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Dye v. Ghann

Supreme Court of Georgia
Apr 6, 1961
119 S.E.2d 700 (Ga. 1961)

Opinion

21192, 21193.

ARGUED MARCH 13, 1961.

DECIDED APRIL 6, 1961.

Equitable petition. Warren Superior Court. Before Judge Norman.

Walton Hardin, for plaintiffs in error.

Randall Evans, Jr., J. Cecil Davis, W. Tom Veazey, contra.


1. Where a plaintiff brings a suit against the administrator of the estate of the brother of the plaintiff's alleged adoptive father, seeking to have herself declared the virtually adopted child of her adoptive father and seeking to be declared an heir at law of the father's brother, who died intestate, and entitled as such to share in the brother's estate, and persons averring themselves to be heirs at law of the brother make an oral motion at the call of the case for trial to be added as parties defendant, along with the administrator, to defend the action, such persons are proper parties to the suit, and the trial judge did not abuse his discretion in adding them as parties defendant over the sole objection by the plaintiff that their motion should have been in writing.

2. Under the adoption statutes contained in the 1933 Code of Georgia ( Code § 74-404), which are applicable to the instant case, an adopted child did not become an heir at law of the brother of the adoptive father so as to be entitled to share as an heir in the estate of the brother who died intestate.

ARGUED MARCH 13, 1961 — DECIDED APRIL 6, 1961.


Meria Kathrina Dye Ghann filed a petition in Warren Superior Court, alleging in substance as follows: That petitioner is the adopted daughter of Gordon Dye, deceased; that W. P. Dye is the duly qualified and acting administrator of Edward Buford Dye, deceased; that Edward Buford Dye was the brother of Gordon Dye; that Edward Buford Dye died intestate leaving named persons, including petitioner, as his sole surviving heirs at law; that petitioner, as the adopted daughter of Gordon Dye, is entitled as an heir at law of Edward Buford Dye to receive the portion of the estate of Edward Buford Dye that would have gone to her adoptive father, Gordon Dye, had he survived Edward; that petitioner is entitled to a one-twelfth undivided interest in the estate of Edward Buford Dye; and that W. P. Dye, as administrator, has not indicated that he intends to pay petitioner her proportionate part of said estate. The prayers were that W. P. Dye, as administrator, be required to show cause why petitioner is not an heir at law of Edward Buford Dye and entitled as such to share in said estate.

By amendment petitioner alleged that there had not been a legal adoption of her by Gordon Dye, but that there had been a virtual adoption based upon a contract between petitioner's mother and Gordon Dye, which had been acted upon by all parties and recognized by them up to the time of the death of Gordon Dye.

W. P. Dye, as administrator, filed an answer to the petition. The case came on for trial before a jury on October 4, 1960. Upon the call of the case, the plaintiffs in error in the main bill of exceptions, claiming themselves to be heirs at law of Edward Buford Dye, made an oral motion through their attorney that they be allowed to enter the case and be made parties defendant to assist in defending the action. Petitioner's counsel objected to said motion, which objection was overruled, and said persons were allowed to enter the case as defendants. Such defendants then made an oral motion in the nature of a general demurrer to strike the petition, which motion was denied. The case proceeded to trial. After all the evidence was in, counsel representing such defendants (but not the defendant administrator) moved for a directed verdict, which was denied. The jury rendered a verdict for the petitioner, and judgment was entered accordingly. The said defendants filed a motion for new trial on the general and two special grounds and also a motion for judgment notwithstanding the verdict, both of which were denied. In the main bill of exceptions, they assign error on the denial of their oral motion to strike the petition and on the orders denying their motion for new trial and denying their motion for judgment notwithstanding the verdict.

By cross-bill of exceptions petitioner excepts to the overruling of her counsel's objection to permitting the plaintiffs in error in the main bill to be named as defendants in the action. In this connection, the sole objection was on the ground that no written motion or pleading had been filed by such persons, seeking to be named as defendants in the case. The record contains a nunc pro tunc order signed by the trial court on October 12, 1960, allowing such persons to be made parties defendant, and this order is excepted to in the cross-bill. The cross-bill also excepts to the denial of the motion by petitioner's counsel to strike the answer of W. P. Dye, as administrator, on certain grounds, and to declare the case in default and enter judgment for petitioner. In the cross-bill it is alleged that on December 16, 1960, counsel for plaintiffs in error in the main bill presented to the trial court an amended motion for new trial and a motion for judgment notwithstanding the verdict; that counsel for petitioner moved to dismiss said motions and the original motion for new trial and requested the court not to approve or allow filed a certain brief of evidence being presented by said parties, on the ground that each of said motions required a reference to the brief of evidence, and same was not a proper brief of evidence, and that no proper notice had been given to petitioner or her counsel of the presentation of a brief of evidence for approval on said date. Said objections were overruled, and to this order petitioner excepts.


