*1 Co., & Evans v. L. N. R. 191 Ga. 2d, assailed the petition zoning ordinances as being violation State various provisions Federal In Constitutions. case, the view we take of the it is unnecessary to deal with any for these whether ordinances be questions; valid or invalid as church, the allegations to this were sufficient applied to state a relief, cause of action for and it equitable was error to sustain the demurrer dismiss general petition. reversed.
Judgment All the Justices concur. TOLER, administrator, v. GOODIN. *2 Rehearing. 25, 4,
No. 15301. 1946. 1946. Adhered March on March Rehearing 1946. Second denied March *6 Felton, Jule for in plaintiff R. Pearce error. D. Neal, F. contra. B. Bull and J.
Jared
(After
stating the
Justice.
Chief
foregoing facts.)
Bell,
(cid:127)
in this
urged
court under
contention
only
general
no
allegation
there was
the petition
is that
demurrer
plaintiff,
adopt
allegedly agreed
did
do.
contention,
aware,
far as we are
so
there is no decision
toAs
other than certain
point,
physical
directly
prec
this court
Wilson,
Since
is
relief
plaintiff by
petition
seeking equitable
it would seem that such an
would be
only,
allegation
necessary
order to
that she is
show
entitled to
relief. Steed v. Savage,
Atlanta,
272);
This a suit one to require plaintiff, was not was a suit to establish title to property by decreeing but it obligors, entitled thereto as a child of the alleged just plaintiff had to the legally adopted she been though according *7 the “A a child obligation by person parol agreement. a virtual own, by though his not a accompanied of another as acted all concerned for by parties and upon statutory adoption, life, in be enforced the during obligor’s may equity and many years child the entitled'as by decreeing the of the obligor, death upon of will.” obligor, undisposed by of the property child Wilson, case, Ga. 654 In (supra). “equity v. 139 Crawford done, to have and as ought done which been one of considers that had been if act of con- adoption formally consequences, as an heir summated, the child would inherit be that would that the by decreeing will enforce the contract adopter, equity Ibid, 659; p. fruits of a legal adoption.” is entitled to the child with this here was in Code, harmony 37-106. The petition § clearly showed an in- prayers its and allegations and principle, thus, effect, petition nothing it. The was to invoke tention that was en- plaintiff to the court than representation less to have as which been ought done that treating to a decree titled that the Tolers had not implied adopted done, necessarily and this Its whole tenor alleged agreement. with the her, in accordance with any supposition inconsistent that she are import utterly and it clear and necessary therefore shows so and adopted, was ever ever was consummated. adoption such formal that no implication demurrer, considered on general when a petition, It is true that pleader, that in against most strongly be construed must
535
rule the
applying this
petition should be
construed
light
its
omissions
-wellas its averments.
v.
Toney
Ledford, 184 Ga.
Lahman,
S. E.
(193
Mackler
(2)
761);
v.
The
in error insists
on
plaintiff
only
the 6th
his
ground of
demurrer,
“He
special
to wit:
demurs
specially
paragraph
because in
petition
eleven
said paragraph certain allega
viz.,
tions
‘The Tolers further at
appear,
said time and place pro
if
father
petitioner’s
he would
posed
relinquish all claims
of all nature to
Mr.
petitioner,
they,
and Mrs.
Toler,
C. J.
child;’
would
own
adopt petitioner
their
and the following
words, ‘D. J.
then and
Bryan
there accepted said proposition and
over
turned
your petitioner -unreservedly to Mr. and Mrs. C. J.
Toler;’”
the objections
that “said
being
expressions are con
it
clusions of the
pleader,
legally
requisite
identical
words and the circumstances
their
should be
use
set forth ac
allegations
were
curately
petition.”
not subject to the
made.
forth
They
definite,
set
objections
plain,
traversable
facts, and the
can not be
plaintiff
required to
forth
set
the evi
*8
exact
dence,
or the
conversation
which he expects to
the
prove
Co.,
v.
made. Bittick
Ga. Fla.
Ry.
&c.
