Burdick v. Grimshaw

• Decision Date: 07 September 1933
• Citation: 168 A. 186
• Parties: BURDICK v. GRIMSHAW et al.
• Court: New Jersey Court of Chancery

168 A. 186

BURDICK

v. GRIMSHAW et al.

Court of Chancery of New Jersey.

Sept. 7, 1933.

Syllabus by the Court.

1. Oral agreements to adopt when based upon a sufficient consideration, whether associated with, or divorced from, a provision to provide for the adoptive child by will or otherwise, will, in proper instances, be decreed to be specifically performed.

2. The implied agreement arising from an agreement to adopt, not consummated by a formal legal adoption, but fully performed by the child, is that such child should receive a child's share of the estate of which his foster parent dies possessed and undisposed of by will or otherwise.

3. The right of inheritance of the adoptive child in those instances will be enforced to the extent of decreeing that such child occupies in equity the status of an adopted child, entitled to the same right of inheritance, as if he were a natural born child.

4. Oral adoption agreements are to be regarded with grave suspicion when sought to be enforced after the death of the adoptive parent, and are to be subjected to close scrutiny and permitted to stand only when established by evidence that is clear, cogent, and convincing, leaving no doubt as to their actual making or existence.

5. A court of equity—when to do otherwise would result in palpable injustice— should unhesitatingly decree an adoption and its resultant rights of inheritance, where no formal statutory adoption has been effected during the lifetime of the adoptive parent, but it should, however, always require that the adoption agreement be first established by proof of the type and character required by law.

6. An accounting in equity cannot be demanded as a matter of right or course but only when the existence of a fiduciary or trust relation, or an intricate or complicated account, or a need of discovery, is shown.

7. A parent or step-parent standing in loco parentis to the stepchild is, until its emancipation, entitled to that child's earnings, even after its majority.

Suit by Clarence Burdick against John Grimshaw, Jr., administrator of the estate of Joseph E. Senger, deceased, and others.

Decree dismissing the bill.

John O. Benson, of Paterson, for complainant.

Henry C. Whitehead, of Passaic, for defendants Jacques Emile and Louis Senger.

LEWIS, Vice Chancellor.

In 1891, complainant's mother, the widow of Charles H. Burdick, his father, met and married Joseph Senger, who, on January 26, 1930, died intestate, without issue, and leaving him surviving, besides complainant, two nephews, both of whom are parties defendant herein; his wife having predeceased him in 1917.

The bill of complaint substantially alleges that Joseph Senger, by agreeing to adopt) complainant, take him into his home, and look after him as a father, induced complainant's mother to marry him and to provide the money necessary to furnish their home and stock their proposed grocery store, and that said agreement, in so far as same was possible of performance on complainant's part, was fully performed by him. Upon the strength of these allegations, complainant prays for a decree of specific performance of the alleged adoption agreement therein mentioned, to the end that he may be decreed to be entitled to the whole of his deceased stepfather's estate.

While he concedes that no formal legal adoption was ever effected, complainant, nevertheless, contends that his right to the relief sought is not precluded for want thereof. In support of his contention, he, in addition to the alleged oral adoption agreement, relies upon these facts: First, that, in order to make his home with his mother and stepfather, he, of necessity, had to leave his aunt with whom he had been living at Syracuse ever since the death of his father; second, that he made this "sacrifice" and entered the household of his mother and stepfather shortly after their marriage, when he was but seven years of age; third, that he continued to live there with them until about 1913, when, at the age of twenty-nine, he married and established a home of his own; and, lastly, that during all of this time his stepfather always treated him with all the regard and affection of a son, whom he, in turn, always treated and regarded as a father.

Defendants, however, say that, notwithstanding the foregoing, this court is without power to grant complainant the relief asked, asserting, as they do, that there can be no decree for the specific performance of an oral adoption agreement. An examination of the cases, however, establishes that the better reasoning and the substantially unanimous current of authority is quite to the contrary.

From a very early date, the courts of our state have, where such are based upon a sufficient consideration, upheld the validity and enforceability of oral agreements to devise or bequeath property, and, in proper cases, have decreed their specific performance. In so doing, they have consistently rejected and refused to recognize the oft-asserted objection that to do so would be tantamount to enabling one to make a disposition of his property, to take effect at or after his death, without regard to, and even in direct contravention of, the express inhibitions and requirements of both the Statute of Frauds (2 Comp. St. 1910, p. 2610, § 1 et seq.) and the Wills Act (4 Comp. St. 1910, p. 5861, § 1 et seq.).

