Page images
PDF
EPUB

Frederick A. Brown and Raymond S. without a valuable consideration. A replicaPruitt, both of Chicago, for appellants. Oliver & Mecartney and John S. Brown, all of Chicago, for appellee.

tion was filed to this answer and the cause
came on for a hearing. The complainants
offered evidence in regard to the physical and
mental condition of Borden about the time
when the decree of adoption was entered, to
which the defendant objected,
ground that the adoption decree is binding on
the parties and cannot be collaterally attack-

upon the

that ground. Thereupon, on motion of the defendant's solicitor, the court excluded all the evidence of the witnesses upon the ground that the testimony tended to impeach the decree of the county court in a collateral proceeding and dismissed the bill for want of equity, and the complainants appealed.

[1] It is manifest that if the decree of adoption is valid the complainants would have no right to the relief prayed for in the bill, because Lillian E. Davies would be the sole heir of James U. Borden, and the complainants would have no interest in his estate. It appears from the petition for adoption and the decree that the person proposed to be adopted was 30 years old. The appellants insist that under the statutes of this state the county court had no jurisdiction to enter a decree of adoption of an adult by another person.

The adoption of one person by another was unknown to the common law. The right of such adoption is entirely statutory in its origin. The first statute on the subject in this state was an act of the Legislature passed in 1867, entitled "An act to provide for the adoption of minors" (Laws 1867, p. 133),

DUNN, J. James U. Borden, a bachelor 95 years old, died intestate on July 11, 1914. A bill in equity was soon after filed by the appellants in the circuit court of Cook county against Lillian E. Davies, which was afterward amended joining a number of other de-ed, and the court sustained the objection on fendants. The amended bill alleged, in substance, that the complainants and the defendants, except Lillian E. Davies, are the heirs of James U. Borden; that he was of unsound mind continuously for the last 15 years of his life; that Lillian E. Johnston lived in his home for many years and by cunning devices obtained an ascendancy over his mind in his declining years, and for the purpose of securing his property brought about the filing of a petition by him in the county court of Cook county, on May 28, 1909, while he was of unsound mind, representing that he desired to adopt Lillian E. Johnston, "a female child of about the age of 30 years"; that an order of adoption was entered on such petition; that the said Lillian E. Johnston, in furtherance of her schemes to obtain his property, obtained from him, while he was insane, conveyances of property, both real and personal, to the value of $100,000, the exact amount, nature, and description being unknown to the complainants; and that she afterward married and is now known as Lillian E. Davies. The bill describes certain real estate alleged to have been obtained by Mrs. Davies from Borden without consideration while he was of unsound mind, and alleges that she holds the title to other pieces of property which she purchased with funds obtained from Borden while he was of unsound mind and without consideration; that because of Borden's insanity the order of adoption should be declared void and Mrs. Davies should be ordered to restore to the estate of Borden the property which she obtained from him, and prays that she shall be deemed to hold all of said property in trust for the heirs of Borden, and for a discovery of all the property and money which she obtained from him. Lillian E. Davies answered the bill, denying that the complainants and defendants, or any of them, are heirs of James U. Borden, but alleging that she is his only heir by virtue of the order of adoption; that the complainants knew of the adoption proceedings long before the death of Borden and acquiesced therein, and by reason of their delay and laches are not entitled to any relief against them. She denies that Borden was of unsound mind, admits that she lived at his home for many years and that she acquired the title to certain pieces of property described in the bill "Sec. 2. It shall be the privilege of the guardfrom Borden, and denies that the conveyancesuch 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 vices while Borden was of unsound mind or court, after hearing the same, shall determine, in

which is here set out:

"Section 1. Be it enacted by the people of the state of Illinois, represented in the General Assembly: That any person desirous of adopting a child, so as to render it capable of inheriting his or her estate, may present a petition to the circuit or county court of his or her residence, setting forth the name, age and sex of such child; and if such person desires the name changed, stating the new name, also the name of the father. or, if he be dead, or has abandoned his family, the mother, and if she be dead, the guardian, if any, and the consent of such father or mother to the act of adoption. And if the child has no father or mother, then the consent of no person shall be necessary to said adoption. It shall be the duty of the court, upon being satisfied of the truth of the facts stated in the petition, and of the fact that such father, mother or guardian has notice of such application, and being further satisfied that such adoption will be to the interest of the child, to make an order declaring said child to be the adopted child of her estate, and also what shall be the name such person, and capable of inheriting his or of such child; and thenceforward the relation between such person and the adopted child shall be, as to their legal rights and liabilities, the same as if the relation of parent and child existed between them, except that the adopted father or mother shall never inherit from the child shall stand related as if no such act of child; but to all other persons the adopted adoption had been taken.