Before trial child, J. the father the Bryan, that D. praying plication nisi,, exceptions The court denied the rule plaintiff. made party It taken, now were and error is thereon. assigned lite pendente 536 urged
was that the father for the necessary was party plaintiff reason that he was a to the In party alleged contract. Crawford Wilson, an v. 654 held “Such Ga. it was (2) (supra), against suit is in her own name equitable maintainable the child Montfort, the the In Copelan administrators of obligor.” it question, S. E. a case the same 514), involving to necessary party is stated on 567 that “the father was not a p. Lansdell, 2) See 144 Ga. (1, also Lansdell v. petition.” the motion for a. We consider next the general grounds case, phase question trial. As the principal new to contract whether the evidence was sufficient to prove father, D. Mr. and Mrs. C. J. plaintiff’s Bryan, between as their Toler, whereby plaintiff J. agreed set to the evidence forth addition Accordingly, child. to the statement, necessary testimony relating it is to consider the father, Bryan, Mrs. Toler and the and also between conversation Mr. and Mrs. Toler and Bryan. conversation between both daughter. Ethel . . is my “Mrs. Goodin Bryan Mr. testified: Her 1909. mother died the next morn September was born She I had seven other children at the time. was born. after she ing Mrs. . . wife J. Toler’s years. My about 12 was C. oldest The care for infant properly my baby . . Had no one sister. not . . any did have children. Toler. She They Mrs. except I taking child, to. ask about said was she me that wanted told with other children and financial . . seven con- in shape not I her . she could have . . told the child. . not good. ditions down Mrs. then Toler’s mother. Mrs. baby carried We . . The baby. physical condition of for the eared Toler . other . children were My staying there good. was child . until I . married again, settled . . I get I could until in March. . . After time I I . some married . remarried all back, except baby. children She stayed larger took with I had a conversation C. J. Toler —he Toler. Mrs. with about in Lumber it about 1910. . . City me with some talked have her glad would be would they they spoke heway I . . could. had one conversation good her just treat : . him . similar . . . Lum- McRae at with with Mr. and Mrs. Toler when had a conversation City. ber *9 were they after I together married. . They .. came over see to child, me about the . . and wanted to know if after I married I . . had decided to change mind my and take her possibly back. . . I told them the trade was the same. . . The trade was were to they take the child as their own I child. retained no claim whatever. She never lived in home. I my never saw her from her birth until twelve . years age. . I contributed whatever to her nothing support.” cross-examination,
Upon witness’s attention was called interrogatories which previous he had testified: “Her and Toler were and separated had no they children, seemed is [if?] own, had one of their they was that the talk had they with me— they that wanted the child—that was all I know except they me her wanted to them. give At first I hated to from part I her but afterwards her gave the child. I told them I not ever interfere if would treated they her all I right. did not At the interfere. time the transaction was entered into I have Iall know and I you told have not interfered. The conversation Toler and Mr. with Mrs. Toler referred to occurred in Telfair not at the funeral of wife. County, my That conversation at the was with my funeral of wife Mrs. Toler.” He stated, then “I know want to add anything don’t to the statement.” was then asked the The witness following question: “The ease relies states daughter on your which on September at and mother, funeral of petitioner’s Mr. and after Mrs. C. J. Toler the father of your petitioner to give her requested them, stat- in the presence at that time each other that he ing would not for and rear provide able to properly your petitioner, while Toler, and C. J. were Mrs. Toler amply able they, financially for and educate your petitioner. provide properly The Tolers time at that and place said proposed further to your peti- .would if he relinquish father all tioner’s claims of any nature would (Mr. Mrs. C. J. to petitioner, Toler) adopt own, would love and provide as their for her petitioner all fully her welfare and make her essential the heir things to inherit if she had been their death natural child. at their D. J. said accepted and there proposition then Bryan turned over to Mr. and unreservedly Mrs. C. J. Toler.” petitioner To your “Well, I did.” replied, Continuing, he witness which stated: “As to whether the agreement in accordance with happened *10 allegation much like that happened pretty petition, there first —it Toler and the same . occurred after I married. . thing again liv- was not were my at wife’s funeral. . . At that time they I on ing . . . . relied separate. second wife is dead. My I . . the last contract. . we had. . That was the last talk the can it was from not tell definite of time you the right length first the to last with I conversation C. J. Toler. . . remember the conversation well. . . The Tolers were in very fairly good . . IWhen did see her I shape. child], never related to [the her about I anything any scheme had for her and bet- up living terment and location. . . I ever don’t know whether she was told . . I I or not. was never her tell her anything. with had I never told her before saw at 14 or since.’’ age her years examination, nonsuit,
Upon redirect after a motion for the witness further testified: “Beferring agree- to consideration Toler, ment me and between Mr. and Mrs. . . wanted . . if I to know would make interference any complaint against child, that; them, them about the like . . anything I told No.’ The of the words . . . subject were about like this: . child, fared, That home, she would be their in their fare as they an heir and would be anything their they possessed during life, in- that, or like something along or at their death she would herit whatever at their death they possessed as one of their children. That is about the all I pith of remember about that. In response that, them, I the child and told them that I gave would never interfere.” general on which a court in a principle of equity may ease allow under the so-called virtual
proper
recovery
doctrine of
division,
has been
in the first
adoption
quoted
supra. On the
Cade,
see Richardson
E.
general subject,
v.
