47 Pa. Super. 196 | Pa. Super. Ct. | 1911
Opinion by
The appellant claimed the entire personal estate of the decedent as an adopted child. This claim was based exclusively upon a writing, under seal, executed by her mother and her grandmother and the decedent, and his wife, in 1884. The instrument was not acknowledged. It begins with the words, “Whereas I, Alice Lewis,’.’ and after reciting the circumstances' and date of the birth of her child, proceeds as follows, “not feeling able to care for and maintain said female child as it should be, therefore she hereby agrees by and with the advice and consent of her widow mother, the grandmother of said infant, has given ..and by these presents doth give, and release all
While the adoption of children is a practice which was recognized by the civil law from its earliest date, it was unknown to the common law of England and exists in the states of the Union solely by virtue of statute: 1 Cyc. of Law and Procedure, 917. Numerous decisions from many states support this statement, and, amongst them, Ballard v. Ward, 89 Pa. 358, where Chief Justice Sharswood said: “It never was in the power of an individual, by the common law of England or this state, to adopt the child of another as his own until the Act of Assembly of May 4, 1855, P. L. 430, by the seventh section of which it was authorized by degree of the court of common pleas of the county where the person desirous of adopting such child may be resident.” That case was decided in 1879,
But without positively deciding the point, and granting that recording is not absolutely essential, we come to a consideration of the construction and effect of the instrument. Several cases outside of Pennsylvania are cited in the opinion of Judge Over, in Susman’s Est., 45 Pitts. Leg. Jr. 101, as sustaining the proposition that, although an alleged adoption be invalid because of noncompliance with statutory requirements, yet the attempted adoption may be given effect upon the death, intestate, of one of the adopting parents, .on the ground of a contract to leave his property to the child, where the contract has been performed by the latter by rendering the services due from a child to his parents. We need not express an opinion as to the principle upon which those cases were decided, for there is no evidence to bring this ease within it. Outside the instrument itself, the evidence is silent as to the situation of the parties at the time it was executed and as to their actual or ostensible relations to each other thereafter. It is clear, therefore, that, if there was not a legal adoption by virtue of that instrument, the appellant’s claim to the estate of the decedent must fail. The cardinal fact in the adoption of a child is the intent of the adopting parent: Peterson’s Est., 212 Pa. 453. Hence, the effect of the instrument in question is not to be determined alone by the language of the mother of the child, however broadly and unmistakably that may express an intent to surrender her rights. The words expressive of the intent of the other parties are in their primary sense promissory, and it needs no argument to show that a mere executory agreement to adopt, without
The decree is affirmed and the appeal dismissed at the costs of the appellant.