Waller v. Ellis

Offutt, J., delivered the opinion of the Court. Edna May Ellis, the person most vitally interested in this proceeding, is the daughter of Charles Ellis and Nora Waller Ellis, his wife. Her mother died in May, 1930, and her father in December, 1930. She was born June 6th, 1922, and lived with her parents at their home in Sussex county, Delaware, until she was taken by her father to the home of her mother’s parents, Isaac A. Waller and Lilly E. Waller, his wife, who died pending the suit, who lived in Wicomico county, Maryland, and she has been at that home since then.

At his death Charles Ellis left to survive him a brother Horace E. Ellis, a bachelor, now about sixty-two years of age, a brother Lee Ellis, now about sixty-five, and an unmarried sister, Mary Elizabeth, now about sixty-four, who lived together at the home of Horace. On September 5th, 1931, Horace filed in the Circuit Court for Wicomico County a petition in which, after setting out in substance these facts, he alleged: “That his said brother, Charles Ellis, prior to and at the time of his marriage, made his home with your petitioner and that upon the marriage on August 4, 1915, of his said brother to his said wife, your petitioner ejected for them, near his home and upon his said premises, where, from the time of their marriage until the death of his said ¹⁸ wife on May 12th, 1930, they continued to live, and it was here that Edna May was born and lived. * * * That Edna May Ellis, while her father and mother were living, was frequently in your petitioner’s company and around and with him, and that your petitioner has a fatherly interest in and attachment for her, and that it is his wish and desire to adopt her that she may have the same rights of inheritance and distribution as to his estate, and all other rights from him, as if his own child and as if born to him in lawful wedlock, and that his sister, Mary Elizabeth Ellis, who lives with him, would be pleased by the adoption of the said Edna May by your petitioner.’’ Upon those allegations he prayed that Edna May Ellis be declared to be his adopted daughter. Accompanying the petition was an affidavit made by acquaintances of the petitioner that he was a man of substance, highly respected, interested in the welfare of his community, and that the “best interests and welfare” of the child would be promoted by the adoption. The respondents Mr. and Mrs. Waller did not share the favorable opinion expressed by these affiants.

On the contrary, they alleged that Charles Ellis had paid in full or in part for his home and was entitled to a conveyance thereof from Horace, who had wrongfully refused it, and that Horace intended to defraud Edna May of her interest therein; that he is “a man without principle and without ordinary human kindness and sympathy and is not a fit person to have custody and control of the said Edna May Ellis, or any other child; that for many years he has cruelly mistreated and beaten members of his household, including his own brothers and sister; and his brother, the said Lee Ellis, is a feeble-minded person. * * * That the said Charles Ellis, after the death of his said wife on May 13th, 1930, and after he returned to live with his brother, the said Horace E. Ellis, became so despondent that he later became insane, and, although the said Horace E. Ellis knew of his brother’s serious condition, having heard him on several occasions threaten to ¹⁹ take his own life, nevertheless, the said Horace E. Ellis neglected to provide proper medical care and attention for the said Charles Ellis and the latter committed suicide by shooting himself on December 26th, 1930.” They further alleged that not only was Edna May Ellis entitled to an interest in the home place of her father, but that she also owned an undivided interest in the property occupied by Horace, and that he notwithstanding his professions of fatherly interest in and attachment for her was motivated by a “purpose of keeping” that property under his own control; that he refused to turn over to the respondents Edna’s clothing and playthings and had contributed nothing to her support after the death of her parents; and that “they are now the natural guardians of the said Edna May Ellis, who is of sufficient intelligence and capacity to give an understanding assent, and who has expressed her desire and intention to live with them and her intention not to return to live with the said Horace E. Ellis, and without the consent of your respondents, and of the said Edna May Ellis, your honors are without authority to grant the prayer of the petitioner of the said Horace E. Ellis.” Separate answers were filed by the guardians, and on these pleadings the case was at issue on October 10th, 1931. On August 27th, 1932, the petitioner applied for an order to take testimony orally before the court, and on that petition the case was set for testimony “as prayed” on August 31st, 1932. On the day set these witnesses were called and testified for the petitioner: Horace E. Ellis, L. Pratt Cooper, Mary Elizabeth Ellis, John S. Cooper, Joseph L. Phillips, E. Thomas Kenney, Mrs. Annie West Tomlinson, Mrs. Etta Dryden Baker. Their testimony, however, was never filed as a part of the proceedings, as required by Code, art. 16, sec. 278; nor is there anything in the record to show that it was even written down. ²⁰ In September, 1932, respondents filed a motion to dismiss the petition on the grounds: (1) That the petitioner was a nonresident; (2) that Isaac A. Waller had not approved the adoption or consented thereto; (3) that Edna May, a minor, was of sufficient intelligence and capacity to give an understanding assent, but had not given her consent and approval; and (4) that her guardians had not given their consent and approval.

