Ezell v. Mobley

Hines, J.

1. The special demurrer to the caveat does not raise the question that the eaveatrix should be required to allege specifically whether she claimed as an heir at law of the testatrix by legal adoption or by virtual adoption; but the special demurrer raises the question that one who claims as heir at law of the testatrix by virtual adoption can not caveat the will of the testatrix. By her caveat the eaveatrix bases her right to contest the probate of the will of testatrix on the ground that she had been virtually adopted by testatrix; and in passing upon the caveat we shall treat her right to protest the will as based upon her virtual, and not upon her legal adoption.

2. The parol obligation to adopt the child of another as his own, accompanied by a virtual though not a statutory adoption, and acted on by both parties 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 if the latter dies without disposing of his property by will. Crawford v. Wilson, 139 Ga. 654 (78 S. E. 30, 44 L. R. A. (N. S.) 773); Heery v. Heery, 144 Ga. 467 (87 S. E. 472); Lansdell v. Lansdell, 144 Ga. 571 (87 S. E. 782), Rahn v. Hamilton, 144 Ga. 644 (87 S. E. 1061); Richardson v. Cade, 150 Ga. 535, 538 (104 S. E. 207); Copelan v. Monfort, 153 Ga. 558, 565 (113 S. E. 514); Ansley v. Ansley, 154 Ga. 357 (114 S. E. 182).

3. A person claiming an interest in the estate of a testatrix, by reason of a virtual adoption, has such an interest in the estate as will authorize him to file a caveat to the will of the testatrix, when by the probate of such will he will be deprived of such interest. A contrary holding would deny to a party at interest in the estate, other than as heir, an opportunity to attack the probate, and thereby as against such party make the probate conclusive, thus defeating his interest in the estate of the testatrix. Hooks v. Brown, 125 Ga. 122 (53 S. E. 583); Churchill v. Neal, 142 Ga. 352 (82 S. E. 1065); Redfearn on Wills, 210, § 117.

4. This ruling is not in conflict with the principle that the contract to adopt is not self-operating; that heirship does not grow out of it; that the right to take an estate as an heir at law exists only by operation of law; and that a person claiming by virtual adoption can only enforce his claim through a court of equity. Pair v. Pair, 147 Ga. 754 (95 S. E. 295). Nor is our ruling in conflict with the principle that upon an appeal by consent, from the court of ordinary to the superior court, of a proceeding to probate a paper as a will, the latter court becomes quoad hoc a probate court, and is limited to the issue of devisavit vel non, and is without jurisdiction in the exercise of its equity powers to determine the equitable right of a virtually adopted child to an interest in the estate of the foster parent. Field v. Brantley, 139 Ga. 437 (77 S. E. 559). These rulings do not prevent a person from alleging and proving her adoption by another, whose alleged-will is offered for probate, for the purpose of showing that she has such an interest in the estate of the foster parent as will entitle her to contest the probate of such instrument which wholly excludes her from participation in the estate.

5. The issue as to whether or not the caveatrix had been virtually adopted by the testatrix was submitted to the jury trying the issue of devisavit vel non; and the jury was instructed by the court that, if they should And against her virtual adoption by the testatrix, they should find against the caveat. This was proper procedure. Varnedoe v. Cousins, 148 Ga. 229 (96 S. E. 320).

6. The court did not err in overruling the other grounds of the general and special demurrers.

7. Counsel for the propounder requested the court to sequester the witnesses. Counsel for the caveatrix requested the court to permit the husband of the caveatrix to remain in court, to assist her counsel in the trial of the case. To this the propounder objected. The court permitted the husband to remain in court, but required that he should be sworn as the first witness for the caveatrix, which was done. Held, that it was within the discretion of the trial judge to permit the husband of the caveatrix to remain in the court-room to aid her counsel in the trial of the case; and there was no abuse of this discretion in this case, requiring the grant of a new trial, especially as the court required him to be sworn as the first of the witnesses for the caveatrix. Central R. Co. v. Phillips, 91 Ga. 526 (17 S. E. 952); City Electric Ry. Co. v. Smith, 121 Ga. 663 (49 S. E. 724).

8. In the second, third, fourth, and fifth grounds of the amendment to his motion for new trial the propounder complains of the admission of oral and documentary evidence over his objection. These grounds do not set out such evidence literally or in substance. Each ground refers to the pages of the brief of evidence where such evidence can be found. It is now the well-settled rule that these grounds raise no questions for decision by this court. Duncan v. Campbell, 154 Ga. 824 (115 S. E. 651).

