121 Tenn. 330 | Tenn. | 1908
delivered the opinion of the Court.
The hill in this cause was filed by the complainants, Hugh S. Starnes and his sister, Esta Rosa Newsom, praying for specific performance of a contract, which they alleged was made by Samuel W. Starnes, the intestate of the defendant Henry Hatcher, and the ancestor of certain of his codefendants, by which the deceased obligated himself to adopt these two complainants, and at his death leave to them his estate, both real and personal. The bill was dismissed on demurrer, and the case is before us on assignment of error to this action of the chancellor.
Under and by virtue of the terms of this agreement, the complainants were taken into the home of Mr. Starnes and given his name. He clothed, sheltered, and educated them. They were taught for years to consider and to feel that Mr. Starnes and his wife were their real parents.. Both of these parties were deeply attached to the complainants, and exhibited their love in many ways. This affection was reciprocated by the complainants, who continued to render to their foster parents all the services that duty ¡required or affection suggested. When the complainant Mrs. Newsom grew into womanhood, and she was sought in marriage by her present husband, he solicited her hand from Mr.
After his death it was ascertained that adoption proceedings were never instituted by the deceased, or, if so, were never perfected, and the result is that the defendants, related to him collaterally, and who were at no time attentive to or thoughtful of his welfare, have made claim to his estate, and have taken possession of all of it that is not in the hands of the administrator, and are now insisting that the complainants' have no right to share in or receive anything from the same. The question, then, is: Upon these facts, are the complainants entitled to a specific performance of the contract alleged?
It is insisted by the demurrants that redress cannot be given, even conceding the existence of such an obligation, because the case is one within the statute of frauds, and is not embodied in writing as required therein. This insistence, however, grows out of a misapprehension of the allegations of the hill on this point. After setting up the agreement between Judge Ferriss and Mr. Starnes, at the time the complainants were delivered into tbe possesion of Mr. Starnes, the bill proceeds as follows: “Said verbal contract was then reduced to writing, which was read over to the said Starnes, fully understood and agreed to by him, and to which he attached his name; the same being embodied in a petition to the county court asking that
The contention of the demurrants is that in the paragraph just quoted the complainants do no more than allege an oral agreement, put into writing in the form of a petition to the county court, asking that Starnes and his wife be permitted to adopt the complainants, and that, this being so, the agreement, in view of the statute of frauds, if for no other reason, is not enforceable. We think this a mistaken view. We understand, from the allegations just quoted that the contract, in the beginning verbal, was reduced to writing, which, when read over to Mr. Starnes, was fully understood by him, and that to this he attached his name. This writing not only embraced the terms of the contract set forth, but these were contemporaneously embodied in the petition to the county court, asking permission
But, if it Avere true, as urged by the demurrants, that the agreement was to be found alone in the petition prepared for and signed by Starnes, to be submitted to the county court for the purpose of obtaining its permission to the act of adoption of these parties, and that petition given into the hands of the petitioner with the view of carrying out that plan, it might be argued with much force, and possibly be found sustained by authority, that even that writing itself would be a sufficient compliance with the requirement of the statute of frauds. This, however, is simply suggested, because we do not regard the question, in the view which we take and have expressed with regard to the averments of the bill, as necessary for decision.
We think, also, the insistence of the demurrants that -the import of the bill is alone to require a specific performance of an agreement to adopt- is unsound. While ^ueh relief is prayed for, the scope is far beyond that, inasmuch as it is distinctly asked that, upon the ground of the agreement alleged, the complainants be let into
As has been, said, the principle has been applied by many courts in cases with facts like the one at bar. In all of the cases where the relief sought has been given, it will be found that the defense was largely put upon the ground that the agreement rested in parol, and
Upon an examination it will be found that the courts have gone very far in reaching the equity growing out of contracts such as the one set up in the bill in this cause. In Van Dyne v. Vreeland, 11 N. J. Eq., 370, an uncle had made an agreement with the father of an infant child that he would adopt the boy, and after the death of himself and wife all the property should go to him. There was no formal adoption; but the child lived in the family for twenty-five years, assumed the family name, and treated these parties as parents. Upon these facts the court held there was a performance upon the part of the child, and the implied agreement as to his inheritance could be enforced. In Van Tine v. Van Tine (N. J. Eq.), 15 Atl., 249, 1 L. R. A.,
It is contended by the demurrants that the statutes relating to adoption are exclusive, and that no right to take the property, as an 'adopted child, can spring otherwise than from statutory adoption. It is to be observed, however, that the complainants are not claiming the right to be let into the estate of the deceased as adopted children; but they are asking for the enforcement of a contract, placing their right to relief entirely upon the obligation assumed by the deceased in that contract. The same defense was made in Chehak v. Battles, supra, where the parties resisting recovery relied, as do the counsel for demurrants in this case, upon certain earlier Iowa cases which seem to sustain that view. In the GhehaJc Gase, however, those cases are explained and limited so as not to conflict with the principle announced in the case then in hand and recog-ized here. It is there said: “The authorities upholding the right to specific performance never decree that the child is entitled to the right of inheritance as an heir. They do not undertake to change the status of either party, but merely to enforce a contract which has been
It is further contended that the complainants should be repelled upon the ground of laches. If they were here setting up a right by virtue of adoption, or if they were seeking through the court to have done now what the deceased undertook in his lifetime to do — that is, have a decree of adoption — this contention might with some plausibility be relied upon. But, as has been seen, this is not the real purpose of the bill, although thfi prayer does embrace such relief. What is sought is that a performance of the contract to leave his estate to the complainants be enforced as against the defendants, who stand in the place of their ancestors. This feature of the contract was breached only at the death of Mr. Starnes, and upon the face of this bill it is clearly inferable that it was filed within a short time after that event occurred.
We are satisfied that error was committed by the chancellor in his disposition of this case. His decree is therefore reversed, and the cause is remanded for answer and proceedings.