Hardeman v. Ellis, (Nos. 5048, 5052.)

• Decision Date: 18 September 1926
• Docket Number: (Nos. 5048, 5052.)
• Citation: 162 Ga. 664,135 S.E. 195
• Parties: HARDEMAN v. ELLIS. ELLIS v. HARDEMAN.
• Court: Georgia Supreme Court

162 Ga. 664

135 S.E. 195

HARDEMAN

v.ELLIS.

ELLIS

v.HARDEMAN.

(Nos. 5048, 5052.)

Supreme Court of Georgia.

Sept. 18. 1926.

Rehearing Denied Sept. 30, 1926.

(Syllabus by the Court.)

[COPYRIGHT MATEIAL OMITTED.]

[COPYRIGHT MATERIAL OMITTED.]

(Additional Syllabus by Editorial Staff.)

Error from Superior Court, Bibb County; Malcolm D. Jones, Judge.

Suit by William Lee Ellis, Jr.. against Mrs. Gazalene M. Hardeman, as administratrix cum testamento annexo of Mrs. Gazalene Ellis. Judgment for plaintiff, and defendant brings error. Reversed on main bill of exceptions, with directions as to the cross-bill.

On October 14, 1924, William Lee Ellis, Jr., brought a suit for specific performance, and other relief, against Mrs. Gazalene M. Hardeman, as administratrix cum testamento annexo of Mrs. Gazalene Ellis. The petition was in two counts, and set forth in substance the following alleged causes of action:

In the first count it is alleged that the petitioner was born on August 11, 1870. His father was Hayne Ellis, and his mother Ida Lamar Ellis. Ellis' father was a brother of William Lee Ellis, Sr. His mother was a sister of Mrs. Gazalene Ellis, who was the wife of William Lee Ellis, Sr.

"William Lee Ellis, Sr., and his wife, had no children. At the time of petitioner's birth, or very soon thereafter, the said William Lee Ellis. Sr., and his wife, desiring to take petitioner and adopt him as their child, made a contract with petitioner's parents, by the terms of which petitioner's parents, on the one hand, agreed to surrender their parental rights in petitioner and to deliver petitioner into the custody and control of the said William Lee Ellis. Sr.. and his wife, and by the terms of which the said William Lee Ellis, Sr., and his wife, agreed to take petitioner into their home, adopt him and rear him as their own child, and leave to him all the property which they might own at the time of their respective deaths, he to come into possession of said property at the death of the survivor of them."

In pursuance of the contract, plaintiff's parents surrendered him, together with all their rights respecting him, to his uncle and aunt, and fully complied with the contract. In compliance with the contract, the uncle and aunt took petitioner into their home astheir child, had him christened at a church of their choice, which was of a different denomination from that of petitioner's parents, and named petitioner William Lee Ellis, Jr., for his foster father. Petitioner's foster parent did not legally adopt petitioner according to the statutory requirements, but did rear petitioner as their son, regarded and treated him as their son, and held him out to the world as their adopted son, to whom they had agreed to leave all their property. Petitioner from his earliest recollection regarded the said William Lee Ellis, Sr., and his wife, as his parents, demeaned himself as their son, and accorded to them the affection and obedience due from a child to its parents. Petitioner, from the time he was taken into their home, occupied the position of a child, and remained with them as their son from that time continuously until the death of William Lee Ellis, Sr., on May 27, 1902; and after his death petitioner continued to live with his foster mother as her son until her death on June 27, 1922.

Petitioner had business offers which would have carried him away from Macon, Ga., where he and his foster parents lived, but at their request petitioner gave up said business opportunities and remained with his foster parents as long as they lived. Petitioner's aunt, Mrs. Gazalene Ellis, had no property at the time of her marriage, and never subsequently acquired any property with her own means, her husband acquired all the property, and had title in her name, which policy he followed in compliance with said contract. The uncle died on May 27, 1902, leaving the aunt as sole heir, and no administration was ever had upon his estate. The aunt, Mrs. Gazalene Ellis, died on June 27, 1922, without carrying out her part of the contract by leaving to petitioner by deed or will all the property owned by her at the time of her death. On the contrary, she left what purports to be her last will disposing of her estate to other persons in large part.

