Kilby v. Folsom, 11990.

• Decision Date: 04 December 1956
• Docket Number: No. 11990.,11990.
• Parties: Jean A. KILBY, on her own behalf and on behalf of Jane L. Kilby, Appellant, v. Marion D. FOLSOM, Secretary of Health, Education and Welfare of the United States.
• Court: U.S. Court of Appeals — Third Circuit

238 F.2d 699 (1956)

Jean A. KILBY, on her own behalf and on behalf of Jane L. Kilby, Appellant, v. Marion D. FOLSOM, Secretary of Health, Education and Welfare of the United States.

No. 11990.

United States Court of Appeals Third Circuit.

Argued November 13, 1956.

Decided December 4, 1956.

Cuthbert H. Latta, Philadelphia, Pa. (J. Peter Williams, F. Hastings Griffin, Jr., Philadelphia, Pa., on the brief), for appellant.

Alan J. Swotes, Asst. U. S. Atty., Philadelphia, Pa. (W. Wilson White, U. S. Atty., Philadelphia, Pa., on the brief), for appellee.

Before GOODRICH, McLAUGHLIN and STALEY, Circuit Judges.

GOODRICH, Circuit Judge.

The plaintiff in this appeal is seeking recovery of Social Security benefits. The case hinges upon the question whether plaintiff's foster daughter, Jane, is the "child" of plaintiff's deceased husband Ralph M. Kilby, within the meaning of that word as used in the Social Security Act.¹ Jane qualifies as a "child" of Ralph M. Kilby only if she would be entitled to a child's share in his intestate estate under the laws of Pennsylvania which was the decedent's domicile at his death.² Plaintiff lost before the referee and before the District Court for the Eastern District of Pennsylvania.

The evidentiary facts are not in dispute. The question concerns the conclusion to be drawn from the facts. Since the problem deals with the ultimate conclusion and not evidence, the usual rules about conclusiveness of findings by the triers of fact do not apply. Curtis Co. v. Commissioner, 3 Cir., 1956, 232 F.2d 167; Lehmann v. Acheson, 3 Cir., 1953, 206 F.2d 592. Nor is there any question of particular administrative competence involved, for the problem is a legal one. The case was treated as one not involving a disputed set of facts in the district court. There the defendant was given summary judgment.

Ralph M. Kilby and his wife, Jean Kilby, very much desired a child but had not had one of their own. They had opportunity through a physician friend in Cincinnati to adopt a newborn baby. The mother of the child turned the infant over to Mrs. Kilby. Adoption proceedings were never completed prior to Mr. Kilby's death.

Our question is, therefore, whether the parties concerned did such things in the lifetime of Mr. Kilby as entitle the child to claim an intestate share in his estate. There is no common law adoption in Pennsylvania, In re Carroll's Estate, 1908, 219 Pa. 440, 68 A. 1038, and formal adoption in the manner prescribed by statute, when it occurs, now "severs the child entirely from its own family tree and engrafts it upon that of its new parentage * * *."³ Harvey Adoption Case, 1953, 375 Pa. 1, 4, 99 A.2d 276, 277, 278. But this the foster parents never did.

They did do many other things, however, consistent only with a showing of their intention to create the equivalent of parent-child relationship between themselves and the little girl who was given into their custody. The mother of this baby signed a paper at the time Mrs. Kilby got the child. By this paper the mother stated that the child had been given by her to Mr. and Mrs. Kilby "to be adopted by them as soon as is legally permitted" and relinquished all claims she had to the child. The Kilbys immediately assumed responsibility for the little girl. They sent out announcements of her birth as if born to them; Mr. Kilby made Jane a contingent beneficiary of his life insurance policies which ran to Mrs. Kilby as beneficiary. He claimed her as a dependent "daughter" in his income tax return. The Kilbys gave the child their own name and in all respects treated her as their own.

Now what is the effect of all this? The rule concerning the subsequent action of parties as a criterion of interpretation for their agreement is thus stated in the Restatement, Contracts, § 235(e) (1932):

"(e) If the conduct of the parties subsequent to a manifestation of intention indicates that all the parties placed a particular interpretation upon it, that meaning is adopted if a reasonable person could attach it to the manifestation."

The same proposition with a citation of decisions is found in 3 Williston, Contracts § 623 (rev. ed. 1936). Subsequent conduct is relevant in determining whether a foster parent has bound himself to give a child inheritance rights. Evans's Estate, 1911, 47 Pa.Super. 196. The defendant secretary argues, and rightly of course, that to have a contract there must be a contract with somebody. But he argues incorrectly, we think, that there was not a contract with somebody here. The baby's natural mother offered her to the Kilbys "to be adopted by them." They took the child. There seems no difficulty in finding a consensual transaction between the natural mother and the foster parents. But so far we stick in the bark. What did the mother mean by the phrase "to be adopted" and what did the Kilbys mean by it?

If this word "adopt" was used in a document drawn up by one lawyer to be checked by another lawyer we would naturally give it its technical meaning. See Restatement, Contracts, § 235 (1932). But this paper given to Mrs. Kilby is quite evidently a homemade affair given by a layman to a layman. What does "adopt" mean? The dictionary gives six meanings for it and gives as synonyms "receive, accept, choose, take up; naturalize, father, mother; welcome, attach oneself to." And the first meaning given is:

"to take by choice into a relationship, as child, heir, friend, citizen, etc.; esp., to take voluntarily (a child of other parents) to be in place of, or as, one\'s own child."⁴

We have no reason for thinking that this natural mother in her homemade document was using "adopt" as a word of technical legal art. We think the fair interpretation to be given it was that she was giving up her child to the Kilbys to make it their own. There is no doubt that the Kilbys, throughout the rest of Mr. Kilby's life, certainly treated the child as fully their own as any child could be treated. We think the fair interpretation of what was said and what was done is that the foster parents agreed to and did treat this little girl as their own, fully as much as if she had been their natural, legitimate child. And being treated as a natural, legitimate child necessarily involves the privilege of sharing in the estate of the parent, unless, of course, the parent by will disinherits the child.

This conclusion was the one reached by the Supreme Court of Pennsylvania in In re McDaniel's Estate, 1931, 305 Pa. 17, 156 A. 338. In that case there was formal contract made between the foster parents and Children's Home Society.⁵ A closer case to this one is In re Estate of Susman, 1897, decided by the Orphans' Court of Allegheny County and reported in 28 Pittsburgh Legal J., N.S., 101. In that case there was no effective adoption. The persons to whom an infant was turned over agreed "to provide for her as our own child." And the child's rights were protected accordingly upon intestacy of the foster parent. Other...