of cree should be affirmed because no compeminor children, and of orphan children hav- tent evidence was introduced or offered to

that the appellants introduced a witness, and | 2. MUNICIPAL_CORPORATIONS 296(2)-Asafter showing his acquaintance with Borden


The resolution of the board of local imasked him the question whether in his opinion Borden was sane or insane from 1900 the public hearing provided for by Local Im

provements and the engineer's estimate, with until his death. The question was objected provement Act, 88, constitute the foundation to as incompetent, irrelevant, and immaterial, for the passage of an ordinance and assessment and thereupon the counsel for the appellants liminary proceedings provided by the statute are

to pay the cost of the improvement, and the prestated that he offered to prove that beginning jurisdictional and essential to the passage of with the year 1900, and until his death, Bor- a valid ordinance. den was insane, unable to understand the or

[Ed. Note.-For other cases, see Municipal dinary business transactions of life, and was

Corporations, Cent. Dig. & 793; Dec. Dig.

296(2).] subject entirely to the will and domination

3. MUNICIPAL CORPORATIONS Om 293(1)-IMof Mrs. Davies. The court sustained the ob

PROVEMENTS-RESOLUTION OF BOARD OF LOjection, stating that he declined to receive CAL IMPROVEMENTS. this evidence, or any evidence of like char Under such statute, requiring resolution of acter, on the ground that the decree of adop- ment must originate with the board, and it is

the board of local improvements, the improvetion of the county court could not be attack the province of the board to determine the maed in this collateral manner. This was a terial and the nature, character, and kind of the sufficient offer of proof. The question asked improvement. was not objected to on account of its form, Corporations, Cent. Dig. $773Dec. Dig.

[Ed. Note.-For other cases, see Municipal but for immateriality. It was not imma

293(1).] terial, for the insanity of the grantor in the

4. MUNICIPAL CORPORATIONS Ow296(2) - IMdeeds was an essential element of the appel PROVEMENTS-ENGINEER'S ESTIMATE. lants' case. The appellants could not prove Under such statute, requiring both resolutheir whole case by the testimony of one tion of board of local improvements and estiwitness or the answer to one question, and neer's estimate is to advise property owners of

mate of the engineer, the purpose of the engiwhen the court sustained an objection to a the probable cost of the improvement, and it material question and announced that no should be itemized sufficiently to show, sepaevidence of that character would be received, rately, the cost of the substantial component

elements. it was not necessary for the appellants, in

[Ed. Note.-For other cases, see Municipal order to preserve their rights, to call all | Corporations, Cent. Dig. 8 793; Dec. Dig. their witnesses and interrogate each one of 296(2).] them.

5. MUNICIPAL CORPORATIONS Om 296(2)-IM[5] It is suggested that the appellants did


LUTION OF BOARD OF LOCAL IMPROVEMENTS. not prove, or offer to prove, that Mrs. Davies

Although it is not the province of an engiknew Borden was insane. They could not neer to determine the nature, character, or kind prore that she knew he was insane if the of improvement, if the resolution of the board court would not allow them to prove he was of local improvements fails to furnish such in

formation and the estimate of the engineer supinsane. They did show, and she admitted, plies the omission and is adopted by the board that she had lived in his family a number of and made a part of the resolution, the end conyears, and if the appellants had been per- templated by the statute is accomplished. mitted to prove his insanity we cannot say [Ed. Note.-For other cases, see Municipal that the chancellor would not have been jus Corporations, Cent. Dig. $ 793 ; Dec. Dig.

296(2).] tified, on the evidence, in finding that the appellee's relations with the testator were


PROVEMENTS-RESOLUTION AND ESTIMATE. such that she must have known of it.

The resolution of the board of local improveThe decree of the circuit court will be re ments and the engineer's estimate are to be versed, and the cause remanded.

read together. Reversed and remanded.

[Ed. Note. For other cases, see Municipal Corporations, Cent. Dig. § 793; Dec. Dig. em

296(2).) DUNCAN, J., dissents.



Unless the kind and character of the imCITY OF CHICAGO V. HULEATT. provement with the material to be used are (No. 11013.)

shown by the resolution, they must be shown by

the engineer's estimate, and, in any event, such (Supreme Court of Illinois. Dec. 21, 1916. Re- estimate must be so specific as to give the prophearing Denied Feb. 9, 1917.)

erty owner a general idea of the cost of the dif


[Ed. Note.-For other cases, see Municipal The purpose of the public hearing provided Corporations, Cent. Dig. § 793; Dec. Dig. for by Local Improvement Act (Hurd's Rev. St.