next of kin in this state, if any, capable of giving consent, was required, unless the child was a foundling. There was also added in the revision the requirement that the court should be satisfied that the petitioner was of sufficient ability to bring up the child and fur

vision contained the provision that if the child was of the age of 14 years or upward the adoption should not be made without his consent, and the remaining provisions of the act concern the rights and obligations arising out of the new relation created by the adoption.

its discretion, whether or not the same consti- | 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." In the body of the act the word "minors" does not occur. It authorizes the adoption of a child, but it is manifest that the intention of the Legislature was to authorize the adoption of such children, only, as were minors. In 1874 the subject was revised and a chap-nish suitable nurture and education. The reter was inserted in the Revised Statutes under the title, "An act to revise the law in relation to the adoption of children." Rev. Stat. 1874, p. 128. This act was much fuller in de tail than that of 1867 (Laws 1867, p. 133), but there is no change in the language indicating an intention to extend the right of adoption 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 indito 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. The changes in the statute, so far as the act of adoption is concerned, refer to the procedure, which is fixed in greater detail, and the object seems to be to guard particularly the interest of the child to be adopted. If the petition for adoption was by a married person, the husband or wife was required to join in it and the adoption was required to be by them jointly. This was not required in the original act. The petition was required to state the names and residence of the parents of the child, if known, and of the guardian, if any, and whether the parents, or the survivor of them, or the guardian, consented to the application. All that was required in the act of 1867 in this particular was the name of the father, and the name of the mother only if the father were dead or had abandoned his family, and of the guardian, if any, if both were dead, and the consent of the father, or, in case of his death, of the mother. If the child had no father or mother, under the original act the consent of no person was required to the adoption; but in the revision, in case

enlarge, or restrict this intention, and counsel for the appellee do not attempt to point out any language which indicates such change of intention. It cannot be inferred from the mere change in the title. Such change cannot be held to indicate the clear intention on the part of the Legislature necessary to require a change of construction of the act. original construction is not inconsistent with the change of title.

The

There are, of course, two meanings which may be given to the word "child": One an offspring or a descendant, when a person is spoken of in relation to his parents; another, a person of immature years. A reference to the subject-matter and the context will ordinarily disclose the sense in which the word is used. The word "child," when used with reference to the parents, ordinarily has no reference to age, but to the relation. When used without reference to the parents, as indicating a particular individual, it usually bears the meaning of a young person of immature years. In view of the original legislation in regard to adop

tion, the language used, the conditions annexed in the original act, and subsequently added in the revision of the law, it seems apparent that the motive of the Legislature has been the care of minors who were deprived of the protection of parents, or whose parents and relatives were unable to give them the bringing up, nurture, and education which they required. The statute was again amended in 1907 (Laws 1907, p. 3), but the amendment in no way affects the construction of the statute in the respect which has been considered (Hurd's Stat. 1916, p. 34).

[2] It is insisted on behalf of the appellee that the order of the county court is not subject to collateral attack, and that the complainants were guilty of laches. Since the court had no jurisdiction to make any order on the petition, which showed on its face that the person proposed to be adopted was an adult, the order of the county court was void, and was not the foundation of any right. It was subject to attack by any person at any time. No one was required to pay any attention to it, and the doctrine of laches therefore does not apply. Neither do the cases apply which have been cited by the appellee from other jurisdictions. The language of the statutes construed by those decisions is different from our statute, and the construction given them is of no assistance in construing ours. In Sheffield v. Franklin, 151 Ala. 492, 44 South. 373, 12 L. R. A. (N. S.) 884, 125 Am. St. Rep. 37, 15 Ann. Cas. 90, it was held that an adult might be adopted. The statute (Code of Alabama, vol. 2, p. 1122) consisted of a single section, authorizing any person desirous of adopting a child, so as to make it capable of inheriting his estate, to do so by making and acknowledging a declaration of his intention, attested by two witnesses, which must be filed in the office of the probate judge and recorded on the minutes of his court. The court held that it was apparent that the intent of the section was to provide a means by which a person appoints as his heir the child of another. The statute has no other effect, imposes no obligations, and confers no other privileges. Under the statute of Missouri | an adult may be adopted by a deed duly executed and recorded. In re Estate of Moran, 151 Mo. 557, 52 S. W. 377. The adoption in that case was under a section of the statute which, as in Alabama, had for its object the provision of a means of appointing an heir, and authorized any one desiring to adopt a child as his heir to do so by deed executed, acknowledged, and recorded in the county of his residence, as in case of the conveyance of real estate. 1 Rev. Stat. Mo. § 1671. The statute gave the child adopted the rights and privileges as to the person executing the deed of a lawful child, but gave no rights to the person executing the deed. Other sections of the statute provide for the adoption of minor children, and of orphan children hav

