There are no subjects upon which the conscience of the courts should be more tender than those relating to the custody, support, and adoption of infants. The human soul is capable of no sentiment *Page 118 more noble and unselfish than that of love for little children. With animals, the love of offspring is the instinct which preserves their species, and the human race would not survive without it. Certainly, humanity's progress towards civilization has been aided by this love, and the law here under review is a recognition of it, and, in my opinion, the law should not be whittled away by technical constructions. On the contrary, it should have the most liberal construction to effectuate its humanitarian and Christian purpose, and it is the general policy of the courts to so construe such statutes.
Indeed, as Mr. Justice RIDDICK points out in his dissenting opinion in the case of Morris v. Dooley, upon which case the majority rely, it has been doubted by some courts whether the heirs of an adult, who has procured an order adopting a child as his own, have any right to object that the prescribed procedure in procuring the order of adoption was not strictly followed.
It is not my purpose, however, to assault the opinion in the Dooley case. The dissenting opinion of Mr. Justice RIDDICK, in which Chief Justice BUNN concurred, does that to my satisfaction, but I do protest against its unnecessary extension, and, with due respect for the majority, I say that the doctrine of that case has been extended in the majority opinion.
The statute enumerates the recitals which the petition must contain, and the residence of the child is not one of these, yet the order in the Dooley case was held void for the sole reason that it did not recite that the child was a resident of the county in which the order of adoption was made. The order did recite that the parents of the child were dead, and there was therefore no presumption as to its place of residence, as the presumption which the law indulges that the residence of an infant is that of its parents could not be applied in that case, they being dead. But the order here held defective and void recites that the mother was dead, but that the father was a resident of Mississippi County and present in court, and *Page 119 does not the recital that the only living parent was a resident of Mississippi County carry irresistibly the implication that this two-year-old infant was also a resident of that county?
In the chapter on "Domicile," 9 R.C.L., 10, p. 547, it is said: "It is a general rule that an infant cannot of his own volition acquire a domicile. It is also a well-established rule that the domicile of every person at his birth is the domicile of the person on whom he is legally dependent, whether it is at the place of birth or elsewhere; and so the domicile of the father is in legal contemplation the domicile of his minor children. If the parents change their domicile, that of the minor necessarily follows it, though there is authority to the effect that in order to change the child's domicile the parents must act in good faith and with reference to the welfare of the child. The domicile of an infant, if legitimate, is that of the father, if living. On the death of the father, the domicile of a minor follows that of its mother during her widowhood; but the last domicile of an infant's deceased father fixes the legal residence of the infant in the absence of proof of the residence of the surviving mother. On the death of both parents the domicile last derived from the parents, or either of them, continues to be the domicile of the child until legally changed or until the child reaches his majority, when he has power to choose and acquire his own domicile." The following cases from this court sustain the text quoted: Grimmett v. Witherington,16 Ark. 377, 63 Am. Dec. 66; Johnston v. Turner,29 Ark. 280; Young v. Hiner, 72 Ark. 299, 79 S.W. 1062; Landreth v. Henson, 116 Ark. 361, 173 S.W. 427; Johnson v. Taylor, 140 Ark. 100, 215 S.W. 162; Taylor v. Collins,172 Ark. 541, 289 S.W. 466.
The attorney who was employed by Mrs. Minetree to procure and prepare the order of adoption testified that in the preparation of the order of adoption he had the statute before him, and that he thought he had prepared an order in exact conformity with the statute, and I submit *Page 120 that it is only by a technical and strained construction of the statute that the contrary can be held.
Other courts have not construed their adoption statutes so technically, but have sustained such proceedings where there has been a substantial compliance with the statute, upon the theory that the proceeding was for the benefit of infants, who, had no volition in the matter, and whose interest it was the duty of the courts to protect.
In ordinary proceedings of this kind, the child is not consulted, and it has no more control over the proceeding than it had over its own natural birth. Its destiny is in other hands. It is without volition. Surely, its future should not be trifled with, and the order of adoption fixes its future. The child loses its identity, its name; it becomes another person; it has another parent. Such a proceeding should not be declared void unless the letter of the law plainly demands.
In the case of Milligan v. McLaughlin, 94 Neb. 171,142 N.W. 675, 46 L.R.A. (N.S.) 1134, it was held by the Supreme Court of Nebraska (to quote the headnote): "While, under the provisions of 800 of the Code of Civil Procedure, a person desiring to adopt a child should file the petition for adoption in the county of his residence, and the county court of another county should refuse to receive and file the same, yet, the statute being enacted for the benefit of the child, in a case where the facts are that all the interested parties appeared before the county court of another county, and agreed on the one side to relinquish the child, and consented to its adoption on condition that it should have the full rights of heirship as if born in wedlock, and on the other to adopt and make it an heir, and the child is surrendered to the custody of, and remains in the family of, the adopting parent until the death of that parent, which occurred while the child was of tender years, the collateral heirs of the deceased adopting parent are estopped to deny the validity of the adoption proceedings and that the child is entitled to inherit." *Page 121
That may be an extreme case, and it is certainly unnecessary to go to the same length to uphold the order of adoption here under review. The case does show, however, the disposition of courts to uphold such orders whenever it is possible to do so.
