Richardson v. Cade , 150 Ga. 535 ( 1920 )

George, J.

(After stating the foregoing facts.) The demurrer calls for a construction of the petition; hence we have set out the allegations at some length. It is now settled in this State that “ 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 will.” Crawford v. Wilson, 139 Ga. 654 (78 S. E. 30, 44 L. R. A. (N. S.) 773). The rule above quoted is not questioned by the demurrer. It is insisted that the allegations of paragraphs nine and ten of the petition are qualified and limited by the allegations of paragraph twelve, set forth in the statement of facts. By reference to paragraph nine it will be noted that a clear contract to adopt the plaintiff is set out. A contract to adopt carries with it the incidental right of heirship. The parent may by will cut off a natural child. There is therefore a wide difference between a contract to adopt a child and a contract to make provision by will or otherwise for the benefit of the child. Properly construed, the allegations of paragraphs nine and ten of the petition alleged a parol contract to adopt, coupled with an assurance that the adopted child would not be deprived of the fruits of such contract. The allegations of paragraph twelve of the petition are pleaded as acts of the intestate “ in part performance of the contract; ” that is to say, the allegations of this paragraph of the petition are evidentiary. It appears from the petition that plaintiff was received into the home of the intestate under the contract to adopt her in 1906. The legal proceeding pleaded in paragraph twelve of the petition was not filed until the latter part of 1913. During the intervening years, according to the petition, the plaintiff had fully performed every obligation, express or implied, resting upon her. The allegations of paragraph twelve, therefore, can not be construed as a qualification or limitation upon the prior contract to adopt, set out in paragraphs nine and ten of the petition. The interpretation to be placed upon the conduct and acts of plaintiff’s mother and intestate, as alleged in paragraph twelve of the petition, may or may not be favorable to the contention now made by the plaintiff. It was nevertheless competent matter to be pleaded by the plaintiff. As pleaded, the allegations do not qualify or limit the contract 'set out in the preceding paragraphs of the plaintiff’s petition. ,

The court can not decree a specific performance of a contract to make to the plaintiff “a substantial gift of real estate and personal property.” Such a promise is too indefinite and indeterminate in 'character, and can not be given effect. Citation of authority is unnecessary to sustain this proposition. As we have indicated, the petition does not pray the specific performance of the contract to make a substantial .gift, or to substantially provide for the plaintiff. It is a petition in equity to have the equitable status of plaintiff declared and to have her equitable rights enforced by appropriate decree (Pair v. Pair, 147 Ga. 754, 758; 95 S. E. 295); and with this as its purpose we are of the opinion that the court erred in dismissing the petition upon demurrer.

Judgment reversed.

All the Justices concur.