157 Ga. 528 | Ga. | 1924
Lead Opinion
(After stating the foregoing facts.) We are of the opinion that the court properly sustained the general demurrer. The foundation of the plaintiff’s right of action must be looked for in the allegations showing her adoption by R. T. Clark. The allegations in which the adoption claimed is attempted to be shown are to be found in paragraph 6 of the petition. This paragraph is as follows: "Your petitioner shows' that she was the adopted child of the said R. T. Clark, deceased, in that, being of tender years, not exceeding three, she was taken into the home of the said R. T. Clark and reared by him, adopting his name and marrying with his consent in the name of Clark at the age of fifteen. At various times and places and during the time your petitioner was living with the said R. T. Clark, deceased, the said Clark did represent, contract, and agree that in the event of his death she would be amply provided for; and the said R. T. Clark did represent at various times and places, not only to your petitioner but to various other individuals, that he had adopted your petitioner as his child, and it was generally known that the necessary legal papers had been taken out with reference to such adoption, and that petitioner was the adopted child of the said R. T. Clark.” No allegation in this paragraph can be treated as alleging a valid contract of adoption. In its entirety this paragraph merely shows that the plaintiff, when a child of three years of age, was taken into the home of Clark and reared by him. The plaintiff herself could scarcely have entered into a binding contract at that age. The paragraph taken as a whole cannot be treated as one alleging that Clark made a contract with this child three years old. The word “adopt” in some form is used several times in this paragraph. It is alleged that the child adopted the name of Clark, and married with Clark’s consent in that name, when she was fifteen years of age. It is also alleged that at various times
It follows from what we have said that the court did not err in sustaining the general demurrer to the petition.
Judgment affirmed.
Dissenting Opinion
dissenting. I think that the court erred in dismissing ‘the petition upon general demurrer. The subject of statutory adoption and the provisions contained in § 3016 of the Civil Code of 1910 have nothing to do with the question involved in this case; for the petition which was dismissed does not predicate the action upon that section of the Code, nor allege that there ever was a statutory adoption. The ruling in Crawford v. Wilson, 139 Ga. 654 (supra), was based, as I think this case should be decided, upon equitable rights, and in that ease,, as in this, a statutory adoption was neither alleged nor proved. An equitable remedy was established whereby the course of conduct pursued by one who took an infant into his care,- custody, and control completely changed the life of this infant and received the benefits flowing to a parent, such as companionship, obedience, affection and filial service, thereby inducing in the child a reasonable belief that he or she had in fact been adopted- “virtually,” even if not in compliance with the provisions of § 3016 of the Code; and that such a child has equitable rights, growing out of the relationship created by the proposing adopter, which equity and good conscience will not permit to be destroyed. To.prove a virtual adoption I do not think it is always necessary to show that a contract of adoption (in the strict legal meaning of that term) had been made with
Nothing decided by this court in Bell v. Elrod, 150 Ga. 709 (105 S. E. 241), is in conflict with my view of this case. It was properly held in that case that the petition was subject to general demurrer, because it was a suit to enforce an oral promise on the part of the decedent that he would adopt his illegitimate daughter. The question there thus presented is entirely different from the issue in this case, where facts are alleged which, though not disclosing a promise to legally adopt in accordance with § 3016 of the Civil Code, show that the decedent did virtually adopt the plaintiff as a matter of fact, thus changing the entire course of her life and receiving from her all the care and affection that a child could have rendered, and that obedience and respect which is a parent’s due. The principle of this case is the same, in my opinion, as that which controlled in Lansdell v. Lansdell, 144 Ga. 571, 573 (87 S. E. 782), where this court held “that the facts alleged gave to the child such an
If “virtual adoption” cannot be established except upon proof of a contract between the would-be adopter and some other person having the right to contract in behalf of the infant, then no matter how perfect a case might be made of such acts as evidence a virtual adoption by the establishment and continuance for no matter how long a time of a perfect relationship of parent and child, and no matter how great the service that might have been performed by an infant that never knew otherwise than that the ostensible parent was her parent in truth and in fact, — a virtual adoption could never be established if the would-be adopter neglected to pursue the plan of statutory adoption provided in § 3016 of the Code. One could never adopt a waif whose natural guardian or nearest of kin were not known, except by the statutory method; and the ignorance of such an one would in some cases defeat the most dearly cherished purpose of his lifetime. In Crawford v. Wilson, supra, a contract was not required, and the court defined a virtual adoption as follows: “A parol obligation by a person to adopt the child of another as his own, accompanied by a virtual though not a statutory adoption, and acted upon by all parties concerned for many years and during the obligor’s life, may be enforced in equity upon the death of the obligor, by decreeing the child entitled as a child to the property of the obligor, undisposed of by the will.” The principles upon which the decision in the Crawford case is based, were illustrated by Mr. Justice Evans as follows: “as, when a gentleman of wealth enters into an agreement with a poor man that the former will take the child of the latter, bring him up in affluence, and leave him certain property, and there is part performance, the child is entitled to have the agreement carried out, fhis right,’ says the author [Mr. Waterman], ‘being derived, not from the contract itself, but from what has been done under it, and the wrong he will otherwise sustain.’” Proceeding, Mr. Justice Evans said: “Where one takes an infant into his home upon a promise to adopt such as his own child, and the child performs all the duties growing out of the substituted relationship of parent and- child, rendering years of service, companionship, and obedience to the foster parent, upon the faith that
So if we construe the word “adopt” as a promise on the part of the decedent in this case that he would formally adopt the plaintiff in the manner provided by law, and even if the promise was made only to the child or in her hearing, and yet nevertheless, by reason of this promise, the domestic relation was changed as indicated by Mr. Justice Evans, the controlling reason inducing the decision in the Crawford case still remains and inheres in the case at bar. “The suit is in equity; and the changed domestic relation between the foster parent and foster child, together with the right of inheritance under the law, as a result of the changed parental relation, if formal adoption had been consummated under the contract, serves to bring this case within the exception recognized in Sheppard v. Bridges [137 Ga. 615 (74 S. E. 245)], supra.” The word “obligation,” in the definition which we have just quoted above, is by no means" synonymous with the word “contract.” An obligation may render a party morally or equitably subject to perform a certain act. Worth v. Daniel, 1 Ga. App. 15 (57 S. E. 898). A contract -is an agreement between two or more parties as to the doing or not doing of a certain specified act, and there must be parties able to contract, willing to contract, a subject-matter, and the meeting of the minds of the parties at the same time and in the same sense. The petition says .that he promised to adopt this child. It is inferable that the promise was made, to her. It is inferable that numerous witnesses heard the promise. If more definite information had been desired by the defendant as to whom the promise was made, this could have been reached by
I think the trial judge erred in sustaining the demurrer and dismissing the petition, and that his judgment should be reversed.