Sisson v. Irish , 23 Ohio App. 462 ( 1926 )

This cause comes into this court on error from the court of common pleas of Cuyahoga county, and the same question practically is involved in case No. 7117, George R. Sisson,Plaintiff in Error, v. Fred C. Irish et al., Defendants in Error, and in the appealed case No. 7124, Fred C. Irish et al. v. GeorgeR. Sisson, being whether the plaintiff in error, Sisson, is entitled to the specific performance of a certain contract, and the determination of that point settles the issue as it arises in cases Nos. 7117 and 7124, above set forth by their titles.

This contract begins with the word "Adoption," and contains the following recital:

"And, whereas, Mr. and Mrs. Porter Sisson have applied to the managers of said society to put out and place the said child with them by adoption and as an apprentice.

"Although the present instrument binds the above-named child strictly as an apprentice, it is nevertheless the true intention of the parties of the first part to place, and of the party of the second part to receive, said apprentice as an adopted child, to reside in the family of the party of the second part, and to be maintained, clothed, educated, and treated as far as practicable with like care and kindness as if he were, in fact, the child of the party of the second part."

On the back of the contract, executed in duplicate, appears the following:

"And it is further understood that information, verbal or written, respecting the welfare of said apprentice, will be required at least once a year."

It appears that Porter W. Sisson and his wife, Mary Sylvania Sisson, in December, 1875, entered into a contract with the American Female Guardian Society, the excerpts from which are recited above, and it is contended that from the terms of such contract it was the intention of the contracting parties to adopt the plaintiff in error, whose name was changed from the one he then bore to that of George R. Sisson; that the interpretation given the terms of the contract by the parties thereto is the interpretation which the court itself should give to its terms; and it is contended that by so doing the clear intent thereof was to clothe the plaintiff in error with all the legal rights relative to the descent and distribution of property that a natural-born child or heir of the bodies of Porter W. Sisson and his wife, Mary Sylvania Sisson, would have. It appears, further, that, under the contract executed by the Sissons with the American Female Guardian Society, the plaintiff in error, who was a small child, was taken into the family of the Sissons and lived with them as a member of the family, and that such a situation existed subsequent to the said child arriving at age.

From an analysis of the contract, it is clear that the primary purpose thereof is that the said child shall be apprenticed by the American Female Guardian Society to the Sissons, for by its terms it is clearly pointed out that the instrument of writing binds the child strictly as an apprentice, even though it is further stipulated that the intention of the parties of the first part and of the parties of the second part is to place and receive said apprentice as an adopted child. It also clearly appears that the purpose of placing said apprentice as an adopted child was that he should reside in the family of the Sissons and by them be maintained, clothed, educated, and treated, as far as practicable, with like care and kindness as if he were, in fact, the child of the parties of the second part.

The writing on the back of the instrument of writing corroborates and strengthens the apprenticeship as the primary object of the contract, for it says:

"It is further understood that information, verbal or written, respecting the welfare of said apprentice will be required at least once a year."

Were the terms and provisions of the contract of such a specific nature as to make adoption the real purpose, then it would be unnecessary to make reports at least once a year of the welfare of the apprentice, because then the character of the child would be that of an adopted child.

There is no specific provision which binds the Sissons to make the plaintiff in error an heir, or to invest him, in any manner, with the rights of a natural-born child with respect to property devised by will, or coming by way of descent and distribution. Thus, with respect to the question of the specific performance of the contract, there is no provision contained therein respecting which the court could compel performance, because of the silence of the contract thereon and the inadequacy and ambiguity of its provisions.

It is very doubtful, in the face of the sections of the General Code of Ohio relating to adoption, whether any such provisions, clothing the child with such property rights, are enforceable. The statutes specifically point out the manner in which a child may be legally adopted. It is not contended that any of these statutes were followed, but it is contended that adoption was the intent and purpose of the contract. We cannot reach this conclusion from an examination of its terms, for the reason that apprenticeship and adoption are not consistent with each other. If the child, under the contract, was legally adopted, then he would not be an apprentice, because parents do not apprentice their own children, and by the same reasoning there would be no adoption, because the child, under the terms of the contract, was apprenticed by the American Female Guardian Society to the Sissons, and the moment that there was a legal adoption the apprenticeship would cease.