There is contention on the in terror part plaintiff no in- rule, to the soundness he takes the of the but position stant evidence ease does not meet its in that requirements, does not establish More particularly a contract to the child. “ he used insists that nowhere in the evidence is the word adopt” any on the foster agreement part parents; there could be no valid without use of express contract the term Whether or not statement of “adopt.” foregoing context, witness “Well, did,” could Bryan, considered with have taken been offer by jury showing specific and an of such offer “adopt,” acceptance parent, we do not must think that word specific “adopt” every case be used in a contract this nature. It is true in order con- to be enforceable under the doctrine of virtual adoption, *11 tract must and intend a to comprehend legal adoption according O’Neal, This, 2d, Jones 194 49 E. 585). statute. v. Ga. S. (20 however, meaning language clearly having not to say circumstances, not under the attendant and surrounding though In insufficient. would be containing precise phraseology, legal connection, following this attention is also called to the specifically above: “As to as stated testimony Bryan, additional the witness in accordance with that allega- the agreement happened whether much like and petition, there first happened pretty tion —it The subject after I married. . . of the same occurred thing their . That she would be . . were about like this: . words home, fared, and would be an heir to child, fare as they in their life, like their or during something possessed anything they at would inherit whatever that, possessed at their death she or Iall That is about the pith death as one of their children. their them, In I the child to about that. to response gave remember interfere.” While this did language them would never and told it a clear definition the technical word did contain “adopt,” contain Code, 74-404. aby statutory adoption. status created legal § the status and relation- if did to establish agree And the Tolers would include indicated such testimony, agreement as ship effectuate necessary all things reasonably ah to do obligation 575). 539 W. Martin, 250 Mo. S. (157 result. Martin v. such in a declaration necessary allegation difference between a “The such sustain allega- be sufficient to may and the evidence which 540 Wells, 41).
tion
126
343,
is clear.” Kendall
E.
v.
S.
(55
Witnesses are not
as definite
expected
pleader
be
and
precise
be,
must
an oral
authority
agreement
there is
to the effect that
acts,
be
conduct,
shown
and admissions of
adopt may
contract,
exact
and that
parties,
order
establish
connection,
J.
word
2 C.
“adopt” need not be used. See
509;
26;
Taylor
Remmers
239 S. W.
(Mo.)
Remmers v.
S.
§
Hockaday,
2d,
v.
1055); Lynn
In
instant
in
was, as
There
we have
Bryan.
of the witness
testimony
evidence,
of the
to statements
dicated,
relating
much additional
relations as between them
Tolers,
apparent
the conduct and
his
child,
testimony,
and other circumstances corroborating
an
toward the conclusion that
there -was
agreement
and pointing
whole,
evidence as
we think that the
Considering
to adopt.
find
Nor,
that there was
authorized
such a contract.