No direct action on that petition was taken by the court, but the effect of the decree was to overrule it. On September 2nd, 1932, witnesses were called for the respondents, and their testimony, which is the only testimony found in the record, was filed in the case on November 16th, 1932. On November 30th, 1932, the respondents applied for leave to take further testimony, but .no action was taken on it until November 30th, 1934, when it was overruled, and on the same day a decree of adoption was signed. On January 22nd, 1935, the guardians of Edna, the permission of the court having first been obtained, and Isaac A. Waller, took this appeal.

The principal question submitted by the appeal is whether upon the evidence properly before it the trial court erred in decreeing that Edna May be declared to be the adopted child of Horace E. Ellis. In dealing with that question this court is not at liberty to consider the testimony of the petitioner’s witnesses because, if it was “written down as delivered by the witnesses” as the statute explicitly directs, it was not filed in the case, forms no part of the record, and is not before this court. Addison v. Bowie, 2 Bl. 584 ; 21 C. J. 553. It was incumbent upon the trial court to see that the petitioner complied with the statute, and if he failed or re- - fused to file a transcript of the testimony taken, under Code, art. 16, sec. 278 et seq., his petition should have been dismissed for failure to prosecute, just as though he had failed or refused to file any testimony at all in support of the petition.

He elected to proceed under that statute, he was bound to comply with its provisions, and ²¹ since he filed no testimony the case may be disposed of as on petition and answer, in which case the allegations of the answer may be taken as admitted. It is not necessary, however, to dispose of the case upon presumed admissions, for the evidence of the respondents which is in the case clearly shows the impropriety of the order of adoption. At the time the petition was filed, Edna was a little girl nine years old, living with her maternal grandparents, to whose custody she had been committed by her father after her mother’s death, and shortly before his own, and he took her there only after he had several times requested Mrs. Waller “to take her,” and after he had said that he “did not want her raised back there,” meaning apparently in Delaware. Mr. and Mrs. Waller were substantial and highly respected citizens of Wicomico County, who had been successful in so rearing their own children as to merit the approval of their neighbors, and since the child has been with them they have fed her, clothed her, provided for her attendance at school, and given her the care and attention which would be expected of careful and affectionate parents; she was satisfied to be with them; they were glad to have her, and wanted to keep her.

There was neither at that time nor later any apparent reason to disturb that arrangement. Such was the situation when the petition in this case' was filed. The petitioner lives in Providence, Sussex County, Delaware, and was then fifty-eight years old. He is unmarried and lives with an unmarried sister and a feeble-minded brother, then aged sixty and sixty-one, respectively.

The precise nature of the disorder from which Lee Ellis, the brother, suffers is not shown, but enough is shown to indicate that his presence was likely to add little that was helpful to the atmosphere of a home in which a child of such tender years was expected to live. ²² Jackson L. Reddish, when asked about him, gave this testimony: “Q. Do people in the community have any trouble with him? A, Yes, sir. Q. What trouble? A. Well, Miss Mary Angle who lives next to me he was botherin’ her a right smart and she had to call the sheriff.

Q. What kind of trouble? A. She is a widow lady and she was afraid of him. Q. Would you say he is a normal person or not ? A. I don’t think there is any harm in him in anyway.

He has kind of a peculiar way and she was afraid of him. * * * Q. Isn’t it a fact that up in that community where he lives that he is known to be without harm or malice toward anyone? A. He never done any harm that I know of. Q. As a matter of fact, he is generally regarded that way, isn’t he? A. Yes, sir.

Of course, you take a widow lady and no one to protect her it makes a right smart of difference. Q. I mean Mr. Reddish, as far as the people in that community are concerned? A. Take the widow Hearn. Q. Not dealing with any specific instances, but generally?

A. They rather he would not be