The case of Kenning v. Reichel, 148 Minn. 433,182 N.W. 517, 518, 16 A.L.R. 1016, reviews many cases on the subject, and it was there said that "there need not be more than a substantial compliance with the requirements of the statute to sustain the validity of the proceeding;" and our case of Coleman v. Coleman, 81 Ark. 7, 98 S.W. 733, is one of the cases cited in support of that statement. In the annotator's note to this Kenning case, it is said: "Formerly, the courts were inclined to construe the adoption statutes strictly, since they were in derogation of the rights of the natural heirs at common law. No presumptions were indulged in favor of the jurisdiction of a court of limited powers, and, where the record failed to show a finding of fact required by the adoption statute, the defect was regarded as a jurisdictional one, available to the next of kin of the adoptive parent in a collateral proceeding. Morris v. Dooley (1894) 59 Ark. 483,28 S.W. 30, 430; Ferguson v. Jones (1888) 17 Or. 204, 3 L.R.A. 620, 11 Am. St. Rep. 808, 20 p. 842. Compare Coleman v. Coleman (1906) 81 Ark. 7, 98 S.W. 733, the holding of which is given infra. * * * The courts, however, have abandoned the view that the adoption statutes are to be construed strictly, as in derogation of common-law rights, since they are obviously not intended to supplement the rules of common law, but to make a complete change in the law. Consequently mere errors and irregularities in the decree of adoption, or in other parts of the record of the proceeding, are no longer considered to be jurisdictional defects, and a decree of adoption cannot be successfully attacked by a presumptive heir in a collateral proceeding, except on the ground that the court was without jurisdiction to render the decree." *Page 122
A large number of cases from many States are cited in support of the annotator's statement that adoption statutes are not to be strictly construed and that courts are abandoning the policy of so doing.
The opinion in the case of Avery v. Avery 160 Ark. 375,255 S.W. 18, would indicate that this court had come to that view, for it was there held (to quote a headnote) that, "where the record in adoption proceedings recites that the natural father of the child appeared in open court and petitioned for the child to be adopted by himself, and the mother, by affidavit filed in court, assented to the adoption, whereupon the order was made, a substantial compliance with Crawford Moses' Digest, 256, is shown." See, also White v. Dotter,73 Ark. 130, 83 S.W. 1052.
The case of Van Matre v. Sankey, 148 Ill. 536,36 N.E. 628, 23 L.R.A. 665, 39 Am. St. Rep. 196, which is itself a well-considered case, citing many authorities, is followed by an annotator's note, covering many pages, citing many cases to the effect that adoption proceedings should be liberally construed in favor of the adopted child. Indeed, many of the authorities, including the Van Matre case itself, are to the effect that "neither an adopting parent, nor his heirs or representatives after his death, can question the validity of the order of adoption of a minor child procured at his instance and with his consent."
The majority say they have not extended the Dooley case, but have only followed it; that the act dividing Mississippi County into two districts creates two probate courts, one for the Osceola District and the other for the Chickasawba District, and that these districts must be treated, for all probate court purposes, as separate counties, and that the adoption proceedings must therefore be had before the court having jurisdiction of the district of the county in which the child resides.
This reasoning, carried to its logical conclusion, would overrule the Dooley case. The whole theory of *Page 123 that case is that an adoption order is not a judgment of a court of superior jurisdiction, but is a special statutory proceeding, and it is the jurisdiction of a court which the statute creating Mississippi County parcels out to the two districts thereof.
One of the landmark cases in our jurisprudence is that of Borden v. State, 11 Ark. 519, 44 Am. Dec. 217. After there laying down the rule, which has since been consistently followed, declaring the presumption of verity to be indulged in favor of the judgments and decrees of superior courts, the learned judge who wrote that opinion said: "The remaining question before us in this case is whether or not the probate court is to be regarded as a superior court within the principles laid down. We answer emphatically that in our opinion it must be so considered. Because it is not only a court of record, but a constitutional court of fixed and permanent character invested with general jurisdiction and plenary powers over the matters committed by law to its peculiar cognizance and open to review by appeal. There is abundant authority thus to hold as to this court, and if there was not, it would be a matter of serious public concern. Because, while in point of law it is equal, in point of fact it is a more important court to the people of this State than the circuit court. And this will be manifest at once when it is considered that it only requires a period of about forty years to pass every atom of property in the State real and personal and many choses in action through the ordeal of the probate court; while it is estimated that the whole would not be passed through the circuit court in an entire century. We feel freely warranted therefore, not only on the score of authority, but for cogent reasons of public policy, to fix this court upon the footing of superior courts. (McPherson v. Cunliff) 11 Serg. Rawle (Pa.) 429 (14 Am. Dec. 642); (Kempe v. Kennedy) 5 Cranch. 173 (3 L.ed. 70); (Grignon v. Astor) 2 How. 340 (11 L.ed. 283); (Grant v. Raymond) 6 Pet. 220 (8 L.ed. 376)." *Page 124
If, therefore, an adoption order is a judgment to be rendered only by a court having jurisdiction as such of the territory apportioned to it, then it is the judgment of a superior court, for a probate court is a superior court, and its judgments are clothed with the presumption of regularity which renders them impervious to the collateral attack here made upon the judgment under review.
If, on the other hand, the order is merely a special proceeding had in the probate court, and the Dooley Case so holds, then the order contains all the recitals which the Dooley Case held were essential. The surviving parent was a resident of Mississippi County, and the adoption order so recites, and the statute, under the strictest construction, requires nothing more, and the Dooley Case required nothing more because the residence of the sole surviving parent is the residence of the child.
I am of the opinion, therefore, that the order of adoption here under review has been construed too strictly; that it is valid, and should be upheld.
I am authorized to say that Justices KIRBY and MEHAFFY concur in the views here expressed.