95 N.W.2d 381
Supreme Court of Wisconsin.February 4, 1959 —
March 3, 1959.
Page 526
APPEAL from a judgment of the county court of Outagamie county: STANLEY A. STAIDL, Judge. Affirmed.
Peter A. Christl, a widower, died December 11, 1957, leaving property worth approximately $16,000. Five brothers and sisters and children of a deceased sister survived him. They are the appellants. There also survived
Page 527
Clifford A. Christl, the son of Peter Christl’s allegedly adopted son Clifford, who had died in 1947. Peter Christl had no other children.
The mother and guardian of Clifford A. Christl petitioned for letters of administration. Appellants objected, claiming to be the sole heirs of Peter Christl. They sought to show that the proceeding in 1920, through which Clifford was allegedly adopted, was void.
The county court found and concluded that the adoption proceeding was valid and that Clifford A. Christl was Peter’s sole heir. On June 2, 1958, the court entered judgment granting administration to Clifford’s mother and dismissing the objections of appellants.
In the records of the 1920 proceeding appears a petition of Peter Christl and Martha Christl, his wife. It is entitled, “In re adoption of an infant to be known as Clifford Christl.” The petition prays for adoption and was verified July 1, 1920. It alleges, “That the infant herein referred to was born on the 9th day of September, A.D. 1919, and is under the age of fourteen years and has no guardian; that said infant until three months prior to the date hereof, was in the custody of St. Mary’s Mothers and Infants Home at Green Bay, Wisconsin, which said institution is the legal guardian of said infant, and was permitted to and received by it with the consent and approval of the mother of said infant. That the parents of said infant are unknown to your petitioners.
“That said petitioners are desirous to adopt said infant as their child; that the authorities of St. Mary’s Hospital at Green Bay have consented to such adoption. That your petitioners are of sufficient ability to bring up and to furnish suitable nurture and education for said child, having reference to the degree and condition of its parents, and that they are ready and willing to furnish such care and
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education to the best of their ability in accordance with their means.”
There is indorsed upon the petition the following: “The undersigned former custodian of the infant described in the within petition hereby consent to the adoption prayed for in said petition.
“St. Mary’s Mothers and Infants Home, Green Bay, Wis. “July 6, 1920. By Sr. St. Colette, Secy.”
Beneath the signature appears an impression of the corporate seal of “St. Mary’s Mothers and Infants Home — Sisters of Misericorde — Green Bay, Wis.” There was filed at the same time a letter dated July 6, 1920, from an attorney at Green Bay to a firm at Appleton and reading in part as follows:
“Agreeable to your request of the 2d, I am herewith inclosing you petition for the adoption of the infant recently at St. Mary’s Mothers and Infants Home. For your information, would say there are two corporations: St. Mary’s Hospital, and St. Mary’s Mothers and Infants Home.
“We have changed the name and Sisters corporation in the body of the petition. It seems that they have no regular forms for this, and I trust the one that I have drawn at the foot of the petition will prove satisfactory.”
The record also contained a printed form, containing handwritten insertions, reading as follows: “I, the undersigned M _______ P _______ of my own free will and accord, declare by these presents, that, under my present circumstances, I am in the absolute and complete impossibility of taking care of and providing for the male Hermes [sic] child born to me at St. Mary’s Home in the city of Green Bay, Brown county, state of Wisconsin; and, that, for the welfare and benefits of the said child born at _______, on the 8th day of September, 1919; I give all rights and claim
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upon the said child and therefore authorize the Sisters of Misericords [sic] to dispose of the said child either by adoption or otherwise, binding myself never to trouble them or anybody else, in any way, and never to attempt to regain possession of such child.
“Given under my sign and seal at St. Mary’s Home in the aforesaid city of Green Bay, Wis., on the 30th day of October nineteen hundred and nineteen.
“Signature: M_______ P_______
“Witnesses: Sr. St. Colette Sr. St. Claudia
“St. Mary’s Home, Green Bay, Wis.”
This document also contains the name and seal of a notary public.
