Estate of Williams, Matter of

• Decision Date: 20 January 1960
• Docket Number: No. 9093,9093
• Parties: d 83 In the Matter of the ESTATES of William Robert WILLIAMS, aka William R. Williams and Sarah Corless Williams, Deceased. Gladys Williams, aka Tania Karol, Petitioner and Appellant.
• Court: Utah Supreme Court

Page 683

348 P.2d 683

10 Utah 2d 83

In the Matter of the ESTATES of William Robert WILLIAMS, aka William R. Williams and Sarah Corless Williams Deceased Gladys Williams, aka Tania Karol, Petitioner and Appellant.

No. 9093.

Supreme Court of Utah.

Jan. 20, 1960.

D. M. Amoss, Bryce E. Roe, Salt Lake City, for appellant.

Leonard W. Elton, Salt Lake City, for respondent.

WADE, Justice.

Gladys Williams, also known as Tania Karol, appeals from a summary judgment in favor of Inez Williams Warshaw, the administrator of the estate of her parents, William Robert Williams and Sarah Corless Williams, deceased. Gladys is the daughter of Cora and William Carroll who were married but living apart when she was born. When Gladys was about three weeks old her mother consented to the Williamses taking her temporarily. Since then the child was never returned to the custody of her parents or either of them, but was raised and treated as the child of the Williamses.

Gladys contends that she has shown that she could produce prima facie proof by circumstantial evidence of a contract to adopt her between the Williamses and her mother, that her mother fully performed her part of the contract and the Williamses fully performed their part of the contract except they failed to obtain a decree of adoption. Under the doctrine that equity regards as done what should have been done, she contends that as a means of specific performance she should be awarded the same share of the Williamses estate as she would have been entitled to had they fully performed their contract and fulfilled their agreement to adopt.

Although we have never decided this exact question we have required specific performance of contracts in contemplation of death, where a deceased person has failed to devise, transfer or convey certain property in accordance with an agreement for services which has been fully performed by the other party. ¹ It is generally recognized that where a child's parents agree with the adoptive parents to relinquish all their rights to the child in consideration of the adoptive parents' agreement to adopt such child, and to care and provide for it the same as though it were their own child, and such agreement is fully performed by all parties connected with such contract except there is no actual adoption, the courts will decree specific performance of such contract and thereby award to the child the same distributive share of the adoptive parents' estate as it would have been entitled to had the child actually been adopted as agreed. ² A contract to adopt the same, as other facts, may be proved by circumstantial evidence, but such evidence must be clear and convincing. ³ Some allowance, however, should be made for the fact that all the parties to such contract are dead, and the child was an infant when the contract was made. As was said in Roberts v. Roberts: ⁴

'The argument by which we are asked to reverse the decree is that there was no direct or 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.'

Following is a brief summary of the facts Gladys claims she can prove: When about three weeks old, with her mother's consent she was placed in the home of the Williamses for care until the mother was able to care for her. About a year later the mother went to the Williamses home to get Gladys but the Williamses objected, telling her that they had come to love her as their own child, that Mrs. Williams was in delicate health, that she had lost a child and was unable to bear more, and that they feared for her health if she lost Gladys; thereby she induced the mother to leave her with them under their promise to raise, care for and treat Gladys in all respects as their own child. On March 13, 1913, when Gladys was about three years old her mother...