1. An unfulfilled promise to adopt another does not have the effect of constituting the promise a child or heir of the promisor.

2. Where parties agreeing to the adoption of an infant have no authority or legal right to assent to such adoption, the agreement is not a valid and binding contract, nor is it capable of being enforced where it is made upon a condition that, due to no fault of the prospective parents, was never performed by the opposite parties to the agreement.

3. Where husband and wife enter into a joint agreement to adopt a third person as their child, both are necessary parties to a proceeding to enforce the contract.

(a) A pleading which discloses a person is an essential party to the cause plead, must either join such party or show the omission is excused by the exigencies of the case.

SUBMITTED SEPTEMBER 10, 1962 — DECIDED OCTOBER 1, 1962 — REHEARING DENIED OCTOBER 22, 1962.

Lawrence Winder brought an action in Gwinnett Superior Court against Gene Winder as administrator of the estate of Ike Winder. The petition, besides jurisdictional facts, alleged: the plaintiff was born on May 14, 1935, in Lawrenceville, Virginia, the illegitimate son of Lennie E. Dugger; that he was, together with his brothers and sisters, in the custody and control of his maternal grandmother; that shortly after his birth Ike and Lucile Winder, husband and wife, consulted doctors and nurses of the hospital where he was born in reference to adopting him; that the nurses and doctors agreed with Mr. and Mrs. Winder that, if they wanted to adopt the plaintiff, they (the nurses and doctors) would look after all legal proceedings in connection with the adoption, and see that such proceedings were carried out in accordance with the laws of the Commonwealth of Virginia; that, relying upon the promise of the nurses and doctors that they would carry out the adoption proceedings, with the agreement of the grandmother and the consent of the mother, the plaintiff was brought by the Winders to Georgia and had been in the custody and control of Ike and Lucile Winder ever since.

The petition relates, upon information and belief, that the plaintiff was deserted by his natural mother and father, but whether this desertion was prior to or subsequent to his being brought to Georgia is not disclosed. It is further alleged that he was given the name Lawrence Winder, and that Ike Winder, since deceased, recognized him as his son and allowed him to buy merchandise on the former's credit; that "the said Lucile and Ike Winder took him in as an infant into their home, treated him as their own child, that he performed all the duties growing out of the relationship of parent and child, that he rendered service and companionship to his fostered parents, and upon that faith such parents stands in loco parentis; therefore upon the death of the fostered parent or parents the child sustain legal relation of their estate as a natural child, although the fostered parents could have failed in the omission of the duty of a formal adoption"; that Lucile and Ike Winder accepted the plaintiff into their home as their son and by reason of the facts alleged he was "virtually adopted" by them, and, "though the adoption was not statutory under the Commonwealth of Virginia, that he is entitled to have the court decree him to be the sole heir at law of the said Ike Winder, deceased."

The petition concludes with the declaration that the plaintiff has no adequate remedy at law, and that unless the defendant is restrained from disbursing the money of Ike Winder's estate the plaintiff will suffer irreparable losses and damage.

The prayers of the petition were, in addition to the usual one for process: that the defendant administrator be enjoined from paying out the funds of Ike Winder's estate; that the plaintiff be decreed to be the adopted son of the deceased, and that the funds held by the administrator be paid over to him; that the plaintiff have such other and further relief as he is entitled to under the law.

From the order of the trial judge sustaining the general demurrer to the petition, the plaintiff brings his bill of exceptions.

QUILLIAN, Justice.

1. As in the case sub judice, the unfulfilled contract to adopt another does not confer upon such person the status of the adopted child of the parties who break the promise nor operate to constitute him the heir at law of the promisor. Crawford v. Wilson, 139 Ga. 654 ( 78 S.E. 30, 44 LRA (NS) 773); Rahn v. Hamilton, 144 Ga. 644 ( 87 S.E. 1061); Taylor v. Taylor, 217 Ga. 20 ( 120 S.E.2d 874); Collins v. Griffin, 93 Ga. App. 282, 285 ( 91 S.E.2d 369). This is true whether the promise to adopt be valid or invalid, enforceable or unenforceable.