1. We first pass upon the objection raised by the cross-bill to allowing the plaintiffs in error in the main bill of exceptions to be made parties defendant and to assist in the defense of the suit.

Upon the call of the case for trial, certain persons, averring themselves to be heirs at law of Edward Buford Dye, made an oral motion through their counsel that they be named and included as parties defendant to assist in defending the action. Petitioner's counsel objected to the motion on the ground that such a motion had to be in writing, and that such persons had not filed written pleadings seeking to be named as parties defendant in the case. Neither the administrator nor his counsel offered any objection to the motion. The plaintiff's objection was overruled, the moving parties were allowed to enter the case as defendants, and the case proceeded to trial, resulting in a verdict for the plaintiff. On October 12, 1960, some five or six days after the trial had been completed, the trial judge entered an order nunc pro tunc naming as defendants to the case the plaintiffs in error in the main bill of exceptions.

"It is a well-settled rule that all persons who are interested in the result of litigation should be made parties, either plaintiff or defendant, to proceedings for equitable relief. Code § 37-1004; Henderson v. Napier, 107 Ga. 342, 344 ( 33 S.E. 433). By numerous decisions of this court it has been held that all persons who are directly or consequentially interested in the event of the suit should be made parties. Blaisdell v. Bohr, 68 Ga. 56(3); Henderson v. Napier, supra; Bond v. Hunt, 135 Ga. 733 ( 70 S.E. 572); First National Bank of Sparta v. Wiley, 150 Ga. 759 (2) ( 105 S.E. 308)." Saliba v. Saliba, 202 Ga. 279, 286 ( 42 S.E.2d 748). In the Henderson case, cited above, this court stated: "Where equitable proceedings are instituted which pray for relief touching rights and interests of the petitioners in certain specific property, and the petition discloses the fact that others are directly interested in the property, who are not made parties to the proceedings, and whose interests would be affected by a grant of the relief sought, such other persons are proper and necessary parties to the action." See also Tison v. Tison, 12 Ga. 208 (2).

In the instant case, the petition sets forth the names of numerous persons and alleges that such persons were all of the heirs at law of Edward Buford Dye. It also alleges certain facts which the plaintiff contends show that she is an heir at law of Edward Buford Dye, and prays that she be adjudicated to be an heir and entitled to a one-twelfth undivided interest in his estate. It is apparent that the heirs at law of Edward Buford Dye would be directly interested and affected by a judgment granting plaintiff the relief for which she prayed, and that they are proper parties to the action.

It has been held that, under the provisions of Code § 3-404, governing the procedure for making parties, a trial court, in its discretion, may issue and serve a rule nisi upon a person present in court, calling upon such person to show cause why he should not be made a party to a case then on trial, and may make such person a party to the case instanter. Davis v. Freeman, 190 Ga. 833 ( 10 S.E.2d 847).

Where, as here, the persons seeking to be added as defendants to the case are present in court and a showing is made that they are proper parties to the suit, and where they make an oral motion to be added as parties defendant, and the only objection made is on the ground that their motion should be in writing, the trial judge does not abuse his discretion in overruling such objection and in making them parties defendant to the action, and in thereafter entering an order nunc pro tunc naming such persons as defendants.

2. Having decided that it was not error to permit the plaintiffs in error in the main bill to be named as parties defendant, we pass now to a consideration of the first assignment of error raised by the main bill of exceptions. After the objection to adding the plaintiffs in error as parties defendant had been overruled, and after a jury had been selected, counsel for the plaintiffs in error made a motion to strike the petition, in the nature of a general demurrer. The motion was denied and the case proceeded to trial. In denying such motion the trial court erred.

The amended petition alleged that the plaintiff was the virtually adopted child of Gordon Dye, deceased. "The authorities very generally establish the proposition that a parol obligation by a person to adopt the child of another as his own, accompanied by a virtual though not a statutory adoption, and acted upon by both parties during the obligor's life, may be enforced, upon the death of the obligor, by adjudging the child entitled as a child to the property of the obligor who dies without disposing of his property by will. . . So that it is now well established by authority that an agreement to adopt a child, so as to constitute the child an heir at law on the death of the person adopting, performed on the part of the child, is enforceable upon the death of the person adopting the child as to property which is undisposed of by will. Though the death of the promisor may prevent a literal enforcement of the contract, yet equity considers that done which ought to have been done and as one of the consequences, if the act of adoption had been formally consummated, would be that the child would inherit as an heir of the adopter, equity will enforce the contract by decreeing that the child is entitled to the fruits of a legal adoption." Crawford v. Wilson, 139 Ga. 654, 658 ( 78 S.E. 30, 44 L.R.A. (NS) 773). "The relief which equity grants in cases of virtual adoption is the equivalent of the benefit the child would have received had the adopter performed his contractual obligation to adopt formally and legally the child involved." Ware v. Martin, 207 Ga. 512 ( 63 S.E.2d 335); Baker v. Henderson, 208 Ga. 698 ( 69 S.E.2d 278); Jones v. O'Neal, 194 Ga. 49 ( 20 S.E.2d 585).

