Mulligan v. Mulligan , 201 Ga. 444 ( 1946 )

1. Where the intestate of the petitioner instituted a proceeding to adopt a minor child over 14 years of age and pursued the action to a final judgment of adoption and enjoyed the benefits of such adoption as shown by the present record, he would, if in life, be estopped to assail the validity of such judgment, and his brothers and sisters claiming under him are likewise estopped from attacking such judgment on grounds which otherwise might be upheld. Davis v. Wakelee, 156 U.S. 689; Luther v. Clay, 100 Ga. 236 (28 S.E. 46); American Grocery Co. v. Kennedy, 100 Ga. 462 (28 S.E. 241); Vaughn v. Strickland, 108 Ga. 659 (34 S.E. 192); Gentry v. Barron, 109 Ga. 172 (4) (34 S.E. 349); Waldrop v. Wolff, 114 Ga. 610, 619 (40 S.E. 830); Neal Loan Banking Co. v. Chastain, 121 Ga. 500 (2) (49 S.E. 618); Comer v. Epps, 149 Ga. 57 (2) (99 S.E. 120); Harper v. Lindsey, 162 Ga. 44 (2) (132 S.E. 639); Hughes v. Field, 177 Ga. 128 (1) (169 S.E. 344); Christopher v. Almond, 177 Ga. 211, 216 (169 S.E. 899); Bruce v. Bruce, 195 Ga. 868 (2) (25 S.E.2d 654). Accordingly, the court did not err in sustaining the plea of estopped filed by the alleged adopted daughter against the adverse claimants, brothers and sisters of the adopting parent.

2. After a judgment of adoption, the relation between the adopting parent and the child shall be, as to their legal rights and liabilities, the relation of parent and child, except that the adopting parent shall never inherit from the child, and the law requires that the judgment as here rendered shall declare the child capable of inheriting the estate of the adopting parent. Acts 1941, p. 305 (Code, Ann. Supp., § 74-414). Such relation of the child to the adopting parent is as to inheritance exactly the same as it would have been under an actual blood relation of parent and child. Pace v. Klink, 51 Ga. 220, 224. Upon the death of the husband without lineal descendants, the wife is his sole heir. Children stand in the first degree from the intestate and inherit equally all property of every description, accounting for advancements as provided in the Code. Brothers and sisters of the intestate stand in the second degree, and shall inherit only if there is no widow, child, or representative of a child. Code, § 113-903 (1, 4, 5). The wife of the adopting parent having predeceased him, according to the record, the adopted child was at his death his sole heir, in the relation of parent and child as established by the law, and was entitled to all of his estate. Accordingly, the special ground of the movants' motions for new trial, contending that even if the adoption proceeding was valid the child would not inherit the entire estate of the adopting parent but would share with them, is without merit. See Harper v. Lindsey, supra (p. 49).

3. The court did not err in finding against the claim of Henry L. Mulligan, individually, to the one-half interest of the intestate in the farm owned by the two brothers as tenants in common. The evidence showed at most only an intention expressed to third persons, but without any promise to the brother, to make a will devising such interest to him, or an oral agreement, because of the close and pleasant brotherly association between them, that the claimant should have such interest if he survived the intestate. Even a parol gift of land in prasenti, based upon a meritorious consideration, and accompanied by possession, but with no valuable improvements made upon the land during the lifetime of the alleged donor, will not authorize a decree of title in the donee. See Code, § 37-804; Thompson v. Ray, 92 Ga. 285 (18 S.E. 59); Kemp v. Hammock, 144 Ga. 717 (87 S.E. 1030); Doe v. Newton, 171 Ga. 418 (156 S.E. 25).

4. The amendment to the answer of the alleged adopted child, wherein she denied the allegations of the administrator individually to any right to the one-half interest of the intestate in the farm and set up various reasons why the claim was invalid, having been admitted in evidence without objection, the complaint made for the first time in the special ground of the motion for new trial filed by the administrator in his representative and individual capacity, that it was not sworn to and did not come within the agreement of the parties that all sworn pleadings might be introduced in evidence, is not entitled to consideration. Jenkins v. Jenkins, 150 Ga. 77 (102 S.E. 425); Shirley v. Byrd, 162 Ga. 598 (134 S.E. 316); Crosby v. Rogers, 197 Ga. 616 (1) (30 S.E.2d 248).

5. The foregoing rulings dispose of the controlling issues in the motions for new trial, and the court did not err in overruling the same.

Judgment affirmed. All the Justicesconcur.

No. 15532. SEPTEMBER 6, 1946. REHEARING DENIED OCTOBER 11, 1946. STATEMENT OF FACTS BY DUCKWORTH, JUSTICE. Henry L. Mulligan, as administrator of the estate of William Taylor Mulligan, deceased, filed in the Superior Court of Richmond County, Georgia, a petition for direction as to the payment of claims against the estate by named persons, who subsequently answered and set up their claims as follows: Hazel Marie Mulligan, a minor, and her guardian, Horace A. Wingard, asserted that she had been legally adopted, when over fourteen years of age, by the intestate under a judgment of the court rendered on November 27, 1942, and that, therefore, the wife of the intestate being dead, and he having no lineal descendants, she was his sole heir at law and entitled to his entire estate. Samuel B. Mulligan, Mrs. Maud Scurlock, and Mrs. Dennis Ludwig, brother and sisters of the deceased, contended that the adoption proceeding was for stated reasons void, and that they were the sole heirs of the deceased and as such entitled to his estate. Henry L. Mulligan, individually, a brother of the intestate, sought to have decreed to him title to a one-half interest of the intestate in a certain farm which he and the deceased owned as tenants in common. In her answer Hazel Marie Mulligan pleaded that William Taylor Mulligan having instituted and prosecuted the adoption proceeding to final judgment, and having enjoyed the benefits thereof until his death, he and the petitioner and other brother and sisters claiming under him were estopped to question the validity of the judgment; and she also set up a plea of res adjudicata by reason of Samuel H. Mulligan and his two sisters having unsuccessfully sought previously to set aside the judgment as reported in Mulligan v. Wingard, 72 Ga. App. 539 (34 S.E.2d 305). She also filed an amendment to her answer in which she denied the validity of the claim of Henry L. Mulligan, individually, to the one-half interest of the intestate in the farm jointly owned by them. The court, without the aid of a jury (as agreed by all parties), and at the conclusion of the hearing, rendered judgment holding that the adoption proceeding was valid and binding upon all parties; and that, if in fact it was void, the brothers and sisters of the deceased, claiming under him who procured the judgment of adoption and benefited thereby, were estopped from attacking the judgment, sustaining the plea of res adjudicata, and disallowing the claim of Henry L. Mulligan. The title to all the property of the deceased was decreed to be in Hazel Marie Mulligan, and the administrator was ordered to deliver the same to her and make necessary and proper conveyances, and costs were assessed against the brothers and sisters of the deceased. The amended motions for new trial by the brothers and sisters and by Henry L. Mulligan, as administrator and individually, were overruled on all the general and special grounds; and they excepted in one bill of exceptions, as directed by the court after consolidation, in case of exception.