9. In the sixth ground of this amendment the propounder alleges that the court erred in permitting a witness to testify in behalf of the caveatrix, over his objection that the testimony was irrelevant, incompetent, and hearsay, as follows: “I am an evangelist, and I am going to be free to say that I have been east, west, north, and south, and never in my life have I had a more favorable impression made upon me than Brother and Sister Mobley have made as being a perfect type of a perfect Christian gentleman and lady.” This evidence was part of a conversation between the testatrix and the witness. In this conversation the testatrix stated to this witness that she was fearful that her daughter (caveatrix) and son-in-law (husband of caveatrix) would poison her. This evidence, objected to by propounder in this ground, was the reply of the evangelist to this statement of the testatrix, who then said, “Well, if you could hear some of my relatives talk in Montieello, you might change your mind.” Propounder lived in Montieello. Standing alone this evidence was inadmissible, but as it was a conversation between the witness and testatrix, and was necessary to explain her statement in reference to the cause of her fear of being poisoned by the caveatrix, we do not think it was irrelevant.

10. In the seventh ground of the amendment to his motion for a new trial the propounder alleges that the court erred in permitting a witness for the caveatrix to testify that the testatrix said to her that the caveatrix was her legally adopted daughter. Propounder objected to this testimony, on the ground that no legal adoption, of the caveatrix had been proved, and that such testimony was incompetent and inadmissible, even if tending to show a virtual adoption, because such adoption would give the caveatrix no legal right to file a caveat to the will offered for probate. Under the ruling made in the third headnote, this objection was without merit.

11. In the eighth ground of this amendment the propounder alleges that the court erred in permitting a witness for the caveatrix, over his objection, to testify as follows: “One afternoon in May, this last May was a year ago, I was up at her house, and she and'I went in the rose garden and after we had gotten through her rose garden we went out on the back, that would be facing Mr. Mobley’s house, and the roses were in bloom all over the fence, and I spoke of it being such a lovely little • home, because it is a little brick bungalow, and she says, ‘Yes, it is just beautiful,’ and she says, ‘Miss Minnie, I don’t say it because it is my daughter and I raised her, but she is one of the most beautiful housekeepers that I have ever Known, and I expect that at my death that she will step into my shoes, come right into my house and take care of it just as she has taken care of this home.’ ” The propounder objected to this testimony, on the ground that it was a declaration by the testatrix antagonistic to the provisions of the will and in disparagement thereof, made two and a half' years after its execution. On admitting this evidence the court instructed the jury as follows: “Gentlemen, any declaration made by the alleged testatrix after the execution of this will would not be relevant testimony for the purpose of showing that she did not execute a will, but it would be admissible for this purpose: for the jury to take into consideration in passing on the question as to her mental condition at the time of the execution of the will.” Held, that this evidence was properly admitted on the issues made by the caveat, not as evidence of the facts therein stated, nor as evidence of undue influence, or mistake as to the conduct of the caveatrix, but solely for the purpose of showing the state of testatrix’s mind, and that she was then in such mental condition as to be unduly influenced by another. Purser v. McNair, 153 Ga. 405 (112 S. E. 648).

12. In the tenth ground of this amendment the propounder complains that the court erred in overruling his motion to rule out all the testimony, both oral and documentary, offered by caveatrix in support of her contention that there was a virtual adoption of her by testatrix and her husband, on the ground that such virtual adoption would give her no standing in court to file a caveat to the will sought to be probated. In the third paragraph above we have held against this contention of propounder, and it' follows that the court did not err in overruling this motion.