The record also contains an order of adoption dated July 24, 1920, in which the following recitations appear prior to the order decreeing adoption and the change of the name of the child to Clifford Christl: “Upon reading and filing the petition of Peter Christl and Martha Christl, his wife, from which it appears that the said Herman P_______ is a child of M _______ P_______, formerly of Brown [is achild of][*] county, Wisconsin, father unknown, [and][*] _______ [his wife, both of the county of][*] _______ [and State ofWisconsin][*] ; that said Herman P_______ is an infant under the age of fourteen years, and was born [years of age][*] on th 8th day of September A.D. 1919; that said Peter Christl
and Martha Christl desire to adopt said infant as their child; and said M______ P______, the said mother, [and][*] _______ [parent][*] of said child, having given her consent in writing to such adoption, and this court being satisfied of the identity and relations of the persons, and that said petitioners are of sufficient ability to bring, up, and furnish suitable nurture and education for said child, having reference to the degree and condition of its parents, and that it is proper that such
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adoption shall take effect; . . .” (Italicized words were inserted in typewriting. All other words were printed and some of the printed words were struck out by typewriter as indicated.)
An attorney for St. Mary’s Hospital and St. Mary’s Mothers and Infants Home of Green Bay testified that both are religious corporations; that the Home is the same corporation as was named in the adoption proceedings in 1920; that it was organized and licensed as a foundling home primarily for the care of and finding homes for children born out of wedlock and that it is operated by and in the hands of a religious community of Catholic sisters known as the Sisters of Misericorde.
For the appellants there was a brief by Benton, Bosser, Fulton, Menn Nehs of Appleton, and oral argument b David L. Fulton.
For the respondents there was a brief by Wilmer Surplice of Green Bay, and Thomas B. McKenzie of Appleton, guardian ad litem, and oral argument by Mr. Richard C. Surplice and Mr. McKenzie.
FAIRCHILD, J.
Appellants assert that the order of adoption is void because there was no consent by or notice to the natural parents. The sufficiency of the petition for adoption is not challenged.
The applicable statute was sec. 4022, Stats. 1919, entitled, “Adoption of child; consent, who to give; notice of hearing.” Appellants suggest that since there was no express finding in the order of adoption that the child was not born in lawful wedlock, we must test the proceeding by the portion of the statute which would apply in the case of a child of married parents. Obviously, there is nothing which would qualify as a consent on the part of the father; there is no finding
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that the father abandoned the child or was dead; there was no notice given to the father.
We deem it clear, however, that we need not assume that the child was legitimate. The court had before it a printed form of order for adoption which would be appropriate in the case of a legitimate child. Spaces were provided for inserting the names of the father and the mother, “his wife. ” These portions were struck out and the material inserted showed that the child was “a child of M_______ P_______ [a woman’s name] . . . father unknown.” The statute does not provide that the order of adoption must recite a finding of illegitimacy in any particular language. If it were not clear enough from the papers that the county court, upon sufficient evidence, considered the child illegitimate, resort could be had to sec. 253.21 Stats. 1957, providing as follows:
“When the validity of any order or judgment of a county court shall be drawn in question in any other action or proceeding everything necessary to have been done or proved to render the order or judgment valid, and which might have been proved by parol at the time of making the order or judgment and was not required to be recorded, shall, after twenty years from such time, be presumed to have been done or proved unless the contrary appears on the same record.”
The applicable portion of sec. 4022, Stats. 1919, was, “In case of a child not born in lawful wedlock such consent may be given by the mother, if she is living and has not abandoned such child; . . .” The consent of the father was not required. “The `consent of the parents’ so referred to is the consent of the mother, alone, when the child is illegitimate, for at common law such a child had no father known to the law, . . .” Adoption of Morrison (1954), 267 Wis. 625, 631, 66 N.W.2d 732.
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The attorneys for petitioners in 1920 evidently proceeded at first upon the theory that the document signed by the mother was an “assignment” of the child to the care and custody of a “home-finding corporation” and that the consent which was indorsed upon the petition by the corporation was sufficient. They doubtless had in mind sec. 58.02, Stats. 1919, entitled “Home-finding corporations” and providing in part as follows:
“(1) Any corporation organized for the purpose of seeking out and receiving orphans or homeless, abandoned, neglected, or grossly ill-treated children and of procuring homes in families for them may receive into its charge and under its control any neglected or dependent child, as defined in sec. 48.01 or any child assigned to its care and custody by an instrument in writing, executed by its parent or some person standing in place of such parent.
