Ware v. Martin , 209 Ga. 135 ( 1952 )

209 Ga. 135 (1952) 70 S.E.2d 759

WARE
v.
MARTIN.

17814.

Supreme Court of Georgia.

Submitted April 14, 1952. Decided May 14, 1952.

Clement E. Sutton, Colley & Orr, and L. C. Groves, for plaintiff in error.

Earle Norman, contra.

ALMAND, Justice.

1, 3-6. These headnotes do not require any elaboration.

2. In Ware v. Martin, 209 Ga. 29 (70 S.E. 2d, 446), this court reviewed the verdict and judgment in a case wherein the present caveatrix sought by a petition in equity to have the court decree that she was the child of the testatrix by reason of a contract of adoption, in which case the jury found that she was such child. We set aside the order of the trial court denying a new trial, on the ground that there was not sufficient evidence to support the finding of the jury that there was a contract to adopt the caveatrix. We have carefully examined the evidence in the case now before us on this issue, and hold that it was wholly insufficient to show that any such contract ever existed on the part of the testatrix or her husband to adopt the caveatrix. The only evidence in the record in the present case in regard to the adoption of the caveatrix was the testimony of three witnesses. Mrs. Myrtle Bradford testified that she knew the testatrix at the time the latter was born, and that from the time the caveatrix was a small child until she married she lived with the testatrix and her husband. The witness visited in their home and heard the testatrix talk about the caveatrix. Her conversation was like any mother would say about her child. The testatrix referred to the caveatrix as "my baby" and "my daughter," but she never heard the testatrix say that she had a contract with caveatrix's parents to adopt her.

Mrs. Sue Morrow, a sister of the caveatrix, testified that the caveatrix was about one and a half years old when her mother died, and the witness and her father moved to North Carolina. The caveatrix lived with Mr. and Mrs. C. E. Keeter until her marriage. The witness heard the testatrix many times refer to the caveatrix as her daughter, and that she was given to her by the mother of Mrs. Martin, but never heard her speak of her as her adopted daughter.

The caveatrix testified that the home of Mr. and Mrs. C. E. Keeter was the only one she ever knew, she having lived with them until her marriage.

There is no evidence in the record that either Mr. or Mrs. C. E. Keeter ever made any contract or agreement with the parents of the caveatrix, or either of them, to adopt her. Taking all the evidence in this regard in the light most favorable to the caveatrix, all that it shows is that Mr. and Mrs. C. E. Keeter raised and cared for the caveatrix as if she was their daughter. This evidence is wholly insufficient to support the finding of the jury that the caveatrix was the child of the testatrix by reason of a contract to adopt.

For the reason pointed out above, and in the headnotes, it was error for the trial court to overrule the propounder's motion for a new trial as amended.

Judgment reversed. All the Justices concur, except Atkinson, P.J., Wyatt and Candler, JJ., who dissent.