Copelan v. Monfort
| Decision Date | 14 June 1922 |
| Docket Number | 2851. |
| Parties | COPELAN ET AL. v. MONFORT. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
"A parol agreement by a person to adopt the child of another as his own, accompanied by a virtual, though not a statutory adoption, and acted upon by all parties concerned for many years 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 undisposed of by will."
Under the facts of this case the plaintiff can bring her suit in her individual capacity against her coadministrators to recover her interest in the property in controversy.
Such an equitable action as set out in the first headnote is maintainable by the plaintiff in her own name against the administrators of the obligor.
One in peaceable possession of property is neither guilty of laches nor barred by the statute of limitations from resorting to a court of equity in order to enforce his right to the legal title, where there is no assertion of adverse claim thereto and no fact or circumstance to put plaintiff on notice of such claim.
A plaintiff may embrace in his petition as many counts as he sees proper, provided all the counts set forth similar causes of action of a similar nature, and each count sets forth a complete cause of action.
The petition is not open to the objection that it is multifarious.
The petition set out a good cause of action.
Additional Syllabus by Editorial Staff.
Where K. by parol agreed to adopt plaintiff, and there was a virtual, though not statutory, adoption, and after her death K.'s only son and heir recognized plaintiff's rights and permitted her to remain in possession jointly with him, a suit to enforce the adoption agreement held maintainable after the heir's death against his administrators without joining as a party any administrator of K.
An agreement by K. with plaintiff's father to adopt her was supported by sufficient consideration where she left her father's home while a minor and lived with K. as an adopted child, performing such services as an own child would during K.'s life.
Error from Superior Court, Greene County; Jas. B. Park, Judge.
Suit by M. E. Monfort against E. W. Copelan and others administrators. Judgment for plaintiff on demurrer, and defendants bring error. Affirmed.
Miss Mildred E. Monfort brought her equitable petition, in two counts, against E. W. Copelan and B. P. Kimbrough as administrators of A. A. Kimbrough, deceased, and in the first count alleged substantially the following:
Plaintiff is the daughter of Alexander Monfort and his wife, Elizabeth Bass Monfort. Plaintiff's father died in July, 1894, and her mother died on December 10, 1913. Plaintiff lived with her father and mother at their home in Greene county from the time of her birth until she was 18 years of age, when she left her home to become a member of the family of Mrs. Sallie A. Kimbrough, as hereinafter set out. On July 17, 1881, Alexander Kimbrough died intestate in Greene county, leaving a considerable estate, consisting of lands and personal property, and as his only heirs at law his wife, Sallie A. Kimbrough, and his minor child, A. A. Kimbrough, defendants' intestate, who at the time of his father's death was between 6 and 7 years of age. Shortly after the death of Alexander Kimbrough, Sallie A. Kimbrough, his widow, who was the sister of the plaintiff's mother, proposed to plaintiff's parents to adopt one of the girls of their family, expressing a preference for plaintiff. Plaintiff's parents expressed to Mrs. Kimbrough their reluctance to consent to her proposal, but promised to consider it; and accordingly, in November, 1881, Mrs. Kimbrough again urged upon plaintiff's parents, as well as plaintiff herself, her desire to adopt her, and the father of plaintiff and Sallie A. Kimbrough agreed that plaintiff should become the adopted child of Mrs. Sallie A. Kimbrough, and plaintiff's father released to Mrs. Kimbrough the sole and exclusive care, custody, and control of plaintiff upon the promise of Mrs. Kimbrough, in consideration of her adoption, to take and keep her as her own child and do a child's part by her, with all the rights of a child, including the right of inheritance. In compliance with this agreement, Sallie A. Kimbrough took the plaintiff in November, 1881, with her to her home, where she remained as a member of her family and was treated as such until the death of Sallie A. Kimbrough on March 4, 1911.