The trend of our decisions establish, as was said in Johnson v. Hubbell, 10 N. J. Eq. 332, 66 Am. Dec. 773, that "there can be no doubt but that a person may make a valid agreement binding himself legally to make a particular disposition of his property by last will and testament." The principles there enunciated have been approved and followed with practical unanimity by all of the subsequent adjudications in point. Ackerman v. Ackerman's Executor, 24 N. J. Eq., 315, affirmed Id., 24 N. J. Eq. 585; Young v. Young, 45 N. J. Eq. 27, 16 A. 921; Young v. Young, 51 N. J. Eq. 491, 27 A. 627; Vreeland v. Vreeland, 53 N. J. Eq. 387, 32 A. 3; Riley v. Allen, 54 N. J. Eq. 495, 35 A. 654; Duvale v. Duvale, 54 N. J. Eq. 581, 35 A. 750; Winfield v. Bowen, 65 N. J. Eq. 636, 56 A. 728; Clawson v. Brewer, 67 N. J. Eq. 201, 58 A. 598; Lawrence v. Prosser, 88 N. J. Eq. 47, 101 A. 1040; Antonsanti v. Van Brunt, 140 A. 276, 6 N. J. Misc. 83; Salomonsson v. Olofsson, 105 N. J. Eq. 87, 147 A. 116.

To escape the force and effect of those principles, defendants attempt to differentiate between those cases and the one at bar by alluding to the fact that the agreements there involved were associated with, while the one at bar is divorced from, a provision to adopt the recipient of the bounty thereunder. They, however, utterly fail to indicate wherein there exists any legal or equitable line of demarcation, as respects the enforceability of the contractual property rights secured under either of these two types of agreements. A mere consideration of the attempted differentiation of itself refutes the possible existence of any real difference, and leads to the inescapable conclusion that any such fanciful distinction is but artificial, unreal, and without difference in fact. Facts rather than mere subtle, deceptive, or illusory distinctions must govern and control the judgment.

Notwithstanding the recognition and reaffirmation, in those cases, of the court's power to decree specific performance of oral agreements of the character there involved, defendants contend that, inasmuch as the one here involved is associated with an adoption provision, this court is divested of, or precluded from, exercising its power to decree specific performance. No good reason, however, has been suggested, nor does any appear, why the possession and exercise of this ancient and inherent power of a court of equity should be made to depend upon so uncertain and unsatisfactory a test as, at best, may be afforded by the far-fetched, baseless, and nonexistent distinction here attempted to be drawn.

The mere inclusion of a provision to adopt in an agreement to devise or bequeath property should not, and cannot, ipso facto, divest a court of equity of this inherent power, the very possession of which is of almost equal antiquity with that of the court itself. Van Dyne v. Vreeland, 11 N. J. Eq. 370; Van Duyne v. Vreeland, 12 N. J. Eq. 142; Van Tine v. Van Tine (N. J. Ch.) 15 A. 249, 1 L. R. A. 155; McTague v. Finnegan, 54 N. J. Eq. 454, 35 A. 542; Salomonsson v. Olofsson, 105 N. J. Eq. 87, 147 A. 116; D. Girolamo v. DiMatteo, 108 N. J. Eq. 592, 156 A. 24; Ferrando v. Casella, 113 N. J. Eq. lit), 165 A. 726, 727. In each of those cases the agreement for the disposition of the property was coupled with a provision to adopt the recipient, and in each of them the right of the adoptive child to specific performance was recognized and upheld.

The courts of our sister states present a myriad of cases holding to like effect: Snyder v. Shuttleworth, 25 Ohio Cir. Ct. Rep. (N. S.) 545; Wright v. Wright, 69 Mich. 170, 58 N. W. 54, 23 L. R. A. 196; Chehak v. Battles, 133 Iowa, 107, 110 N. W. 330, 8 L. R. A. (N. S.) 1130, 12 Ann. Cas. 140; Crawford v. Wilson, 139 Ga. 654, 78 S. E. 30, 44 L. R. A. (N. S.) 773; Odenbreit v. Utheim, 131 Minn. 56, 154 N. W. 741, L. R. A. 1916D, 421; Fisher v. Davidson, 271 Mo. 195, 195 S. W. 1024, L. R. A. 1917F, 692; Middleworth v. Ordway, 191 N. Y. 404, 84 N. E. 291; Anderson v. Anderson, 75 Kan. 117, 88 P. 743, 9 L. R. A. (N. S.) 229; Winne v. Winne, 166 N. Y. 263, 59 N. E. 832, 82 Am. St. Rep. 647; Doppmann v. Muller, 137 App. Div. 82, 114 N. Y. S. 620, 122 N. Y. S. 1126, affirmed 208 N. Y. 599, 102 N. E. 1101; Tuttle v. Winchell, 104 Neb. 750, 178 N. W. 755, 11 A. L. R. 814.

It is now firmly established that an oral agreement to adopt, where there has been a full and faithful performance on the part of the adoptive child, but which was never consummated by formal adoption proceedings during the life of the adoptive parent, will, upon the death of the latter, and when equity and...