Williams v. Murray
| Decision Date | 21 June 1977 |
| Docket Number | No. 31749,31749 |
| Citation | 236 S.E.2d 624,239 Ga. 276 |
| Court | Georgia Supreme Court |
| Parties | H. D. WILLIAMS, Executor v. Betty Jean MURRAY, formerly Mixon. |
Evelyn Highsmith, Brunswick, for appellant.
Gibbs, Leaphart & Smith, Alvin Leaphart, Jr., Jesup, for appellee.
This is an equity action involving the issue of a virtual adoption.
Appellee, Betty Jean Murray, filed suit in the Superior Court of Appling County against appellant, as executor of Cora Mixon's estate, seeking a ruling that she had been virtually adopted by Horace and Cora Mixon in 1938, and was Cora Mixon's sole heir. The case was heard by a jury who returned a verdict in favor of the appellee, and a decree was entered granting the relief prayed. Appellant's motion for new trial was denied; he appeals.
Virtual or equitable adoption is usually invoked to avoid an unfair result from the application of intestacy statutes. Its underlying theories are drawn from contract law and the relevant elements include the following: "Some showing of an agreement between the natural and adoptive parents, performance by the natural parents of the child in giving up custody, performance by the child by living in the home of the adoptive parents, partial performance by the foster parents in taking the child into the home and treating (it) as their child, and . . . the intestacy of the foster parent." Habecker v. Young, 474 F.2d 1229, 1230 (5th Cir. 1973). See also Rhodes v. Quantrell, 227 Ga. 761, 183 S.E.2d 207 (1971); Toler v. Goodin, 200 Ga. 527, 37 S.E.2d 609 (1946). In Georgia, the mother alone can contract with another for the adoption of a child, but only where it is shown that its father was dead, or that the father had lost parental control, or that the father had abandoned the child, or that the father had acquiesced in the contract made by the mother. Lubeck v. Dotson, 192 Ga. 258(4), 15 S.E.2d 205 (1941). This court has also held that the word "adopt" need not necessarily appear in an adoption agreement, so long as the contract comprehends and intends a legal adoption. Toler, supra, 200 Ga. [239 Ga. 277] at 539, 37 S.E.2d 609.
1. In his first three enumerations of error the appellant contends that the evidence does not support the verdict (that the trial court erred in denying his motion for new trial, in denying his motion for a directed verdict, and in entering a judgment on the jury verdict).
The evidence in this case is conflicting. On one side is the appellee who, along with her witnesses, argues that a virtual adoption took place in 1938. This claim is supported by a signed and witnessed written agreement dated July 28, 1938 which reads as follows:
Thereafter, appellee went to live with the Mixons and remained there until the time of her marriage, was treated as and known as the Mixons' daughter, took the Mixon name as her own, and was supported by the Mixons. While this agreement was signed only by Alna McLeighton, there is evidence that Charlie McLeighton acquiesced in this arrangement for many years.
Opposed to the virtual adoption are the appellant (the executor of Cora Mixon's estate and also one of Cora's brothers) and other siblings of Cora Mixon (including the appellee's natural mother, Alna McLeighton) who all will share in Cora Mixon's undisposed of property if it is decided that the appellee was never virtually adopted. These witnesses testified that Alna McLeighton never signed any adoption agreement; that she only signed a "part time custody paper" which was not introduced into evidence; that Charlie McLeighton never agreed to an adoption and never liked the idea of the appellee's staying with the Mixons.
On appeal this court will consider only the sufficiency of the evidence, not the weight...
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