jury were
do
overlook the rule that in
we
such a case
holding,
in so
the alleged
must
so
proved
clearly,
strongly,
satisfactorily
agreement
no reasonable doubt in the minds of the
to leave
jury. Ansley
541 did as stipulate anything child, not to performance by 'the there was no defect in proof so as to this Chamblee v. point. 821 Wayman, 167 Ga. (3) This con (supra). statement is not Hamilton, in Rahn to the v. 144 644 trary ruling Ga. S. (2) (87 E. status.” 1061), referring “equitable to The evidence showed father. was by the Nor there fatal as relinquishment a variance allegations between the with proof respect to the alleged agree ment. v. Napier Strong, Ga. App. More 579). over, trial, under the made at the agreement be only issue to to the or submitted was whether not the jury Tolers contracted child; Bryan adopt with D. J. to accordingly, as question the child a to whether contract was not performed in issue. Nor was it under agreement, necessary this prove that there had statutory been no While adoption. defendant did not waive demurrer, thereon, he rested apparently his without requiring Phosphate Bros., as this matter. proof Albany Co. Hugger S. E. The evidence App. (1a) did de not was mand barred finding plaintiff by laches, a if even have been authorized. finding might In the 2nd of the amended ground motion, it is alleged erred in charging the court follows: question “So the for you ease is—did the determine this contract with adopt as their plaintiff plaintiff father of child as alleged, contract with on the complied and was the part the father? If that the Tolers find with the father you contracted of the child her as and the petition contract was per father, find then should for the you plaiptiff.” formed The was error because the charge movant contends evidence it, and he further set forth did authorize the identical reasons under 1st of the amended assigned ground that were motion. charge, authorized there was The evidence no merit taken thereto. exceptions of the any will to the 3rd ruling apply ground amended
The same an omission to motion, charge. complaining of the amended motion was the 4th refusal ground evidence letter to admit in written by of the court Justice War below, for the defendant in the attorney to the court ren Grice agreement had been an between which there counsel and as to shall used under the deposition letter the foregoing “that *13 rules of as law to admissibility.” The letter related matters certain that would the writer prevent witness, from the trial a attending as and then stated that for a period of five or six years (computed from about 1931 being he was 1937), with the intimate Tolers, that he month, week-end with them spent about a once visited with homes, he them other visited his home. A of letter of portion told mani- great affection the Tolers Powell, fested for a Bill nephew, who on all of the writer’s visits in their was home. The letter present stated also that on one occa- there there, sion was niece of Mrs. Toler whom the writer saw recollection, but that his according to she left after supper elsewhere. The writer did spend night not whether this say niece was the or some present plaintiff, other niece of Mrs. Toler. After that the could recall writer whether he had ever stating Powell, heard either of had Bill say they adopted or that he would letter get their concluded as follows: property, “I I have never heard Mr. know either or Mrs. Toler anything say else, about one nor have I heard either of them having adopted any in terms of affection of niece of either them. speak any My visits to the Tolers and of many recollection of conversa- many is, we had that I left with a tions was distinct that the impression Powell, this much in Bill very wrapped future of was couple up near and he was a son to them one could be. did not [as] them get impression from these conversations that either of kind of affection for other niece any had the same or nephew I am sure that I never and Mrs. Toler. heard either Mr. or Mr. niece, he or she had or that either say adopted any Mrs. Toler them; niece of either of get property of them expected any I was there did I witness niece after any looking and never while them, to their contributing anything with or staying them or or comfort.” support letter insisted was admissible for the purpose
It
was a contract for adoption.
there
illustrating
whether
after the
was from
to 25 years
the evidence
covered
period
made, and was several
after
years
to have been
contract was
womanhood,
had married and
moved
had
grown
the child
that the writer of the let-
to the effect
It was a statement
away.
Toler
had
say they
Mr. or Mrs.
adopted
never heard either
ter had
their
niece to inherit
property.
any
that either expected
niece or
*14
This evidence was
in
merely
character,
re-
negative
and was too
have
value
mote to
on the
any evidentiary
issue as to whether
a
made,
to adopt
contract
was
as claimed
the
by
plaintiff. DeNieff
Howell,
In 5th motion, the of the amended ground assigned error is aon of court ruling excluding the testimony that Mr. and Mrs. Toler had stated that two other children (not child including the here their involved) adopted were children. Counsel to- stated the court that the of this evidence purpose was to “what show Mr. and Mrs. Toler meant the word 'adopted.5” We cannot evidence, see how this of a bare type especially and unexplained witness, statement as that mentioned the could illustrate the issue as to whether the ever entered parties into a contract to the child There is in adopt question. here no merit this ground. 6th
The the court erred in ground alleged admitting an authenticated copy in evidence of an application of C. Toler J. for a in Florida which contained homestead the ques following Q. married, “If of tion and answer: whom does con your family ? daughter A. wife and My adopted myself." sist Inasmuch discloses that at the time this the evidence application made was Tolers, was with the question the child in it living was relevant as there had been a whether contract to adopt illustrating the child. 10. The 7th court erred in ground admitting evidence, objection over it was a conclusion of the statement, witness, Mrs. W. A. Spillers, “Mr. and Mrs. Toler Ethel their constitute family;" and their daughter contending no which such a conclusion stated could upon facts were be based. witness, this we find" testimony that she further [Reviewing Cocoa, Florida, she met testified that when they music, her take Ethel daughter their brought she for three At years. this time Ethel daughter taught was about “Mama” and old, and called them “Daddy.” wit eight years The child time that the long did not know for was not ness their own child as Ethel only knew Toler. child, and she When the Tol Ethel with the stayed witness for Georgia, moved to ers about three her returned and carried months, until Miona Springs. witness, of this testimony objection the entire In view was merit. without amended motion 8th contends ground that the H.