It therefore becomes necessary to determine what benefit the plaintiff would have received as respects the matters involved in the instant suit had Gordon Dye fulfilled his alleged agreement to legally adopt her. The amended petition alleges that Gordon Dye died in 1932, and therefore the status of the plaintiff with respect to her rights of inheritance must be determined with reference to the adoption statutes in force after the alleged promise to adopt was made and before the death of Gordon Dye, the promisor, occurred. The time of making the alleged agreement between the plaintiff's mother and Gordon Dye is not definitely fixed by the petition. However, it appears positively that the agreement was made at some time after the close of World War I and the date of Gordon Dye's death. The statute law of force during said period of time which pertains to an adopted child's right of inheritance is contained in section 74-404 of the 1933 Code of Georgia. That section is as follows: "Upon the first hearing the court may pass an order only granting temporary custody of the child to the petitioner. Final adoption shall be granted only upon a second hearing after the child shall have been in the custody and care of the petitioner for a period of six months. The decree of adoption shall declare the said child to be the adopted child of the petitioner and capable of inheriting his estate, and also what shall be the name of such child. Thenceforward the relation between such person and the adopted child shall be, as to their legal rights and liabilities, the relation of parent and child, except that the adopting father shall never inherit from the child. To all other persons the adopted child shall stand as if no such act of adoption had been taken." The last sentence of the Code section is determinative of the plaintiff's rights to inherit, as an heir, any portion of the estate of Gordon Dye's brother. It is clearly stated that as to all other persons (and the brother of Gordon Dye would be included within such classification) "the adopted child shall stand as if no such act of adoption had been taken." As far as the rules of descent and distribution are concerned, if the plaintiff had been legally adopted by Gordon Dye she would stand no more closely related to Gordon Dye's brother than she would if no adoption had taken place.

Counsel for the plaintiff has cited no case to this court, and we have found none, where an adopted child, under the above statute, has been held entitled as an heir to inherit, or share in inheriting, the estate of blood relatives of the adopting parents. The case of Alexander v. Lamar, 188 Ga. 273 ( 3 S.E.2d 656, 123 A.L.R. 1032), does not support the position taken by the plaintiff, but to the contrary strongly supports the decision rendered here. There the natural mother of the child sought to enforce a contract of virtual adoption where the alleged adoptive mother died intestate and the child later died also, the natural mother contending that she was the heir of her natural child and entitled to inherit, through him, a share of the estate of the alleged adoptive mother. In rejecting the contention of the natural mother, this court held that, under the statute, an order of adoption had the effect of substituting the adopting parents in the place of the natural parents. In so holding, it was stated: "Thus the statute does not attempt to force the adopted child on others than the adopting parents as an heir, nor does it deprive the child of its kindred other than its natural parents. As we have already said, we think that the entire purpose and meaning of the statute was merely to substitute the adopting parents for the natural parents, and to affect the rights of no other persons." Alexander v. Lamar, supra, p. 278.

The cases of Shelton v. Wright, 25 Ga. 636, and Pace v. Klink, 51 Ga. 220, relied upon by the plaintiff, are inapplicable to the present case. Both of those cases involved instances where a child had been legitimated by a special act of the legislature, such acts being passed prior to the adoption statutes which are controlling in the instant case. Likewise inapplicable here are cases decided by this court subsequently to the enactment of the adoption statute of 1941 (Ga. L. 1941, p. 300), which repealed the adoption statutes determinative herein.

The petitioner is not entitled to share as an heir at law in the estate of Edward Buford Dye, for the reasons given hereinabove, and it was error to deny the motion to strike the petition in the nature of a general demurrer. All further proceedings in the case thereafter were nugatory.

Judgment reversed on the main bill of exceptions; and the ruling excepted to in the cross-bill as decided in division 1 of the opinion is affirmed. All other assignments of error are dismissed. All the Justices concur.


Summaries of

Dye v. Ghann

Supreme Court of Georgia
Apr 6, 1961
119 S.E.2d 700 (Ga. 1961)
Case details for

Dye v. Ghann

Case Details

Full title:DYE et al. v. GHANN et al. GHANN v. DYE, Administrator, et al

Court:Supreme Court of Georgia

Date published: Apr 6, 1961

Citations

119 S.E.2d 700 (Ga. 1961)
119 S.E.2d 700

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