Walsh v. Fitzgerald

Appellants contend that adoption was unknown to the common law; that it exists only by statutory enactment; and that the adoption proceedings in the instant case being ineffectual, plaintiff cannot claim a right to an inheritance as an adopted child. This court has recognized that adoption did not exist at common law. Quinn v. Quinn, 5 S.D. 328, 58 N.W. 808, 49 Am. St. Rep. 875; Henry v. Taylor, 16 S.D. 424, 93 N.W. 641; Calhoun v. Bryant,28 S.D. 266, 133 N.W. 266. The precise question whether a contract to adopt followed by a virtual adoption may entitle the child to the right of inheritance has not been decided by this court. In an annotation in 27 A.L.R. 1327, it is stated: "While the cases are not in entire harmony, in most jurisdictions contracts to adopt, not performed by effectual adoption proceedings during the life of the adoptive parent, will, upon the latter's death, be enforced to the extent of decreeing that the child occupies in equity the status of an adopted child, or, at least, is entitled to such right of inheritance from the estate of the adoptive parent as a natural child would enjoy, where the child in question has fully and faithfully performed the duties of a child to the adoptive parent, and the circumstances require the relief as a matter of justice and equity."

Without determining whether this view should be adopted, it may be conceded for the purpose of this appeal that there can be no adoption which will confer a right of heirship unless it be brought about by statutory procedure. A different question is presented if the contract as plaintiff contends, and as the trial court found, expressly provided not only that she be adopted, but that she receive the property of the deceased. The right of inheritance would be determined not by the law of descent, but by the contract.

It must be admitted that deceased in good faith intended to adopt plaintiff as her own child. The petition filed by her in the county court recites that plaintiff possessed no property and that petitioner desired to provide "for the care and comfort of the child by making the child her heir." Though this is not evidence in itself of a contract, it is consistent with the claim of the plaintiff and when considered with testimony as to conversations between deceased and Thomas Walsh, the father of the plaintiff, and the conduct of the parties, the evidence in my opinion is sufficient to sustain the findings of fact.

I am authorized to state that SMITH, J., concurs in this opinion.