Pierce v. Harrison
| Decision Date | 04 April 1945 |
| Docket Number | 15066. |
| Citation | 33 S.E.2d 680,199 Ga. 197 |
| Parties | PIERCE et al. v. HARRISON. |
| Court | Georgia Supreme Court |
On September 7, 1943, Moody A. Harrison, a minor, by Mrs. Jessie Burroughs (formerly Mrs. Harrison) as next friend, filed a petition in equity against Mrs. N. L. Smith (formerly Mrs. Lee Pierce), Mrs. Bessie Smith, Mrs. Essie Smith, Mrs. Jessie Burroughs, B. N. Pierce, Luther B. Ramsey and W. J. Cothran. The suit was returnable to the September term, 1943, of the superior court of Franklin County, and alleged substantially the following:
Mrs. N L. Smith is the widow, and Mrs. Bessie Smith, Mrs. Essie Smith, Mrs. Jessie Burroughs, and B. N. Pierce are the sole natural children, of Lee Pierce, deceased, late of said county. Lee Pierce died intestate on October 22, 1939 survived by his widow and natural children, named above, all of whom were adults at the time of his death, and by the petitioner, Moody A. Harrison, an adopted minor son.
At the December term, 1939, of the court of ordinary of said county there was set apart out of said decedent's estate, as a year's support for his widow alone, all of the decedent's right, title, interest, and equity in described real estate; a copy of the year's-support proceedings being attached as an exhibit to the petition.
It was the duty of said widow to have named said minor adopted son as a beneficiary in the application for year's support, and to have had said year's support set apart both to herself and the petitioner. Said widow failed to name the petitioner as a beneficiary in the application for year's support, and procured the same to be set aside to herself alone, thus improperly excluding said minor from any beneficial interest therein. By reason of the exclusion of the petitioner in said application, and his being thus deprived of any beneficial interest in the property set apart, the judgment setting apart said property to the widow alone was void and ineffectual to vest in her any right, title, interest, or equity in said real estate. In the application for the year's support, signed by Mrs. Pierce as widow, it was stated that the decedent left 'no minor children surviving him.'
By deed dated December 5, 1939, said widow purported to convey a portion of the real estate in question on W. J. Cothran, a copy of said deed being attached as an exhibit to the petition.
Said Luther B. Ramsey is a tenant of said Cothran, and is in possession as such tenant of the portion of the property in question which is claimed by Cothran under said deed executed to him by the widow of Lee Pierce.
On August 7, 1943, said widow executed and delivered to her son, B. N. Pierce, a deed covering the entire tract in question, notwithstanding he then and prior thereto had notice and actual knowledge of the rights and equities of the petitioner as herein set forth.
The petitioner is the son of Moody L. Harrison and his wife, who prior to her marriage was Jessie Pierce, daughter of Lee Pierce. The petitioner's father died May 4, 1928. Shortly before his death, the petitioner's father and Lee Pierce made and entered into an agreement, the substance of which was: Lee Pierce was to adopt the petitioner, and was to have custody of and all parental rights and privileges over him, and the petitioner was to have all the rights and privileges of a natural son of said Lee Pierce, including the right of inheritance. The petitioner's mother concurred and acquiesced in said agreement. Thereafter, until the date of his death, Lee Pierce had custody of the petitioner and exercised exclusive parental control and rights over him, during which period Lee Pierce frequently remarked and asserted that the petitioner had been adopted by him, and he desired that the petitioner inherit from him and participate in his estate as if the petitioner was his natural son.
The petitioner and his mother received from the estate of his deceased father the sum of approximately $1300. Lee Pierce acquired the real estate here involved from M. Crawford by deed dated December 15, 1925, and by security deed of even date conveyed said property to Union Central Life Insurance Company to secure the payment of a $5,000 loan to enable him to pay the purchase-price of said property. In 1928 and 1929, Lee Pierce was in 'awful' financial condition, and was in imminent peril of having said property subjected to the payment of said loan. More than $1000 of the $1300 received by the petitioner and his mother from the estate of Moody L. Harrison was advanced to Lee Pierce for the purpose of being applied on the purchase-price of the real estate in question; and it was expressly agreed and distinctly understood that the petitioner should be the owner of an undivided half interest therein, which interest was to be retained by Lee Pierce during the petitioner's minority in trust for him. The petitioner is entitled to and is the owner of an undivided half interest in said tract, and said property is impressed with a trust in accord with the agreement above set out.
B. N. Pierce is insolvent, and W. J. Cothran is a non-resident of Georgia. Both B. N. Pierce and Cothran had notice and actual knowledge of the aforesaid year's-support judgment, and of the petitioner's rights and equities as set out herein, at and before the execution of the deeds to them by the widow of Lee Pierce. A multiplicity of suits and circuity of actions will result unless a court of equity assumes jurisdiction and establishes the rights and equities of the petitioner.
Waiving discovery, the petitioner prayed: That he be decreed to be the virtually adopted son of Lee Pierce, deceased; that the deed from the widow of Lee Pierce to B. N. Pierce, above referred to, be decreed void and cancelled of record; that the said year's-support judgment be decreed void; that the petitioner have such other and further relief as the nature of his case authorizes.
The defendant, Mrs. N. L. Smith, died pendente lite and B. N. Pierce, as the executor of her will, was made a party defendant.
At the August term, 1944, of the superior court, the defendants made an oral motion to dismiss the petition, on the grounds: (1) that no cause of action was alleged; and (2) that it was not alleged that Mrs. N. L. Smith had any notice or knowledge of the virtual adoption of the plaintiff, as alleged in the petition. 'Whereupon, without any ruling * * * on said oral motion, the plaintiff tendered' an amendment to his petition, which was allowed without objection, in which it was alleged: 'That the defendants, Mrs. N. L. Smith, formerly Mrs. Lee Pierce, had notice and knowledge of the invalidity of the aforesaid year's-support judgment and of petitioner's rights and equities as set out in said original petition at all times therein mentioned, and also had notice and knowledge that the said Moody Harrison was virtually adopted by the said Lee Pierce, as set forth in said original petition.'
At the same term of court, the defendant filed a written demurrer, on general and special grounds, to the petition as amended. At the September term, 1944, the following order, overruling the demurrer, was entered: The defendants excepted.
B. F. Cheek, of Lavonia, and Geo. L. Goode, of Toccoa, for plaintiffs in error.
Wm. Hall, of Toccoa, and A. S. Skelton, of Hartwell, for defendant in error.
1. A parol obligation to adopt the child of another as the child of the obligor, accompanied by a virtual though not a statutory adoption, and acted upon by all parties concerned for many years during the obligor's life, may be enforced in equity upon the death of the obligor, by decreeing the child entitled to the rights of a child and heir at law in his estate. Crawford v. Wilson, 139 Ga. 654(1), 78 S.E. 30, 44 L.R.A., N.S., 773; Savannah Bank & Trust Co. v. Wolff, 191 Ga. 111, 11 S.E.2d 766.
2. The petition of a minor by next...
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