bate court, and we have not been referred to any decision that an adult may be adopted under such provisions. A decision of the Texas Civil Court of Appeals has been cited to the effect that a person may adopt an adult as his legal heir. Mellville v. Wickham, 169 S. W. 1123. The Texas statute authorizes any person wishing to adopt another as his legal heir to do so. 1 McEachin's Texas Civil Stat. p. 79. In the case of Markover v. Krauss, 132 Ind. 294, 31 N. E. 1047, 17 L. R. A. 806, the Supreme Court of Indiana was considering an adoption proceeding which was had in Ohio. After the death of both adopting parents and the majority of the adopted child a transcript of the record was filed in Washington county, Ind., pursuant to a statute of the latter state which provided that upon such filing and entry upon the order book of the circuit court the adopted child should have the same rights as if the original adoption had occurred in Indiana. The court held that a compliance with the statute was in no sense a readoption, but simply enabled the adopted child to enforce such rights as arose out of the original adoption, and that it was not necessary that the record should be filed during the lifetime of the adoptive parents or during the minority of the adopted child. It is true that the court expressed the opinion in argument that the provisions of the statute of Indiana for the adoption of children in that state applied to adults equally with infants, but it made no such decision, for that statute was not before it. In Rhode Island, with a statute very similar to ours, the word "child" was held to apply to minors only, and jurisdiction was limited to the adoption of infants or minors. In re Moore, 14 R. I. 38.

[3] On the hearing it was admitted by counsel for the appellants that since the revision of 1874 it has been the practice in the county court and circuit court of Cook county to enter decrees of adoption, notwithstanding the persons to be adopted were more than 21 years of age, but that there is no record of any contest or objection having been made to any such petition for adoption. It is argued from this, on behalf of the appellee, that there has been a long-continued construction by inferior courts of the state which should be followed. It is true that a long-continued, uniform construction of a statute, where the meaning is doubtful, by trial courts throughout the state, will be recognized and should have consideration by an appellate court in determining the proper construction of the statute; but this case is not within that rule. In view of the history of the legislation in question, we do not regard the statute as of doubtful construction, and in such case the rule does not apply.

[4] The appellee contends that the decree should be affirmed because no competent evidence was introduced or offered to

SESSMENTS-PRELIMINARY PROCEEDINGS. provements and the engineer's estimate, with The resolution of the board of local imthe public hearing provided for by Local Improvement Act, 88, constitute the foundation for the passage of an ordinance and assessment liminary proceedings provided by the statute are to pay the cost of the improvement, and the prejurisdictional and essential to the passage of a valid ordinance.

[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. § 793; Dec. Dig. 296(2).]

3. MUNICIPAL CORPORATIONS

293(1)—IMPROVEMENTS-RESOLUTION OF BOARD OF LOCAL IMPROVEMENTS.

Under such statute, requiring resolution of ment must originate with the board, and it is the board of local improvements, the improvethe province of the board to determine the material and the nature, character, and kind of the improvement.

that the appellants introduced a witness, and | 2. MUNICIPAL CORPORATIONS 296(2)-Asafter showing his acquaintance with Borden asked him the question whether in his opinion Borden was sane or insane from 1900 until his death. The question was objected to as incompetent, irrelevant, and immaterial, and thereupon the counsel for the appellants stated that he offered to prove that beginning with the year 1900, and until his death, Borden was insane, unable to understand the ordinary business transactions of life, and was subject entirely to the will and domination of Mrs. Davies. The court sustained the objection, stating that he declined to receive this evidence, or any evidence of like character, on the ground that the decree of adoption of the county court could not be attacked in this collateral manner. This was a sufficient offer of proof. The question asked was not objected to on account of its form, but for immateriality. It was not immaterial, for the insanity of the grantor in the deeds was an essential element of the appellants' case. The appellants could not prove their whole case by the testimony of one witness or the answer to one question, and when the court sustained an objection to a material question and announced that no evidence of that character would be received, it was not necessary for the appellants, in order to preserve their rights, to call all their witnesses and interrogate each one of them.

[5] It is suggested that the appellants did not prove, or offer to prove, that Mrs. Davies knew Borden was insane. They could not prove that she knew he was insane if the court would not allow them to prove he was insane. They did show, and she admitted, that she had lived in his family a number of years, and if the appellants had been permitted to prove his insanity we cannot say that the chancellor would not have been justified, on the evidence, in finding that the appellee's relations with the testator were such that she must have known of it.

The decree of the circuit court will be reversed, and the cause remanded. Reversed and remanded.

[blocks in formation]

Corporations, Cent. Dig. § 773; Dec. Dig.
[Ed. Note.-For other cases, see Municipal
293(1).]