The word "adoption" is used with its limitations, which are specifically set forth as meaning that the child shall reside in the family and be maintained, clothed, educated, and treated, as far as practicable, with like care and kindness as if he were, in fact, the child of the party of the second part. This language shows the extent to which the parties intended the question of adoption to go, and its clear intent seems to have been that the treatment of the child should be such in the way of kindness, clothes, and education as natural children are expected to receive from their own parents.

We do not find any stipulation in the contract which binds the Sissons to adopt the child, and we do not discover any provision which in and of itself is sufficient to signify such an adoption as would in any wise make the child the heir of the Sissons. It will be noticed in the "whereas" that Mr. and Mrs. Porter Sisson have applied to the managers of said society to put out and place the said child with them by adoption and as an apprentice. Certainly, there is nothing in that language, for it refers only to the application, and while the application was pending the child was obviously in the possession of the society.

Then for fear of a misconstruction of the contract, caution is exercised in another paragraph by use of the language:

"Although the present instrument binds the above-named childstrictly as an apprentice, it is nevertheless the true intention of the parties of the first part to place, and of the parties of the second part to receive, said apprentice as an adopted child."

It nowhere stipulates that any steps will be taken to adopt the child, and, as far as the record is concerned, there was no appeal to the statutes of Ohio relating to adoption.

In the case of Snyder v. Shuttleworth, 5 Ohio App. 137, 25 C.C. (N.S.), 545, 27 C.D., 234, cited by plaintiff in error, was a contract where it was mutually agreed that the child should be adopted; that the parents would perform their duties and obligations toward it as parents; and, further, that the child should inherit from them all property which she would inherit if she were their own child. In that case it was held that the contract could be specifically enforced to compel the person to whom the legal title had descended to convey the property in accordance with the terms of the contract, if such contract had been fully performed on the part of the child. The court said, at page 551:

"There is no obstacle to a specific performance, and it is only justice that, after her father released her to a stranger and gave up the society of his daughter, according to the contract of 1874, and after Della has fully completed the same, she should now be decreed what it was agreed she should have when the contract was made."

In the case at bar there is no provision relating to the inheritance of property, to the right of the child to come within the provisions of the statutes of descent and distribution, or to the disposal of property by will, and therefore we cannot see the applicability of that authority.

It is a well-settled principle of equity doctrine that one who seeks for the specific performance of a contract must have an equitable interest in the subject-matter, of a definite nature, and that it must be of such character that he could assign the equitable interest to another and thus complete the legal title. It must be of such definite character that it is ascertainable by description in the contract at bar. Even a natural-born child is not entitled to specific performance of a contract as an heir at law for the possession or title to lands as such heir, and if such a person is not entitled to specific performance how much less is one whose status rests upon doubtful legal adoption! Parents are not compelled to will property to children, or to convey it to them. They have no more legal rights than any one else, except under the laws of descent and distribution. In any event, the equity must be in something definite. It must be tangible. It must be capable of transfer in the case at bar.

There is here neither a verbal nor a written contract which shows the plaintiff in error to have an equitable or other title capable of transfer. So far as the contract is concerned, there are no tangible rights with respect to heirship in existence even at the time of the execution of the contract, and there is no reference to any property which might come into possession or ownership at a later date. It is impossible to enforce specific performance of a right that does not exist and which does not appear in tangible or corporeal form, and this is the weakness of the contract in question.

As was said in Newbold v. Michael, 110 Ohio St. 594,144 N.E. 715, where the court quotes from Kling, Admr., v. Bordner,65 Ohio St. 86, 61 N.E. 148, as follows:

"To make a valid contract to leave an estate including real property to another by will, it is not only necessary that the contract, or a memorandum thereof, shall be in writing, signed for the purpose of giving it authenticity as an agreement, but the terms of the agreement must be expressed with reasonable certainty in the writing, and it must contain a sufficiently definite identification of the property to be so disposed of."

Holding these views, the judgments of the lower courts are hereby affirmed in the two error proceedings set forth above, and in the appealed case a decree may be entered for plaintiffs.

Judgments and decree accordingly.

LEVINE, P.J., and VICKERY, J., concur.