court erred in admitting the the witness following testimony of had H. Sams: "She told me that . . she (Mrs. Toler) baby.” the child Toler, since she was adopted (Ethel plaintiff) evidence ruled in 6th already As division of this opinion, contract there had been a was relevant as whether illustrating the child. The court the plaintiff. The evidence authorized verdict for a new did not err in trial. refusing Duckworth, concur, except All the Justices Judgment affirmed. Head, J., J., dissents, in part. dissents who who
ON REHEARING. case, motion for re- judgment in this After affirmance of has now revised and and the been opinion was hearing granted, *15 error, must we find no the judgment but since still supplemented, adhered be to. concur, to on All the Justices rehearing. adhered
Judgment Head, dissents, J., Duckworth, J., who dissents who and except in part. SECOND MOTION EOR REHEARING.
ON The demurrer: petition having alleged 1. As to the general father and plaintiff’s' between the Tolers an orahcontract (both her, to agreed wherein deceased), adopt together now she is entitled showing facts that to the benefits of with additional contract, alleged and further the administrator having such her as an heir or being interest entirely having any has ignored Toler, and having prayed C. J. that the administra- in the estate of and fulfill the obligations contracts of C. J. Toler required tor be to and to the the entire paying plaintiff net turning proceeds over by estate, facts and these circumstances the 0. Toler as shown of J. that the implied plaintiff had never necessarily been petition Tolers, in with compliance con- adopted by alleged legally of the motion for The is without ground rehearing tract. first merit. in the other urged grounds off the
2. The contentions motion in the opinion, dealt with cause show no sufficiently have been judgment. a different for concur, All the Justices denied. rehearing except
Motion for Head, J., dissents, who Duckworth, J., dissents in part. who must 1. It be Justice, conceded dissenting. Duckworth, it is of the right petitioner essential to the to maintain an action for virtual there must have a adoption been of breach the con tract This is adopt. true for the reason had contract child, been performed, would inherit as petitioner a and in that event would have no make right to an claim equitable If, therefore, estate. maintenance against present suit is a of the dependent alleged breach contract upon to adopt, an then such breach is essential part of petitioner’s case. essential, If it if must there is a proved, necessity to prove fact, such a then likewise it is it. necessary allege This propo Simmons, well sition is stated Groover v. 780 (137 S. E. "A 237), follows: fundamental rule of evidence is that matters party permitted prove which are not put issue his Pirkle v. pleadings. Ga. 828 Cooper, (4) Leader, Insurance Co. S. E. Ga. 260 289); S. E. is an fundamental canon of equally
It pleading, as re especially lated that he must plaintiff, plead as well as prove mate every him necessary rial essential to enable to carry the burden of estab it, the affirmative of the issue.” therefore, take lishing that there is and can be no but as a matter question of law the main of the action is present dependent tenance upon allegation and breached the that the Tolers proof alleged contract to An adopt. not only examination fails to petition utterly disclose an al essential, fact but in contains legation averments that as a matter of law show non-existence this essential fact. sets forth the agreement and the *16 petition alleged per of the the and then upon part petitioner, formance alleges that by the is an petitioner these facts heir and reason of entitled to inherit an Such allegation the Tolers. is equivalent as such from the of for it legal adoption, an actual would be such alleging by proce allegation can be only petitioner’s true. To dure uphold of the challenge general demurrer, as against the petition violate the squaTely opinion my universally accepted would in ap in is well stated v. Krueger rule which MacDougald, 148 plicable follows: is 867), as "It an S. E. (96 429 rule elementary Ga. to a it construction, applied is pleading, to be construed of and if an pleader; against inference un strongly most a right of under party claiming the right such a favorable from drawn the facts therein, stated fairly bemay pleading 546 in
inference will
prevail
determining
rights
parties.”
of the
It
Mr.
should
noted that
Justice Atkinson
433 refers to
be
at page
1
headnote
follows:
in the first
“The
announced
principle
either
is
is
universally
unnecessary
headnote
so
that it
recognized
the rule
to cite
for it or to state the reasons
which
authority
upon
Bell,
is based.” This same
rule
statement of the
was quoted
Co.,
J.,
30
466 (118
in Moore
Seaboard Air-Line Ry.
App.
v.
Ga.
of
cases
471).
S. E.
This court
it
the recent
again quoted
2d,
and Hardin
McEntire v.