In a proper case, where a valid contract to adopt another is breached, the injured party may enforce the contract by suit for specific performance and obtain a decree that he is entitled to have the same benefits from the defaulting parties' estate that would have been his if the contract had been performed and a legal adoption had, according to the terms of the contract.

2. "In order for a court of equity to decree specific performance of a contract, the petition seeking the relief must show the contract is valid. Pair v. Pair, 147 Ga. 754, 757 ( 95 S.E. 295); Crum v. Fendig, 157 Ga. 528, 530 ( 121 S.E. 825); Scott v. Scott, 169 Ga. 290, 293 ( 150 S.E. 154) ... In cases where the contract is to adopt or render certain parties capable of inheriting the estate of another it is uniformly held: `The first essential of a contract for the adoption of a child, where no statutory adoption exists, is that it be made between persons competent to contract for the disposition of the child, and be based upon a sufficient legal consideration.' Rucker v. Moore, 186 Ga. 747, 748 (2) ( 199 S.E. 106)." Lee v. Green, 217 Ga. 860 ( 126 S.E.2d 417).

In the instant case the petition relates that the defendant administrator's decedent, Ike Winder, and his wife, Lucile, visited a hospital where the plaintiff was born, and agreed with unidentified doctors and nurses at the hospital that they would adopt the infant as their son upon the condition that the doctors and nurses "would look after all the legal procedures in connection with the adoption, and see that they were carried out in accordance with the laws of the Commonwealth of Virginia."

The petition is silent as to whether the doctors and nurses had the legal right to assent to the adoption, but does allege no adoption proceedings were even instituted. In these circumstances it must be held that the petition failed to show the Winders, or either of them, assumed a binding contractual obligation to adopt the plaintiff, enforceable by suit for specific performance or any other form of action.

3. There was a direct allegation that the abortive agreement to adopt the plaintiff was the joint undertaking of Ike and Lucile Winder. Mrs. Winder was, under the provisions of Code § 3-301 and the uniform rulings of this court, a necessary and essential party to the suit to enforce the contract ( Graham v. Marks Co., 95 Ga. 38, 39, 21 S.E. 986; Wall v. Wall, 176 Ga. 757, 759, 168 S.E. 893), in the absence of an averment that would have shown her to be dead, beyond the jurisdiction of the court or "not to be found."

The omission to name her as a party to the case was a fatal deficiency and for this reason, in addition to those referred to in the preceding division of the opinion, the petition failed to set forth a cause of action. Sowell v. Sowell, 212 Ga. 351 ( 92 S.E.2d 524); Coleman v. McAdams, 214 Ga. 616 ( 106 S.E.2d 840). "Essential allegations will be neither implied nor presumed, but must be distinctly averred; otherwise, the petition is defective. Evans v. Dickey, 50 Ga. App. 127 ( 177 S.E. 87); Florida State Hospital v. Durham Iron Co., 194 Ga. 350, 355 (5) ( 21 S.E.2d 216)." Ewing v. Paulk, 208 Ga. 722 (1) ( 69 S.E.2d 268); Strother v. Kennedy, 218 Ga. 180, 185 ( 127 S.E.2d 19).

There is an averment that the plaintiff was the sole heir at law of Ike Winder. This was not the equivalent of alleging Lucile Winder was deceased. The averment was a mere conclusion of the pleader unsupported by factual allegations, which under our system of pleading does not serve to set forth any part of a cause of action. Fowler v. Southern Airlines Inc., 192 Ga. 845 (4) ( 16 S.E.2d 897). Particularly is this true since if the fact of his virtual adoption had been sufficiently shown the plaintiff would not have become an heir at law of Ike Winder. Parnelle v. Cavanaugh, 191 Ga. 464, 465 (1) ( 12 S.E.2d 877), and cases cited in Division 1 of this opinion.

The trial judge properly sustained the general demurrer to the petition.

Judgment affirmed. All the Justices concur.