Le Furgey v. Beck
Decision Date | 11 March 1943 |
Docket Number | 7 Div. 714. |
Citation | 244 Ala. 281,13 So.2d 179 |
Parties | LE FURGEY v. BECK et al. |
Court | Alabama Supreme Court |
Rehearing Denied May 13, 1943.
H.L. Anderton, of Birmingham, for appellant.
Scott & Dawson, of Ft. Payne, for appellee Beck.
The appeal is from a decree sustaining demurrers to a bill in equity, as amended. Pending the administration of the estate of J.P. Stanley, deceased, in equity, appellant, by leave of the court, filed a bill of intervention, with a view to establish her claim as sole heir at law of decedent, entitled to inherit the estate.
The proceeding may be termed a bill in the nature of a bill for specific performance of a parol contract entered into in 1912 between the decedent and persons standing in loco parentis to complainant, then eleven years of age, having neither father nor mother living, by which contract the deceased agreed to adopt complainant, and have her inherit his estate as an adopted child. The bill, by quite full averments, discloses that complainant was taken into the family of decedent treated by decedent and wife as their child, called their daughter, introduced and held out as their daughter; and that complainant, on her part, fully performed all the filial duties incident to the relation of parent and child until her marriage in 1919. It is further averred that for a few years after marriage, the family relation was continued, during which complainant's first child was born; that the child was loved and called a granddaughter, etc. Other averments are to the effect that after the removal of complainant with husband and family to another county, the affectionate relations continued, etc.
Two separate demurrers were interposed, one by respondent, W.M Beck, one time administrator of the estate of J.P. Stanley deceased; the other by respondent, H.R. Stanley, a nephew, the next of kin, and admittedly the sole heir unless complainant be awarded the estate as an adopted daughter, or entitled to inherit as an adopted daughter under the facts alleged.
The decree sustained both demurrers in one decree.
We consider, first, the demurrer interposed by the heir, H.R. Stanley, the respondent, whose real interest is involved. The demurrer challenges the bill on the ground that the statutory method for adoption of children by written instrument, duly acknowledged and recorded, is exclusive; that a parol contract to adopt a child is, therefore, void and unenforcible; on the further ground that as to real estate such contract is void under the statute of frauds; on the further grounds that the suit is barred by the statute of limitations, the rule of repose against stale demands, and laches disclosed on the face of the bill.
Much argument is addressed to these several questions. The holdings of this court in Prince v. Prince, 194 Ala. 455, 64 So. 906; Marietta v. Faulkner, 220 Ala. 561, 126 So. 635; Rivers v. Rivers, 240 Ala. 648, 200 So. 764; Prince v. Prince, 188 Ala. 559, 66 So. 27, and Manning v. Pippen, 95 Ala. 537, 11 So. 56, are much discussed with divergent views. Complainant presents at length the holdings of other courts. For present purposes we call attention to a general discussion of contracts to adopt children followed by full performance, etc., found in 2 C.J.S., Adoption of Children, § 26, p. 394, et seq., 1 Am.Jur. 629, et seq.
We deal first with still another ground of demurrer challenging the right of this complainant to come into equity to litigate the matters set up in her bill. The final amendment to the bill contains the following averments:
These averments, it appears, were designed to avoid the imputation of laches and estoppel raised by demurrer to the bill as theretofore amended.
Additional and special demurrers addressed to the bill as last amended read:
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...282 Ala. 295, 211 So.2d 139 (1968); Hartley v. Alabama National Bank of Montgomery, 247 Ala. 651, 25 So.2d 680 (1946); LeFurgey v. Beck, 244 Ala. 281, 13 So.2d 179 (1943). Waiver, on the other hand, is the voluntary and intentional surrender or relinquishment of a known right. See O'Neal v.......
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