4. MUNICIPAL CORPORATIONS

296(2) — IMPROVEMENTS-ENGINEER'S ESTIMATE.

Under such statute, requiring both resolution of board of local improvements and estineer's estimate is to advise property owners of mate of the engineer, the purpose of the engithe probable cost of the improvement, and it should be itemized sufficiently to show, separately, the cost of the substantial component

elements.

[Ed. Note.-For other cases, see Municipal
Corporations, Cent. Dig. 8 793; Dec. Dig.
296(2).]

5. MUNICIPAL CORPORATIONS 296(2)-IM-
PROVEMENTS-ENGINEER'S ESTIMATE-RESO-
LUTION OF BOARD OF LOCAL IMPROVEMENTS.
Although it is not the province of an engi-
neer to determine the nature, character, or kind
of improvement, if the resolution of the board
of local improvements fails to furnish such in-
formation and the estimate of the engineer sup-
plies the omission and is adopted by the board
and made a part of the resolution, the end con-
templated by the statute is accomplished.
[Ed. Note.-For other cases, see Municipal
Corporations, Cent. Dig. § 793; Dec. Dig.
296(2).]

6. MUNICIPAL CORPORATIONS

296(2)-IMPROVEMENTS-RESOLUTION AND ESTIMATE. The resolution of the board of local improvements and the engineer's estimate are to be read together.

[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. § 793; Dec. Dig. 296(2).]

7. MUNICIPAL CORPORATIONS 296(2) — IMPROVEMENTS-ENGINEER'S ESTIMATE.

Unless the kind and character of the improvement with the material to be used are shown by the resolution, they must be shown by the engineer's estimate, and, in any event, such Re- estimate must be so specific as to give the property owner a general idea of the cost of the different elements of the improvement.

IM

The purpose of the public hearing provided for by Local Improvement Act (Hurd's Rev. St. 1915-16, c. 24, § 514) § 8, is to enable property owners to determine whether they will consent to or oppose the contemplated improvement, or any of the elements thereof, or propose modifications or changes therein.

[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. § 793; Dec. Dig. 296(2).]

8. MUNICIPAL CORPORATIONS 296(2)—IM- RESOLUTION ESTIMATE

PROVEMENTS

OF

COST. Under Local Improvement Act, where resolution 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 valve

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

ment.

[Ed. Note. For other cases, see Municipal Corporations, Cent. Dig. § 793; Dec. Dig. 296(2).]

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 [1, 2] The purpose of the public hearing which were estimated at $85 each, fourteen at $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 mentioned, or any size or depth of brick valve-based cost of each of the substantial component ins, might be supplied in making the improve- elements. The resolution and estimate, with the public hearing, constitute the foundation for the passage of an ordinance and an assessment to pay the cost of the improvement, 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. cago 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 detelson, 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 it gives to the property owners a general idea of the estimated cost of the substantial component parts of the improvement. In that case the court distinguished the engineer's estimate of cost from the resolution of the board of local improvements, but it was not held in that case or any other that the property owners are not entitled to be informed of the nature, character, and description of the proposed improvement. By the statute the improvement must originate with the board of local improvements, and it is the province of the board to determine the material and the nature, character, and kind of the improvement. The purpose of the engineer's estimate is to advise property owners of the probable cost of the improvement originated by the board of local improvements. It has no other purpose, and in the case cited

CARTWRIGHT, J. This is an appeal from the judgment of the county court of Cook county overruling objections and confirming an assessment to pay the cost of a cast-iron water supply pipe, with necessary castings, fire hydrants, and brick valve-basins, in the city of Chicago.

The appellant, whose lands were assessed, objected to the assessment on the ground that the nature, character, and description of the proposed improvement were not sufficiently described at the public hearing provided for by section 8 of the Local Improvement Act, to form a basis for an improve ment ordinance or an assessment. The resolution of the board of local improvements purporting to describe the proposed improvement, together with the estimate of cost by the engineer, made a part of the record of the resolution, were in evidence, and the particular objection was that the material and description of fire hydrants, connecting pipes, and gate valves were not stated and the dimensions of brick valve-basins were not specified. The estimate of the engineer contained these items: Nineteen four-inch double-nozzle fire hydrants and six-inch connecting pipes, four of which were estimated at $85 each, fourteen at $80 each and one at $75; five twelve-inch gate valves at $45 each; eight eight-inch gate valves at $25 each; two

the court said:

"It is no part of the estimating engineer's will be necessary for the improvement, but it duty to determine the character of material that is his business merely to estimate the cost of the improvement that is described in the resolution."

[4, 5] That is plainly true, because the purpose of the estimate is to advise property owners as to what the improvement will probably cost, itemizing it sufficiently to show, separately, the cost of the substantial component elements. Accordingly it was held, following

« PreviousContinue »