296(2).] 1915-16, c. 24, § 514) § 8, is to enable proper- 8. MUNICIPAL CORPORATIONS O 296(2)-IMty owners to determine whether they will con PROVEMENTS -RESOLUTION ESTIMATE sent to or oppose the contemplated improvement, Cost. or any of the elements thereof, or propose modi Under Local Improvement Act, where resofications or changes therein.

lution of board of local improvements called [Ed. Note.-For other cases, see Municipal for the construction of "a cast-iron water supCorporations, Cent. Dig. $ 799; Dec. Dig. ply pipe with all necessary special castings and 298.)

with fire hydrants, valves and brick valveFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


basins," in a system of streets designated, six-inch gate valves at $25 each; and fifteen "the estimate of cost of said improvement as brick valve-basins, complete, at $35 each. made by the engineer of the board being $12; There was no further description, and prices 506," which resolution was followed by an estimate of cost by the engineer containing these were different where there was no difference items: Nineteen four-inch double-nozzle fire hy in description. drants and six-inch connecting pipes, four of which were estimated at $85 each, fourteen at

[1, 2] The purpose of the public hearing $80 each and one at $75 ; five twelve-inch gate provided for by the statute is to enable propvalves at $45 each; eight eight-inch gate valves erty owners to determine whether they will at $25 each; two six-inch gate valves at $25 consent to or oppose the contemplated imeach; and fifteen brick valve-basins, complete, at $35 each-but there was no further

descrip: provement, or any of the elements thereof, tion to supply the property owners the informa- or propose modifications or changes therein. tion required by the statute, the resolution and in order that property owners may form a estimate were insufficient, since the prices were judgment and act intelligently, it is essential different where there was no difference in description, and under the resolution and estimate tak- that they be advised of the character and en together any kind of four-inch double-nozzle kind of the improvement and the materials valves with any kind of six-inch connecting that will enter into it, as well as the estimatpipes or any kind of gate valve of the size men led cost of each of the substantial component tioned, or any size or depth of brick valve-basins, might be supplied in making the improve elements. The resolution and estimate, with ment.

the public hearing, constitute the foundation [Ed. Note.- For other cases, see Municipal for the passage of an ordinance and an asCorporations, Cent. Dig. 8 793; Dec. Dig.

sessment to pay the cost of the improvement, 296(2).)

and the preliminary proceedings required by Appeal from Cook County Court; John H. the statute are jurisdictional and essential to Williams, Judge.

the passage of a valid ordinance. City of Assessment proceedings by the City of Chi. Chicago Heights v. Angus, 267 Ill. 628, 108 N. c'ago in which Hugh Huleatt interposed ob- E. 758. There has been no deviation in the jections. From judgment for the City, the decisions from these propositions, but there objector appeals. Reversed and remanded. seems to be some confusion in regard to the

Wentworth, Cavender & Kaiser, of Chica- question where and how the particulars rego (Daniel S. Wentworth, of Chicago, of quired for the information of property owncounsel), for appellant. Harry F. Atwood, ers must appear. William E. Mason, Otto W, Ulrich, and Har [3] The view of counsel for the appellee is ry F. Hamlin, all of Chicago (Samuel A. Et- that the estimate was sufficient under the de telson, Corp. Counsel, of Chicago, of counsel), cision in City of Chicago v. Underwood, 258 for appellee.

Ill. 116, 101 N. E. 261, where it was held that

the estimate of cost is sufficiently specific if CARTWRIGHT, J. This is an appeal

it gives to the property owners a general idea from the judgment of the county court of of the estimated cost of the substantial comCook county overruling objections and con- ponent parts of the improvement. In that firming an assessment to pay the cost of a

case the court distinguished the engineer's cast-iron water supply pipe, with necessary estimate of cost from the resolution of the castings, fire hydrants, and brick valve-ba- board of local improvements, but it was not sins, in the city of Chicago.

held in that case or any other that the propThe appellant, whose lands were assessed, erty owners are not entitled to be informed objected to the assessment on the ground of the nature, character, and description of that the nature, character, and description of the proposed improvement. By the statute the proposed improvement were not suffi. the improvement must originate with the ciently described at the public hearing pro- board of local improvements, and it is the vided for by section 8 of the Local Improve province of the board to determine the mament Act, to form a basis for an improve terial and the nature, character, and kind of ment ordinance or an assessment. The reso

the provement. The purpose of the engi. lution of the board of local improvements neer's estimate is to advise property owners purporting to describe the proposed improve of the probable cost of the improvement origment, together with the estimate of cost by inated by the board of local improvements. the engineer, made a part of the record of It has no other purpose, and in the case cited the resolution, were in evidence, and the par

the court said: ticular objection was that the material and "It is no part of the estimating engineer's description of fire hydrants, connecting pipes, will be necessary for the improvement, but it

duty to determine the character of material that and gate valves were not stated and the di- is his business merely to estimate the cost of mensions of brick valve-basins were not spec- the improvement that is described in the resoluified. The estimate of the engineer contained tion.” these items: Nineteen four-inch double-noz [4, 5] That is plainly true, because the purzle fire hydrants and six-inch connecting pose of the estimate is to advise property ownpipes, four of which were estimated at $85 ers as to what the improvement will probably each, fourteen at $80 each and one at $75; cost, itemizing it sufficiently to show, separfive twelve-inch gate valves at $45 each ; ately, the cost of the substantial component

« PreviousContinue »