Handley v. Limbaugh, 24644
| Decision Date | 20 June 1968 |
| Docket Number | No. 24644,24644 |
| Citation | 162 S.E.2d 400,224 Ga. 408 |
| Parties | Mary HANDLEY, Administratrix v. Marvin Lee LIMBAUGH. |
| Court | Georgia Supreme Court |
Syllabus by the Court
1. The complaint, which alleged a contract to adopt, and virtual adoption thereunder, and sought specific performance of such contract against the administratrix of deceased intestates, who were alleged to have made the contract, stated a claim upon which relief could be granted.
2. The jury was authorized to find that the contract to adopt had been made, and that there was a virtual adoption pursuant to it; and the proof measured up to the standard required, that it be clear, strong, and satisfactory.
3. The testimony as to the general reputation in the family of the relationship between the foster parents and the appellee was admissible over the only objections made, that it had no bearing on the contract itself, and was immaterial and irrelevant.
4. A parent having the right of custody of a child, who makes a contract to surrender the child for adoption by others is not incompetent, under Code § 38-1603(1), to testify as to the contract in an action by the child to enforce the contract.
(a) The testimony of declarations of the father of the appellee, the father being deceased at the time of the trial, that he had surrendered the appellee to the foster parents under their agreement to adopt him, were declarations against his interest, not made in view of pending litigation, and such testimony was admissible under Code § 38-309.
5. The reference by the appellee to his foster parents as 'father' and 'mother,' while giving testimony on the trial, was not a violation of the rule, under Code § 38-1603(1), that the opposite party in an action defended by the personal representative of a deceased person is incompetent to testify as to 'transactions or communications' with such deceased person.
6. The discharge of the appellee from the United States Navy was relevant to show that he served in the armed services of this country under the surname of his foster father, and not under the surname of his real father.
Malone, Drake & Malone, Thomas Wm. Malone, Albany, for appellant.
Lee & Hitchcock, Sara L. Hitchcock, Albany, for appellee.
This appeal by Mary Handley, administratrix of the estates of Claude and Luna Limbaugh, deceased, is from a judgment and decree declaring Marvin Lee Limbaugh entitled to inherit from the two deceased persons because of their contract to adopt him, and his virtual adoption by them. The appellant enumerates as error the denial of her motion to dismiss the petition, the denial of her motion for a directed verdict, the entry of the judgment on the jury verdict, and the admission of certain evidence at the trial.
1. The appellant asserts that the complaint did not allege the existence of a contract to adopt the complainant, and that it was therefore error to deny the motion to dismiss the complaint for failure to state a claim upon which relief can be granted.
'A parol obligation 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 and 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.' Crawford v. Wilson, 139 Ga. 654, 78 S.E. 30, 44 L.R.A.,N.S., 773; Richardson v. Cade, 150 Ga. 535, 538, 104 S.E. 207; Ansley v. Ansley, 154 Ga. 357, 114 S.E. 182; Stith v. Willis, 219 Ga. 62, 131 S.E.2d 620. An 'agreement to adopt' is an essential element of the contract which equity will enforce in an action to declare a person to be entitled to inherit as the 'virtually' adopted child of an intestate. Jones v. O'Neal, 194 Ga. 49, 52, 20 S.E.2d 585.
The complaint alleged that the complainant (appellee), Marvin Lee Limbaugh, was the son of Versey Mae Bryan and Homer C. Bryan, and that his mother died in May, 1926, when he was one year old. The allegations relating to the contract sought to be enforced are as follows:
It was alleged that Claude and Luna Limbaugh died intestate in a common automobile accident, that the appellant was appointed permanent administratrix of both estates, and that she refuses to recognize the right of the appellee to inherit the estates of his foster parents, and 'refuses to fulfill the terms of his foster parents' contract with Homer C. Bryan to adopt' him.
The allegations of the complaint plainly assert that the father of the appellee entered into an oral agreement with the foster parents to allow them to adopt the appellee, and a reasonable construction of the allegations is that the foster parents agreed to adopt him. All of the other essential elements of a virtual adoption case were alleged. The trial judge, therefore, did not err in refusing to dismiss the complaint for failure to state a claim upon which relief can be granted.
2. 'An oral contract of adoption must be definite and specific, based upon a sufficient legal consideration, and the proof of such contract must be clear, strong and satisfactory.' Ray v. Kinchen 166 Ga. 788(1), 144 S.E. 317; Chamblee v. Wayman, 167 Ga. 821, 828, 146 S.E. 851. The appellant asserts that the existence of a contract to adopt was not satisfactorily proved, and that her motion for directed verdict on this ground should have been granted.
Nathan Driskell, a brother of the deceased mother of the appellee, and half brother of Claude Limbaugh, testified that: His sister, Mrs. Homer Bryan, died in 1926, when he was about 16. The appellee was a few days more than one year old at that time, and there were two older children in the family. On the day that his sister was buried, his father and mother, Claude and Luna Limbaugh, and Homer Bryan were at the home of his parents, and he remembers overhearing a conversation as follows: That was all the witness could recall that they said, because he 'went on out to tend to the mules and stock on the outside.'
Homer Bryan, the father of the appellee, was dead at the time of the trial. H. B. Bryan, a cousin of Homer Bryan, was asked if Homer Bryan ever gave him a reason why he gave the appellee to the Limbaughs, to which he replied:
Mabel Bryan Edens, a relative of Homer Bryan, in whose home he had lived on numerous occasions, stated that she talked with Homer Bryan a lot about the appellee, and she stated: ...
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