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In Re Estate of Wolfner

OCTOBER 15, 1963.

IN THE MATTER OF THE ESTATE OF VIOLET BIDWILL WOLFNER, DECEASED. WALTER H.S. WOLFNER, APPELLANT,

v.

CHARLES W. BIDWILL, JR., INDIVIDUALLY AND AS EXECUTOR OF THE LAST WILL AND TESTAMENT OF VIOLET BIDWILL WOLFNER, DECEASED, AND WILLIAM

v.

BIDWILL, APPELLEES.



Appeal from the Probate Court of Cook County; the Hon. ROBERT JEROME DUNNE, Judge, presiding. Orders affirmed.

MR. JUSTICE FRIEND DELIVERED THE OPINION OF THE COURT:

During their early married life, Charles W. Bidwill and his wife Violet adopted two sons, Charles W. Bidwill, Jr., in 1928, and William V. Bidwill in 1933. Charles W. Bidwill, Sr., died on April 19, 1947, and subsequently, on September 28, 1949, his widow married Walter H.S. Wolfner. She died on January 29, 1962, and by her last will and testament left the bulk of her estate to her two adopted sons. After the will was filed for probate in Cook County on February 6, 1962, Charles W. Bidwill, Jr., made proof of heirship, and testified that decedent was married twice, that of the first marriage two children were born, namely, the witness Charles W. Bidwill, Jr., and William V. Bidwill, both of whom, at the time of testimony, were of age and married, and that no children were born of the Wolfner marriage nor were any adopted. When Charles Bidwill, Jr., made proof of heirship, neither he nor his brother William knew that they had been adopted in infancy; this fact became known to them only shortly prior to the time Wolfner filed his petition attacking the adoption decrees. On February 26, 1962 the court entered an order adjudging that decedent left surviving Walter H.S. Wolfner, her husband, and Charles W. Bidwill, Jr., and William V. Bidwill, her sons, as her only heirs at law.

On March 28, 1962 Wolfner came into the Probate Court by petition to vacate the order declaring heirship, at the same time asking for the appointment of an administrator to collect. He averred in his petition that Charles and William Bidwill were not natural born children of decedent, and that the proceedings relating to their adoption were void because the County Court where the proceedings were had lacked jurisdiction of the subject matter. On April 24, 1962 the Probate Court found that the County Court of Cook County had jurisdiction over the subject matter in each of the adoption proceedings relating to Charles and William Bidwill, directed that the February 1962 order declaring heirship be amended to show that Charles and William Bidwill were the adopted, rather than the natural, sons of decedent, and denied Wolfner's petition to have those adoption proceedings declared void. On May 1, 1962, in accordance with the prayer of the petition filed by Charles Bidwill, Jr., the court ordered that Earl Fults, brother of the decedent, be permitted to testify as a witness in the proceeding to amend and supplement the February 1962 order declaring heirship; at the hearing it was stipulated that the evidence admitted at the hearings which culminated in the order of April 24, 1962 would be admitted and considered as part of the evidence in the supplemental proof of heirship. On May 2, 1962 the court entered its order finding that decedent died leaving Walter Wolfner, her husband, Charles W. Bidwill, Jr., her adopted son, and William V. Bidwill, her adopted son, as her only heirs at law.

Wolfner prosecutes this appeal from the orders entered April 24, May 1, and May 2, 1962. His attempt to set aside the adoption decrees is a collateral attack on his part against decrees entered approximately thirty years ago. He seeks to become the principal heir to the estate of the deceased, to the exclusion of her two adopted sons. The inquiry in the Probate Court was limited to the sole question whether the County Court, where the adoption proceedings were fully heard and the decrees entered, had jurisdiction of the subject matter.

The rule is well established in Illinois that an adoption decree rendered by a court having jurisdiction of adoption proceedings is not subject to collateral attack where the record shows substantial compliance with the essential provisions of the Adoption Act. 2 Am Jur2d Adoption § 68 (1962); Ashlock v. Ashlock, 360 Ill. 115, 195 N.E. 657 (1935); McConnell v. McConnell, 345 Ill. 70, 177 N.E. 692 (1931). In Carter Oil Co. v. Norman, 131 F.2d 451, 455 (1942), the court said:

"An adoption proceeding, it is true, is statutory, and jurisdiction of the subject matter and of the person is each a prerequisite to the validity of a decree of adoption, Hook v. Wright, 329 Ill. 299, 160 N.E. 579, and the record of the proceeding must show a substantial compliance with the statute to give the court jurisdiction in exercising the statutory powers conferred, yet, in the consideration of defendant's contention, it is well to remember that since the right of adoption is not only beneficial to those immediately concerned but likewise to the public, construction of the statute should not be narrow or technical nor compliance therewith examined with a judicial microscope in order that every slight defect may be magnified, — rather, the construction ought to be fair and reasonable, so as not to defeat the act or the beneficial results where all material provisions of the statute have been complied with. McConnell v. McConnell, 345 Ill. 70, 177 N.E. 692. Much more does this principle apply where the parties to the adoption proceedings are not objecting, the inquiry in such case being narrowed to the jurisdiction of the subject matter. Ashlock v. Ashlock, 360 Ill. 115, 195 N.E. 657."

The doctrine there enunciated has been declared to be the public policy of Illinois by the present adoption statute. The relevant provisions of section 20 (Ill Rev Stats 1961, c 4, § 9.1-20, as amended in 1959) state:

"This Act shall be liberally construed, and the rule that statutes in derogation of the common law must be strictly construed shall not apply to this Act.

"All defects in pleadings, either in form or substance, not objected to prior to the entry of final decree, shall be deemed to be waived."

[3-5] Specifically Wolfner challenges the petition in the Charles Bidwill, Jr., adoption solely on the ground that it did not state a statutory cause for adoption in that it failed to allege that the natural mother had consented to the adoption of her child. Consent was one of the statutory requirements for adoption under the 1927 statute (Ill Rev Stats 1927, c 4, § 2). However, Wolfner ignores the fact that the mother did consent to the adoption, that her consent was filed of record in the proceedings, and that the County Court found in its decree that she had consented to the adoption of her minor child by petitioners Charles and Violet Bidwill. Wolfner contends that the petition for adoption did not set forth the consent; but this contention is effectually answered by numerous court decisions holding that even if a jurisdictional fact is not alleged in the petition, nevertheless there is substantial compliance if that fact appears elsewhere in the record of the proceedings. Gebhardt v. Warren, 399 Ill. 196, 199, 77 N.E.2d 187 (1948); McConnell v. McConnell, 345 Ill. 70, 75, 177 N.E. 692 (1931); and In the Matter of Bohn, 308 Ill. 214, 222, 139 N.E. 64 (1923). Moreover, it was held in the Gebhardt case (pp 199, 203), as the established rule in this state, that the consent is properly considered a part of the petition.

Wolfner's collateral attack upon the written consents given by each of the natural mothers in the respective adoption proceedings of Charles and William Bidwill obviously challenges the jurisdiction of the County Court over the persons of the mothers. In the Gebhardt case the court held (p 202):

"In connection with this point, appellants advance arguments, based on the appearance and the consent, that the court did not have jurisdiction of the person of the mother. As we previously stated, since the parties to the adoption proceeding are not objecting, our inquiry is limited to the question whether the trial court had jurisdiction of the subject matter. . . ."

Petitioner argues that the consents appearing of record are invalid for ...


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