Roberts v. Sutton

"They gave defendant their own name, and by their conduct, language, and treatment represented to him that he was their own son. He lived with them upon this understanding until some time past the age of majority. He had a right to rest and act upon the belief that he was the legal heir. So long as his reputed father and mother chose to let him repose in this belief, others had no right to interfere. Equity is clearly with the defendant, and, if relief cannot be granted, it must be because the strict rule of law interferes, and permits the accomplishment of an act of the greatest injustice. Unfortunately, the law in regard to adoption was found to be unconstitutional because the real object of the act was not expressed in its title. Each party acted in the undoubted belief that the defendant, upon the death of Mr. Wright, would take the property. Can equity give validity to such intention, in theabsence of express contract? I see no reason why it may not. Defendant rendered services upon the faith of his relationship. Those services were accepted in reliance upon such relationship, declared in the most solemn manner. * * * This is a case where,in my judgment, equity should declare that to be done which theparties clearly intended. I therefore concur in the opinion of my Brother LONG."

In re Firle's Estate, 197 Minn. 1 (265 N.W. 818), presents a set of circumstances similar to those at bar. The court held that a contract to adopt may be inferred from the conduct of the parties. In affirming a decree awarding the entire estate of decedent to the respondent who claimed by virtue of such agreement, the court said:

"The record does not show a contract to adopt expressed in words, but respondent relies upon a contract as evidenced by the facts surrounding his removal from the Bethany Home of Minneapolis, a home for orphan children, to the home of William Firle and his wife, Mary, the decedent, and the subsequent conduct and admissions of the parties. * * *

"From the time the Firles took the boy they continually referred to him as their son. On many occasions they announced to their friends in Chaska, where they lived for several years, that they had adopted him. He was taken to their church and baptized under the name of William Firle. They stated to the minister at that time that they had adopted the boy. They were careful not to let him know that he was an adopted child and not their own. William Firle took out a life insurance policy on the boy's life and designated himself in the application as `father.' They took steps to teach him a trade, and he turned over most of his earnings to his foster parents. * * * He took care of William A. Firle in his last illness and nursed Mary Firle during illness. The record is replete with instances indicating a strong affection between the Firles and respondent.

"`The introduction of a waif into a family of affluence speaks of the benevolence of the family that receives it; but its long continuance in the home, its treatment by its foster parents, and their well-established declarations as to its status with respect to their property may well support a finding that an agreement existed in that regard.' Middleworth v. Ordway, 49 Misc. 74 (98 N.Y. Supp. 10, 11).

"The facts set out above all indicate that there was an agreement to adopt respondent. They repeatedly stated that they had adopted him. The evidence all corroborates the existence of a contract to adopt between the Bethany Home and the Firles. We are of the opinion that the status of William as an heir was properly before the probate court and that conduct and admissions expressed a contract which created the relationship of parent and adopted child."

In Roberts v. Roberts, 138 C.C.A. 102 (223 Fed. 775), decided by the circuit court of appeals, eighth circuit, the plaintiff brought suit to enforce an alleged oral agreement by Charles J. Roberts, deceased, to adopt her as his child and to enforce her rights in his estate pursuant to such agreement. In affirming the decree of the trial court for plaintiff, the court said:

"Upon receiving plaintiff into his family, Mr. Roberts not only gave to her his own name, but the name of his mother. Her foster parents stated repeatedly, both orally and in writing, that they had adopted plaintiff as their child. They treated her as their child. She was baptized in their name. * * *

"The argument by which we are asked to reverse the decree is that there was no direct and clear evidence of an agreement to adopt at the time Myra J. Roberts was received into the family of Charles J. Roberts. There is good reason why such evidence is wanting. All of the parties to the transaction are dead, and Myra J. Roberts was herself a babe at the time of the adoption. It seems to us that in such a case it is not necessary that the court first have direct proof of the making of the contract, and then proceed forward from the contract thus established to the conduct evidencing its existence. We think it is possible to reverse that process, and if the statements and conduct of the adopting parents are such as to furnish clear and satisfactory proof that an agreement of adoption must have existed, then the agreement may be found as an inference from that evidence."

In Kay v. Niehaus, 298 Mo. 201 (249 S.W. 625), plaintiff sought specific performance of an alleged agreement to adopt her made by decedent in whose estate she sought to share. The proofs showed that decedent had told plaintiff and others that he had adopted her, that he called her his daughter and she called him "father," that the relationship of father and daughter was observed between them and that the plaintiff faithfully discharged the duties of a daughter. Decedent, in the first instance, had taken plaintiff under a contract of apprenticeship, but plaintiff contended that such contract had been abandoned in favor of an agreement to adopt. The court affirmed a judgment for plaintiff and said:

"If a contract to adopt can be shown by admissions, then the judgment nisi is correct as to the adoption of plaintiff. As stated, no witness testifies to an oral contract to adopt. All the parties are dead and the lips of plaintiff, if she knew anything, were sealed by the ruling of the trial court. First we have the fact that Niehaus (decedent) did not comply with the contract of apprenticeship, by sending the girl to the public schools, a circumstance tending to show that he was not acting under that contract. His conduct was inconsistent with that contract, but would be consistent with the control of an adopted child. His admissions, so thoroughly shown, justified the trial court to infer a previous contract to adopt. In other words, if a contract to adopt can be shown by acts, conduct and admissions, then the trial court was right. Under our rulings such a contract can be proven in that way."