“(2) Every such corporation is hereby constituted the legal guardian of all children committed to or received by it; may consent to the adoption of any such child by any person in the same manner and with the same force and effect as such consent could be given by its parent; . . .”
The order of adoption, however, was drawn upon the theory that written consent by the mother was before the court. The document signed by the mother was dated some eight months before the petition and made no specific reference to adoption by the Christls. Appellants cite authority to the effect that a “blanket” consent is insufficient to confer jurisdiction. Anno. 24 A.L.R.2d 1138. In this case, however, the court had before it, in addition to the document signed by the mother, a specific consent by a corporation authorized by law to consent to adoptions. We can assume that the county court was satisfied that the relationship between the religious order and the corporation was such that an assignment of the child to the order was in fact an assignment to the corporation. Even if it were
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error for the county court to consider the documents before it as constituting a valid consent by the mother, we conclude that it would be error within jurisdiction and would not open the order of adoption based upon these documents to collateral attack. The petition for adoption being sufficient, the proceeding was not totally void as in Will of Bresnehan (1936), 221 Wis. 51, 265 N.W. 93.
Appellants point out that consent by the mother is sufficient if the mother “is living and has not abandoned such child.” An alternative theory of the events as disclosed by the record may be suggested as follows: The mother abandoned the child when she executed the written instrument in October, 1919. The same written instrument waived notice of any adoption proceedings to which the religious order might consent. The relationship of the unincorporated religious order and the corporate St. Mary’s Mothers and Infants Home may be presumed to have been established. The consent of the latter corporation was sufficient under sec. 58.02, Stats. 1919. While notice to a mother or to parents of a legitimate child would presumably be necessary if the child had been committed to the care of a home-finding corporation as a neglected or dependent child (Lacher v. Venus (1922), 177 Wis. 558, 568, 188 N.W. 613), there would be no occasion for such notice where an instrument such as the one before us executed by the mother has been made a part of the record.
We deem it unnecessary in this case to determine which of the theories is legally the more accurate. Under one of them at least, the record shows that the jurisdictional requirements of the statute in force in 1920 were met.
Under the circumstances it is not necessary to consider whether sec. 322.09, Stats. 1939, formerly in force, has any bearing upon this order of adoption. The point has not been raised by counsel. In Will of Bresnehan, supra, page
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66, it was held that sec. 322.09, as it then read, could not be applicable as a statute of limitations to attacks upon adoptions prior to July 1, 1927. By ch. 524, Laws of 1939, this section was amended and sub. (1) then read:
“(1) Failure to comply in adoption proceedings with the essential requirements of this chapter shall be ground for annulment of the order of adoption within two years after date of entry thereof. Except as provided in subsection (2), any order for adoption heretofore or hereafter made by a court of record of this state shall be valid and conclusive and binding on all persons whomsoever and in all proceedings whatsoever after two years from the date of entry thereof, and any person who participated in the proceedings or who makes claim to property rights by, through, or under any person who so participated, shall be estopped from attacking the validity of such adoption proceedings after said two years; provided, however, that where the adoption proceedings were had within two years prior to July 1, 1929, the two-year limitation period above set forth shall be construed to mean within two years from July 1, 1929, and where the adoption proceedings were had more than two years prior to July 1, 1929, the two-year limitation period above set forth shall be construed to mean within two years from and after July 1, 1940.”
The section was again changed by ch. 218, Laws of 1947, and thereafter sub. (1) read:
“(1) In adoption proceedings failure to comply with the essential requirements of this chapter shall be ground for annulment of the order of adoption within two years after date of entry thereof. Except as provided in subsection (2), an order for adoption made by a court of this state which had jurisdiction of the parties and of the subject matter shall be conclusive and binding on all persons and in all proceedings after two years from the date of entry thereof.”
The section was repealed by ch. 575, Laws of 1955.
If it be assumed that sec. 322.09 (1), Stats., in the form it had from 1939 to 1947 would have barred any attack
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after July 1, 1942, upon the order of adoption now before us, the question would then arise whether the change made in 1947 or the repeal in 1955 removed the bar.
By the Court. — Judgment affirmed.