Pair v. Pair

Decision Date12 March 1918
Docket Number(No. 662.)
PartiesPAIR et al. v. PAIR.
CourtGeorgia Supreme Court
147 Ga. 754

95 S.E. 295

PAIR et al.
v.
PAIR.

(No. 662.)

Supreme Court of Georgia.

March 12, 1918.


(Syllabus by the Court.)

Where an illegitimate child is received, when an infant, by the putative father into his home under a contract with the mother to adopt the child and make him an heir at law, and where the father recognizes the child as his son until and after the child's majority, and the child fully performs all the duties of a son to the father, but the contract does not amount to a legal adoption, and no steps are taken by the child in his lifetime to have the contract specifically enforced, his heirs at law (he having predeceased the father) cannot maintain a petition in equity to have the contract specifically performed and to recover the estate of the father, consisting wholly of personalty. The right of action as for a breach of contract or the specific performance of it, if any, on the death of such adopted child, vests in and passes to his personal representative, and not to his heirs at law.

(Additional Syllabus by Editorial Staff.)

Error from Superior Court, Cobb County; R. N. Hardeman, Judge.

Suit by J. W. Pair against W H. Pair and others, with cross-petition by defendants. Demurrer to cross-petition sustained, and verdict directed for plaintiff, and defendants bring error. Affirmed.

Mozley & Gann, E. H. Clay, and Geo. D. Anderson, all of Marietta, for plaintiffs in error. Jno. H. Boston, Jr., and D. W. Blair, both of Marietta, for defendant in error.

GEORGE, J. William Pair, of Cobb county, survived his wife and died on July 16, 1915. He had no children born to him in lawful wedlock. J. W. Pair was legally adopted in the superior court of Cobb county, in November, 1895, and survived him. After the death of William Pair, William Henry Pair was appointed temporary administrator of his estate; and as such he instituted an action against J. W. Pair, to recover the possession of certain personalty and certain described notes due to William Pair, deceased. This action is still pending. J. W. Pair was thereafter appointed permanent administrator of the estate of William Pair, but an appeal by William Henry Pair was taken from this judgment of the court of ordinary, and this appeal is still pending. J. W. Pair then filed his petition in equity, reciting the foregoing facts, and alleging that William Henry Pair and his brothers, naming them, were mere intermeddlers and interlopers and without any right or interest in the estate of William Pair, deceased; that there were no debts owing by the estate of William Pair; that he was the sole heir at law of the deceased, and was entitled to his estate, and to injunction against any interference therewith by William Henry Pair and his brothers. The petition contained appropriate prayers. To the petition William Henry, Sam A., and Irwin Pair answered, and by was of cross-petition alleged: J. C. Pair was the father of the defendants, and the defendants are his "only children and sole heirs at law." J. C Pair died a short time before the death of William Pair. William Pair was the father of J. C. Pair, but William Pair and the mother of J. C. Pair were never married. William Pair and the mother of J. C. Pair, some time after the Civil War, entered into a parol contract whereby the mother relinquished unto William' Pair her parental rights and control over J. C. Pair, then an infant, William Pair assuming all obligations for his support and education, and agreeing to adopt him as his son and heir, and that "he should inherit any property he might have as his heir." The parol agreement and obligation "was accompanied bs. a virtual, though not a statutory, adoption, and acted upon by said William Pair and the mother of J. C. Pair and J. C-Pair himself, and all parties concerned." J. C. Pair, in pursuance of the agreement, was taken into the homo of William Pair, treated as a son, supported and educated by him; and J. C. Pair in turn performed "the relations to William Pair as a son." This agreement and this relation were recognized by William Pair until the death of J. C. Pair. Gifts were bestowed upon J. C. Pair, and in a deed conveying to him certain land he was referred to as the son of the donor, William Pair. The defendants were at all times, both before and after the death of J. C. Pair, recognized by William Pair as his grandsons and heirs at law, and benefits and gifts were bestowed upon them by him-The defendants

[95 S.E. 296]

claimed the whole of the estate of William...

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