Crum v. Fendig , 157 Ga. 528 ( 1924 )

Beck, P. J.

(After stating the foregoing facts.) We are of the opinion that the court properly sustained the general demurrer. The foundation of the plaintiff’s right of action must be looked for in the allegations showing her adoption by R. T. Clark. The allegations in which the adoption claimed is attempted to be shown are to be found in paragraph 6 of the petition. This paragraph is as follows: "Your petitioner shows' that she was the adopted child of the said R. T. Clark, deceased, in that, being of tender years, not exceeding three, she was taken into the home of the said R. T. Clark and reared by him, adopting his name and marrying with his consent in the name of Clark at the age of fifteen. At various times and places and during the time your petitioner was living with the said R. T. Clark, deceased, the said Clark did represent, contract, and agree that in the event of his death she would be amply provided for; and the said R. T. Clark did represent at various times and places, not only to your petitioner but to various other individuals, that he had adopted your petitioner as his child, and it was generally known that the necessary legal papers had been taken out with reference to such adoption, and that petitioner was the adopted child of the said R. T. Clark.” No allegation in this paragraph can be treated as alleging a valid contract of adoption. In its entirety this paragraph merely shows that the plaintiff, when a child of three years of age, was taken into the home of Clark and reared by him. The plaintiff herself could scarcely have entered into a binding contract at that age. The paragraph taken as a whole cannot be treated as one alleging that Clark made a contract with this child three years old. The word “adopt” in some form is used several times in this paragraph. It is alleged that the child adopted the name of Clark, and married with Clark’s consent in that name, when she was fifteen years of age. It is also alleged that at various times during the period through which petitioner lived with R. T. Clark the latter “did represent, contract, and agree that in the event of his death she would be amply provided for.” The allegation in this last quotation does not set up a contract to adopt, nor to give any certain part of his estate at his death, by will or otherwise, to petitioner. It is also alleged that Clark “did represent at various times and places, not only to petitioner but to other individuals, that he had adopted petitioner as his child, and it was generally known that the necessary legal papers had been taken out with reference to such adoption, and that petitioner was the adopted child of R. T. Clark.” No contract of adoption which, upon performance or part performance, could amount to what is sometimes called a virtual adoption is here alleged; but if this paragraph in any way lays a foundation for this suit, it is in the allegation that “the necessary legal papers had been taken out with reference to such adoption.” That, of course, refers to a statutory adoption; but the entire paragraph and other allegations in the petition show that there was no statutory adoption; that the petitioner is relying upon an equitable or “virtual” adoption, and the brief of counsel for plaintiff in error treats the petition as one setting forth a virtual adoption. But virtual or equitable adoption must be founded upon a contract and performance in accordance with the terms of the contract by the person claiming to have been adopted; and no contract is here found. Plaintiff in error relies largely upon the decision in the case of Crawford v. Wilson, 139 Ga. 654 (78 S. E. 30, 44 L. R. A. (N. S.) 773), and cases following it and laying down the same principle. The rights of the party claiming virtual adoption in that case grew out of a contract expressly alleged. In that ease it appeared that the plaintiff, Mrs. Wilson, when an infant three months of age, was carried to the house of Mrs. Puckett by the maternal grandmother of the plaintiff and turned over to the care and custody of Mrs. Puckett under an agreement by her mother and grandmother that Mrs. Puckett was to have the sole custody, services, and company of the child during the minority of the petitioner, in consideration of Mrs. Puckett’s agreement and promise to take petitioner and do unto her as her own child and “to adopt her as such, with all the rights of a child related to her as such by blood.” Performance of her duties as an adopted child was also alleged by the plaintiff. The court held, under these facts alleged and fully set forth in the petition, that it was a case of virtual adoption. Another important question decided in that case related to the right of the plaintiff, who was not a party to the contract upon which she predicated her claim to the relief, to bring the suit; and the court reached the conclusion, under the facts alleged, that plaintiff could maintain the suit. In’ other cases cited by plaintiff, which follow the ease of Crawford v. Wilson, supra, the fact that there was a contract of adoption is distinctly shown. We are of the opinion that the decision made in the Crawford v. Wilson case is sound, but we do not think the ruling should be extended; and to hold that the petition in the present case sets forth a cause of action entitling petitioner to the relief sought would be an extension of the principle of virtual adoption as announced in the case last referred to.

It follows from what we have said that the court did not err in sustaining the general demurrer to the petition.

Judgment affirmed.

All Justices concur, except