From the facts and circumstances of the case, the statements and admissions of Doctor Carr, his conduct and that of plaintiff and her mother, an agreement to adopt may be inferred. We are in accord with the trial court's finding of an agreement to adopt plaintiff and that she is entitled to all the property of which Doctor Orra C. Carr died possessed the same as if she had been his sole and only heir at law.

In so holding we are mindful of our decisions in Albring v.Ward, 137 Mich. 352, Slattery v. Hartford-Connecticut TrustCo., 254 Mich. 671, In re White, 300 Mich. 378 (138 A.L.R. 1034), In re Bell's Estate, 310 Mich. 394 and In re Garlow'sEstate, 313 Mich. 402, in which we say that heirship by adoption is unknown to the common law, that adoption is purely statutory, having no common-law background, that to accomplish either there must be substantial compliance with the statute pertaining thereto, and that when the statute has not been or cannot be complied with the adoption will fail. These cases we do not consider applicable here. The distinction is clear. In the instant case the adoption proceedings are concededly void. The question presented is not what effect shall be given to the imperfect adoption proceedings, but, rather, what effect shall be given to the agreement to adopt. We do not hold that plaintiff was adopted, but, rather, that, under the agreement, she ought to have been adopted and that, therefore, with full performance of the agreement on her part, consisting of years of faithful service and filial devotion, she has acquired an equitable interest in the estate of Doctor Carr. A recognition of the validity of this distinction is apparent in the opinion inAlbring v. Ward, supra. We quote from the syllabus:

"Where a statute under which complainant was adopted was unconstitutional, and there was no contract between her and herfoster parents to make complainant their heir, other than that arising from the adoption proceedings, she was not entitled to share in the real estate of which her foster father died seized."

For an apt discussion of this same subject see, also, Fiske v. Lawton, supra, in which the court said:

"Respondent contends that `adoption was unknown at the common law, at least in any sense involving a right of inheritance, and it exists in common-law States only to the extent of and by virtue of statutory enactment and compliance therewith;' further, that the agreement alleged would under no circumstances work an actual adoption or enable the child to inherit from the Herricks, and specifically such follows under the laws of Ohio. For brevity, we will consider these claims collectively. Adoptions were unknown to the common law, but this is of no special significance. Courts of equity have enforced contracts like the one alleged, whether oral or written, with respect to property rights involved. Such was done in New Jersey, in Van Dyne v. Vreeland, 11 N.J. Eq. 370, as early as 1857, without statutory authority. This rule has since been followed in many jurisdictions. In Wright v.Wright, 99 Mich. 170 (23 L.R.A. 196), proceedings were taken to adopt a child pursuant to a statute subsequently declared unconstitutional. Nevertheless, the court, acting on the theory of an executed understanding for adoption and heirship, and the well-established principle that equity should declare that to be done which the parties clearly intended, decreed that title to the real property of the adopting father vested, by reason of the contract, at his decease, in the adopted son, `the same as if he had been the son.' In Chehak v. Battles, 133 Iowa, 107 (110 N.W. 330, 8 L.R.A. [N.S.] 1130, 12 Ann. Cas. 140), the same result was reached after an extended review of authorities, where there was an invalid statutory instrument of adoption. In Winne v. Winne, 166 N.Y. 263 (59 N.E. 832, 82 Am. St. Rep. 647), an agreement by a childless person with plaintiff's mother to make him, an infant, sole heir, was enforced after performance on his part, as to both real and personal property. See, also, Laird v. Vila, 93 Minn. 45 (100 N.W. 656, 106 Am. St. Rep. 420);Kleeberg v. Schrader, 69 Minn. 136 (72 N.W. 59); Grant v.Grant, 63 Conn. 530 (29 A. 15, 38 Am. St. Rep. 379); Lynn v. Hockaday, 162 Mo. 111 (61 S.W. 885, 85 Am. St. Rep. 480);Albring v. Ward, 137 Mich. 352; Burns v. Smith, 21 Mont. 251 (53 P. 742, 69 Am. St. Rep. 653); Van Tine v. Van Tine (N.J. Eq.) 15 A. 249 (1 L.R.A. 155); Kofka v. Rosicky,41 Neb. 328 (59 N.W. 788, 25 L.R.A. 207, 43 Am. St. Rep. 685). The great weight of authority is that such contracts are not unlawful or against public policy. See note, 88 Am. St. Rep. 869. Nor do we find the law otherwise in Ohio. Clark v. Bayer, 32 Ohio St. 299 (30 Am. Rep. 593), accords with the views stated. See, also, Gray v. Field, 19 Wkly. Law Bul. (Ohio) 121. In Wright v. Wright, supra, (99 Mich. 170) it is said the supreme court of Ohio in Shahan v. Swan,48 Ohio St. 25 (26 N.E. 222, 29 Am. St. Rep. 517), expressly recognizes the doctrines of Van Dyne v. Vreeland, supra, and kindred cases."

Decree affirmed, with costs to plaintiff.

CARR, C.J., and BUTZEL, BUSHNELL, SHARPE, BOYLES, REID, and NORTH, JJ., concurred.