At the time plaintiff left her home and entered that of Mrs. Kimbrough under the circumstances above stated, she was a minor 18 years of age. After plaintiff became a member of Sallie A. Kimbrough's family, plaintiff gave to her her constant companionship and affection and assisted in all the housework and rendered such personal services as a dutiful child can render to a mother, and, as Sallie A. Kimbrough advanced in years, cared for her as a daughter should, and relieved her of all the cares and worries of housekeeping. Plaintiff never married, but devoted her life to Sallie A. Kimbrough and her family, to the exclusion of every conflicting interest. She did not return to her home after she left it in November, 1881, save for an occasional visit. At the time plaintiff entered the home of Sallie A. Kimbrough, her son, A. A. Kimbrough, was a child between 6 and 7 years of age, and plaintiff virtually raised him, and the deepest affection and love grew up between them, which continued until the time of his death. Sallie A. Kimbrough did not take any formal steps to adopt plaintiff by court decree, but she often declared to plaintiff and others that plaintiff was her adopted child and a member of her family. Plaintiff was paid nothing for her services to Sallie A. Kimbrough, but she performed them because of her love and affection for her foster mother and A. A. Kimbrough, relying on the agreement hereinbefore stated between plaintiff's father and Sallie A. Kimbrough with respect to her adoption.
At the time of Sallie A. Kimbrough's death she was possessed in her own right of considerable real and personal property described in the petition. On the death of Alexander Kimbrough Sallie A. Kimbrough was appointed his administrator, and in the administration of his estate in the court of ordinary of Greene county 1,748 acres of land as the property of Alexander Kimbrough were divided between his widow and her son, A. A. Kimbrough. A. A. Kimbrough received as his portion of the estate 1,207 3/4 acres, described in the petition. Sallie A. Kimbrough died intestate. No administration was had on her estate, all of her debts have been paid, and no administration thereon is now necessary. On the death of Sallie A. Kimbrough, plaintiff and A. A. Kimbrough entered jointly into possession of all the property of which she died possessed, and so remained in possession until the death of A. A. Kimbrough on October 29, 1919, under the circumstances hereinafter related, since which time plaintiff has continued in possession of the real estate described in the petition as the home place. Immediately after the death of Mrs. Kimbrough plaintiff contemplated, and so informed A. A. Kimbrough, returning to her former home with her mother, Mrs. Elizabeth Monfort, who was then in life. To this course A. A. Kimbrough objected, saying that he had no one to take care of a home, that he recognized that plaintiff was entitled to a half interest in the home place where his mother lived and died, as well as in the other property left by his mother, and that he did not wish the property divided or sold and the home broken up; and he urged petitioner to remain in her adopted home, and promised her that, if she would continue to live as she had been as a member of the family and keep house for him and his manager he would give to her by deed or will all his interest in the home place if he died first. Plaintiff accepted this offer, and continued to live at the home place after the death of Sallie A. Kimbrough until the time of the filing of the present suit.
While the possession of the property, real and personal, left by Sallie A. Kimbrough at her death was jointly in the plaintiff and A. A. Kimbrough from March 4, 1911, to October 29, 1919 plaintiff intrusted A. A. Kimbrough with the sole management of the same upon the assurance by A. A. Kimbrough that he would devise to her from his own separate property more than enough to cover her interest in any of the property formerly belonging to his mother which they shared in common that might be sold or used by him, as well as her share of the rents and profits of the property. Relying on these promises by A. A. Kimbrough, in whom she had the fullest confidence, and whom she had practically raised from a child, and whose every interest and want she had ministered to, both in the lifetime of his mother and ever since, she did not insist either upon a division of the home place or any other property left by Sallie A. Kimbrough at the time of her death, nor a settlement with him of her share of the rents and profits thereof. Plaintiff trusted implicitly in the promises of A. A. Kimbrough that he would protect her in all of her interests in the manner hereinbefore stated; and accordingly she remained on the home place and managed the domestic affairs thereof as she had agreed to do, and left the business management of the property in the hands of A. A. Kimbrough until his death. Plaintiff alleges her belief, based upon his assurances and her knowledge of his character, that A. A. Kimbrough fully intended to perform his promises, but he died at the early age of 45, intestate, and without, so far as plaintiff knows or is informed, making any provision for her...
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