In the second count it is alleged that the uncle and aunt of petitioner agreed with his parents, at or very soon after his birth, that if the parents would surrender their parental rights and control of petitioner they would adopt him as their son and rear him as their own child. The uncle and aunt took petitioner into their home, christened him in their church, one different from that of petitioner's parents, named him William Lee Ellis, Jr., for his foster father, and reared and regarded him as their own, though they failed to legally adopt him. It is further alleged:

"Petitioner from his earliest recollection regarded the said William Lee Ellis, Sr., and his wife, as his parents, demeaned himself as their son, and accorded to them the affection and obedience of a child to its parents. Petitioner, from the time he was taken into their home, oc cupied the status of a child, and remained with them as their son from that time continuously

until the death of William Lee Ellis, Sr., on May 27, 1902, and after his death remained with his foster mother, Mrs. Gazalene Ellis, as her son, until her death on June 27, 1922. * * * A short time before the death of William Lee Ellis, Sr., petitioner was offered a business opportunity in the city of Baltimore, Md., which he agreed to accept. Petitioner's foster parents, however, upon learning of his contemplated removal from Macon, insisted upon petitioner's rejecting the offer, and one night at their home they had a long conference with petitioner about the matter. William Lee Ellis. Sr., on that occasion said he was getting old and feeble; that his doctor had told him he could not live much longer; that he was then upon the point of going to Savannah, Ga., for rest and treatment, and might not ever be able to return alive; that he desired petitioner to give up the idea of leaving Macon, and to remain with his foster mother as long as she lived; and that, if he would do do, all the property owned by them would, at his wife's death, be left to petitioner, and it would therefore not be necessary for petitioner to go away to try to make money, because their property would be sufficient for him. Petitioner's foster mother on said occasion told petitioner that she wanted him to stay with her until her death, and agreed with petitioner that, if he would not go away from Macon to live, and would remain at home with her as long as she lived, she would at her death leave to petitioner all her property. Petitioner thereupon agreed, in consideration of the promises herein set forth, to give up said business opportunity at Baltimore and to remain at Macon with his said foster parents. Petitioner's foster father did go to Savannah, and died there. Petitioner, in pursuance of the contract with his foster mother, gave up the business in Baltimore, and remained with her as her son until her death."

Petitioner's foster mother died without complying with the said contract. On the contrary, she left a will disposing of her property largely to others.

By amendment the plaintiff presented a detailed schedule of certain properties embraced in the suit, and asked a decree for all other property owned by the aunt at the time of her death. The defendant filed general and special demurrers, which were overruled. Exceptions pendente lite were duly taken, so that the correctness of these rulings are in the bill of exceptions called into question.

Upon the call of the case for trial, and before it was submitted to a jury, the defendant presented in writing her motion to suppress the interrogatories and the answers thereto of Ellen W. Bellamy, a witness for the plaintiff. These interrogatories were sworn out by the plaintiff, under section 4560 of the Civil Code, to perpetuate the testimony of the witness named. The application to perpetuate the testimony is as follows:

"Georgia, Bibb County.

"To Hon. H. A. Mathews or Hon. Malcom D. Jones, Judges of the Superior Court of said County; The application of William Lee-Ellis, Jr., to perpetuate the testimony of Mrs. E. W. Bellamy, respectfully shows:

"(1) Mrs. E. W. Bellamy resides in said state and county, and is now in said county.

"(2) It is the intention of applicant to institute in the superior court of said county a suit against the administrator with the will annexed of Mrs. Gazalene Ellis and the legatees and devisees under her will, to recover the property which belonged to the said Mrs. Ellis before her death; said suit to be in two counts, one count on a contract made by Mrs. Ellis and her husband with the parents of applicant, for applicant's Benefit, under which Mrs. Ellis and her husband agreed to take and rear applicant as their own child and leave him all their property at their death, and the other count on a contract made by Mrs. Ellis and her husband with the applicant, in which they agreed that, if applicant would remain with her until her death, they would leave him all of their property at her death, both of said contracts having been fully performed on applicant's part.

"(3) The proof expected to be obtained from said witness is that Mrs. Ellis and her husband did take applicant when he was a child and rear him, that applicant did remain with Mrs. Ellis until her death, and that both Mrs. Ellis and her husband told the witness that both of said contracts had been made.

"(4) Applicant was formerly the executor under said will, but has resigned as such executor, naming Mrs. Gazalene M. Hardeman as a person qualified and willing to accept the trust. Applicant cannot now commence said suit, for the reason that the administrator with the will annexed has not yet been appointed.

"(5) The parties interested on the other side of said suit are as...