13. In the eleventh ground of his amended motion for new trial propounder complains that the court erred in giving long extracts from the charge to the jury, which embrace several legal propositions. One of these propositions was this: “If you are satisfied by a preponderance of the testimony in this case that in 1895 Mrs. Mobley was a child of about 5% years of age, if you are'further satisfied that at that time she was in the care and custody and control of one Mrs. Wolfe, and if you are further satisfied, gentlemen of the jury, that Mrs. Wolfe turned her over to Mr. H. H. Ezell and Mrs. Leila P. Ezell under a contract that they were to take her to their home and maintain and educate her as her child and to make her their heir, if that was the contract and agreement and if Mrs. Mobley has substantially complied with her part of the contract,-gentlemen of the jury, while she would not be a statutory adopted child of Mr. and Mrs. Ezell, she would be what the law calls an equitable adoption, and if that was the agreement and she has performed her part of the agreement, why then if there was such an agreement, it would be binding upon the parties; but if there was no such agreement, why then of course Mr. H. H. Ezell and Mrs. Leila P. Ezell would not be bound by it.” Another instruction was this: “Now the law defines what is a contract: A contract or an agreement is an agreement between two or more parties to do or not to do a certain thing; and when you go to your jury-rooms, you take all the written testimony in this case and you take all the oral testimony, gentlemen of the jury, and if under the principles of law you reach the conclusion that Mrs. Mobley was not the equitably adopted child of Mrs. Leila P. Ezell, why then it would be your duty to find against this caveat in the case, because, unless she was the equitably adopted child of Mrs. Leila P. Ezell, she would have no right in law to file a caveat to the proving of this will in solemn form. But, gentlemen of the jury, in the event you reach the conclusion under the law as given you in charge by the court, and this is entirely a question of fact for your consideration and for your determination, because the court does not pretend to express or to intimate to you that she was the equitably adopted child of Mrs. Leila P. Ezell— that is entirely a question of fact for your consideration and for your determination; but in the event, gentlemen of the jury, you reach the conclusion that she was the equitably adopted child of Mrs. Leila P. Ezell, under the law as given you in charge by the court applied to the facts and evidence in this case, then you take up the issues involved in the trial of this ease as made by the other parts of this caveat which will be out before you, and then the burden of proof in this case would be upon Mrs. Mobley to satisfy your minds by a preponderance of the testimony of the truthfulness of all the grounds of the caveat or one or some of the grounds of the caveat.” Propounder assigns error upon these instructions upon the grounds: (a) that a virtual adoption can not be proved by a mere preponderance of the evidence, but the proof of such adoption must be so clear, strong, and unambiguous as to leave no reasonable doubt in the minds of the jury that such virtual adoption was actually had; and (b) because the court erred in giving to the jury any instruction whatever in reference to what constitutes a virtual adoption and the rights of the caveatrix thereunder. Held: (1) In all civil cases the preponderance of the testimony is considered sufficient to produce mental conviction. Civil Code (1910), § 5730. Notwithstanding this declaration of' the Code, this court has ■ held that, to authorize specific performance of a parol contract for the sale of land or to authorize reformation of a written contract for such sale, the evidence must be so clear, strong, and satisfactory as to leave no reasonable doubt as to the agreement. Redman v. Mays, 129 Ga. 435 (59 S. E. 212); Williams v. Segers, 147 Ga. 219 (93 S. E. 215); Gordon v. Spellman, 148 Ga. 394 (96 S. E. 1006); Lloyd v. Redford, 148 Ga. 575 (97 S. E. 523); Allen v. Allen, 151 Ga. 287 (5) (106 S. E. 81). In Pair v. Pair, 147 Ga. 754, 757 (supra), Justice George said a parol contract of adoption would be enforced if “proof of it be strong, clear, and satisfactory.” Conceding that oral contracts of adoption must be so clear, strong, and satisfactory as to leave no reasonable doubt as to the agreement (1 C. J. 1379, §§ 28-30), is the same principle applicable if the contract is evidenced by writing ? This principle does not rest upon the ground that such contracts are in disfavor or are against public policy, but upon the ground that as they rest upon parol testimony they may be easily fabricated by designing persons, when the other party to the contract is dead. Middleworth v. Ordway, 98 N. Y. Supp. 10 (49 Misc. 74). This evil does not exist if the contract is evidenced by writing. For this reason the charge of the court complained of is not erroneous. (2) The other objection to this charge is without merit, in view of our ruling set out in the third paragraph above.

14. In the twelfth ground of this amendment the propounder alleges that the court erred in failing, when timely requested in writing, to charge the jury as follows: “I charge you that the execution of an instrument purporting to be a will can not be disproven by declarations made by the testatrix after she made the will.” It is insisted that the court should have given this principle in charge to the jury, because it had admitted certain alleged declarations of the testatrix antagonistic to and in disparagement of her will. In view of the instruction given by the court to the jury in admitting this testimony, which instruction is fully set out in headnote eleven, we do not think the failure of the court to repeat this instruction in his general charge requires the grant of a new trial.

No. 4664. August 12, 1925. Rehearing denied September 23, 1925.

15. There is some evidence to support the verdict; and as the same has received the approval of the trial judge, we will not disturb the same.

Judgment affirmed.

All the Justices concur, except Gilbert, J., dissenting. W. S. Florence, A. L. Miller, C. L. Bartlett, and Wallace Miller, for plaintiff. W. E. Key and A. 8. Thurman, for defendant.