Prince v. Prince

• Decision Date: 14 October 1915
• Docket Number: 729
• Citation: 194 Ala. 455,69 So. 906
• Parties: PRINCE et al. v. PRINCE.
• Court: Alabama Supreme Court

69 So. 906

194 Ala. 455

PRINCE et al. v. PRINCE.

No. 729

Supreme Court of Alabama

October 14, 1915

Appeal from Chancery Court, De Kalb County; W.H. Simpson Chancellor.

Bill by Joe S. Prince against J.G. Prince and others to enforce an adoptive contract or agreement made between the mother of complainant and one William T. Prince and wife. Decree for complainant, and respondents appeal. Affirmed.

For another branch of this case, see Prince v. Prince et al., 188 Ala. 559, 66 So. 27.

The bill of complaint shows in substance as follows:

That complainant's mother agreed with one William T. Prince and his wife that if they would so adopt complainant, then a few months old, he would inherit their estate at their death then she would give them the boy. Said Prince and wife took the boy with the agreement to adopt him and give him their name, so that he would inherit their estate at their death. In the attempted execution of this agreement, W.T. Prince executed and filed for record in the probate office in the year 1880, a declaration that:

"I desire to adopt and do hereby adopt Simeon Jones, *** so as to make him *** capable of inheriting my estate, real and personal."

This instrument was witnessed, but not acknowledged before an officer, and for want of such acknowledgment was held insufficient to effectuate the intended adoption; such holding having been made in an ejectment suit between the parties in the case mentioned above. In all other respects the adoption was complete, and the relation of parent and child was initiated and preserved until the death of the adoptive father, who died shortly after the adoptive mother. During all this time defendant served his adoptive parents faithfully as a son, and by his labor much of the estate was accumulated or preserved.

The bill seeks a specific performance of the contract with respect to the investiture in complainant of the estate left by his said father, making the heirs at law of the said father respondents; it appearing that he died intestate. The evidence shows that, all during the life of the adoptive father, complainant was led to believe by his repeated declarations to complainant and others that complainant was his legally adopted son, and would inherit upon his death all of his estate.

Isbell & Scott, of Ft. Payne, for appellants.

Hunt &amp Wolfes, of Ft. Payne, for appellee.

SOMERVILLE J.

By the weight of authority, and upon the soundest principles of equity, justice, and sound policy, it is held that, although a declaration of adoption is invalid by reason of its noncompliance with statutory requirements, yet where the actual parent, or some one in loco parentis, has surrendered the custody of the child to the adoptive parent, upon the mutual agreement that such child shall be adopted by and made the legal heir of the latter, and this agreement is fully performed by the child, a court of chancery will decree a specific performance of the adoption contract by such parent his heirs or representatives, to the extent of investing in the child the whole or such part of the adoptive parent's estate as he would have been entitled to receive under the adoption contract if properly executed. Kofka v. Rosicky, 41 Neb. 328, 59 N.W. 788, 25 L.R.A. 207, 43 Am.St.Rep. 685; Wright v. Wright, 99 Mich. 170, 58 N.W. 54, 23 L.R.A. 196; Van Tine v. Van Tine (N.J.) 15 A. 249, 1 L.R.A. 155; Van Dyne v. Vreeland, 11 N.J.Eq. 370; Godine v. Kidd, 64 Hun, 585, 19 N.Y.Supp. 335; Burns v. Smith, 21 Mont. 251, 53 P. 742, 69 Am.St.Rep. 653; Chehak v. Battles, 133 Iowa, 107, 110 N.W. 330, 8 L.R.A. (N.S.) 1130, 12 Ann.Cas. 140; Hood v. McGehee (C.C.) 189 F. 207; 1 R.C.L. § 28; 1 Cyc. 936.

A distinction must, of course, be recognized between a mere agreement to adopt, and an agreement to make the child a beneficiary of property, either by heirship or by deed or testament. In view of this distinction, it is insisted, not only that the evidence fails to show a contract of adoption, but that, even if it does, it does not appear that it embodied any agreement by which complainant acquired any equitable interest in the estate of his adoptive father, and hence that there is no right shown which equity can or should enforce. It must be conceded that equity will not enforce a mere agreement to adopt, since, for the purposes of the relationship and its legal incidents, the requirements of the statute are clearly mandatory and exclusive. Prince v. Prince, 188 Ala. 559, 66 So. 27.

The...