Redmon v. Roberts

• Decision Date: 30 December 1929
• Docket Number: 588.
• Citation: 150 S.E. 881,198 N.C. 161
• Parties: REDMON v. ROBERTS et al.
• Court: North Carolina Supreme Court

150 S.E. 881

198 N.C. 161

REDMON v. ROBERTS et al.

No. 588.

Supreme Court of North Carolina

December 30, 1929

Appeal from Superior Court, Madison County; Johnson, Special Judge.

Action by Stella Redmon against Dr. Frank Roberts and others administrators of the estate of J. F. Redmon, deceased, and others. From a judgment setting aside a verdict for plaintiff, plaintiff appeals. Error.

Oral contract to devise or convey land in consideration of services rendered may be enforced.

The plaintiff is an illegitimate daughter of J. F. Redmon, who died intestate on or about April 24, 1928. The defendants are the administrator, widow, and heirs at law of the deceased. The evidence tends to show that the deceased in his early manhood was intimate with the mother of plaintiff, who was then a young girl. The evidence further tends to show that the deceased made a contract with the mother "that if I wouldn't bring suit against him, or have my brothers bring suit against him, that he would take Stella *** as his child, give her his name, and just as soon as he was financially able that we would get married. I agreed to that." Thereafter the deceased informed plaintiff's mother that he was intending to marry some one else, and that thereupon the deceased agreed with the mother of plaintiff that "he would take her in his own home after he was married, and he would give her his name, and leave her equal part of anything he had, equal with any children he had. I agreed with Mr. Redmon, if he would take her and raise her as his child and give her a share of property, that I would not bring suit against him or allow my brothers to bring suit against him." Thereafter the mother of plaintiff married and moved away to a distant state, and the plaintiff went to the home of the deceased and lived in his home as one of his children, took the name of the deceased, and was sent to school by him and cared for by him as one of his own children.

At the time of his death the deceased left a wife and seven children. There was evidence tending to show the value of the estate of intestate.

The following issues were submitted to the jury:

(1) "Is the plaintiff the illegitimate child of defendants' intestate, J. F. Redmon, as alleged in the complaint?"

(2) "Is Stella Redmon the illegitimate child of her mother, Stella Kate Haynie?"

(3) "Did the defendants' intestate, J. F. Redmon, in consideration of an agreement on the part of the plaintiff's mother not to take legal action against the defendants' intestate on account of seduction or bastardy, contract and agree with the mother of the plaintiff to leave to the plaintiff, at his death, a share of his estate equal in value to that left to each of his other children, as alleged in the complaint?"

(4) "Did the defendants' intestate, J. F. Redmon, in consideration of the plaintiff's mother turning over the custody and control of plaintiff to the defendants' intestate, contract and agree with the mother of the plaintiff to leave to the plaintiff at his death a share of his estate equal in value to that left to each of his other children, as alleged in the complaint?"

(5) "If so, did the defendants' intestate breach his contract, as alleged in the complaint?"

(6) "Did the defendants' intestate, during his lifetime, legally adopt the plaintiff, Stella Redmon?"

(7) "What damages, if any, is the plaintiff entitled to recover of the defendants?"

The jury answered the first five issues, "Yes," the sixth issue, "No," and the seventh issue "$6,000.00."

The record shows the following entries: "After the coming in of the verdict in the above-entitled case, the plaintiff moved for judgment on the verdict. This motion was denied for the reason, and only for the reason, that the undersigned judge was of the opinion that, as a matter of law, upon all the evidence, the plaintiff was not entitled to recover."

Thereupon judgment was entered, setting aside the verdict as a matter of law and not as a matter of discretion. From the judgment rendered, plaintiff appealed.

R. R Williams, of Asheville, and Carl R. Stuart and C. B. Mashburn, both of Marshall, for appellant.

John A. Hendricks and G. V. Roberts, both of Marshall, for appellees.

BROGDEN J.

Can an illegitimate child maintain an action against the estate of the deceased father, upon a contract made by the father with the mother, to the effect that the father would take the child into his own family, and at his death give such child an equal share in his estate with his legitimate children?

Certain aspects of the question have been considered by this court in Thayer v. Thayer, 189 N.C. 502, 127 S.E. 553, 39 A. L. R. 428. It is clearly established in this state that a contract made by the father of an illegitimate child with the mother thereof for support and maintenance of such child is not contrary to public policy, but is a valid and enforceable agreement, supported by sufficient consideration. Hyatt v. McCoy, 195 N.C. 762, 143 S.E. 518.

However the defendants contend that the plaintiff cannot recover, because the contract alleged and proven constituted either an agreement to adopt or to devise real property. Hence, if the contract sued on was merely an agreement to adopt, then no recovery lies, for the reason that adoption is the creature of statute, and strict compliance therewith is essential to establish the relationship of parent and child. Truelove v. Parker, 191 N.C. 430, 132 S.E. 295. Moreover, if the cause of action be based upon an agreement to devise real property, then the contract is unenforceable by reason of the application of the statute of frauds, it...