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Foster v. Cheek

Supreme Court of Georgia
Jan 14, 1957
96 S.E.2d 545 (Ga. 1957)

Summary

In Foster v. Cheek, 212 Ga. 821, 96 S.E.2d 545, 546, 550, the claimant had alleged that decedent had orally promised to adopt her, to provide for her welfare, and make claimant "his heir to inherit at his death as if she had been his natural child.

Summary of this case from Pangarova v. Nichols

Opinion

19513.

ARGUED NOVEMBER 13, 1956.

DECIDED JANUARY 14, 1957. REHEARING DENIED FEBRUARY 13, 1957.

Specific performance. Before Judge Whaley. Dodge Superior Court. July 26, 1956.

Hal M. Smith, for plaintiffs in error.

A. R. Ross, Will Ed Smith, contra.


The judgment of the court below overruling the general demurrer to the petition was not erroneous for any reason assigned.

ARGUED NOVEMBER 13, 1956 — DECIDED JANUARY 14, 1957 — REHEARING DENIED FEBRUARY 13, 1957.


Bonnie Jo Cheek, by guardian, brought suit against Mrs. Susan C. Foster, individually and in her representative capacity as administratrix of the estate of David K. Foster, deceased; Jake D. Harrell in his representative capacity as administrator of the estate of David K. Foster, deceased; and Metropolitan Life Insurance Company; seeking to have an alleged contract of adoption specifically performed, to have said petitioner declared the sole heir at law of the deceased, David K. Foster; and to require the administratrix and administrator of the said estate to pay and turn over to petitioner the entire proceeds of said estate, including the proceeds of a certain insurance policy issued by Metropolitan Life Insurance Company pursuant to the provisions of the Federal Employees Group Life Insurance Act; and for other relief.

The petition as amended alleged, after alleging the parties and jurisdictional facts, in substance as follows: that Bonnie Jo Cheek was born on July 14, 1947, and is the daughter of Johnny Cheek and Margie H. Cheek, who later married David K. Foster; that at the death of her father, Johnny Cheek, petitioner was two and one-half years old; that, in order to live, it became necessary for petitioner's mother to go out of the home and go to work and earn a living; that, shortly after the death of petitioner's father, petitioner's mother and the parents of petitioner's mother, Jake D. and Mrs. Nell C. Harrell, entered into an oral agreement under which petitioner's mother voluntarily released all claim to the custody and control of petitioner to Jake D. and Mrs. Nell C. Harrell, and petitioner thereafter lived in the home of the said maternal grandparents.

The petition further alleges that thereafter, on February 1, 1951, and while petitioner was in the custody and control of Jake D. and Mrs. Nell C. Harrell, petitioner's mother married David K. Foster; that shortly thereafter, David K. Foster requested Jake D. and Mrs. Nell C. Harrell to give petitioner to him and his wife, stating to them at said time and in the presence of each other that he and his wife loved the petitioner and desired to rear her in their home; that David K. Foster specifically agreed that he would rear the child as his own natural child; that he was financially able to provide for and educate the child; that, if the grandparents would relinquish all claims to petitioner, David K. Foster would adopt petitioner as his own child and would love and provide for her fully all things essential to her welfare, and make petitioner his heir to inherit at his death as if she had been his natural child. It was further alleged that the parties did not consider it necessary for Margie H. Foster to adopt the child, but she likewise readily agreed to assume and fully perform any duty imposed upon her as a natural mother of the child; that Jake D. and Mrs. Nell C. Harrell then and there accepted said proposition and turned petitioner over unreservedly to David K. Foster and Margie H. Foster; that petitioner then went into the home of David K. and Margie H. Foster and lived with them until the date of their deaths, rendered to them love and affection and services of a dutiful child; that she knew and recognized no other parents; that both David K. Foster and Margie H. Foster recognized her as their child; that David K. Foster treated her as a natural child; and that she assumed the name of Foster and was known as Bonnie Jo Foster.

The petition then alleges that David K. Foster and Margie H. Foster died on July 10, 1955, when their home was destroyed by fire; and that petitioner is unable to ascertain whether Margie H. Foster survived or predeceased David K. Foster; that the administrators of the estate of David K. Foster are ignoring the claim of the petitioner as the virtually adopted child of the said David K. Foster, and are contending that the heirs at law of David K. Foster are Susan C. Foster, his mother, and Harold L. Foster, his brother, and that said persons are entitled to the proceeds of his estate.

The petition further alleges that David K. Foster held a group life-insurance policy as a Federal employee pursuant to the Federal statute in the amount of $10,000 with Metropolitan Life Insurance Company, in which he did not name a beneficiary; that the Federal statute and the master policy provided that, in the event there is no designated beneficiary, the proceeds thereof "shall be payable to the person or persons listed below surviving at the time of the employee's death in the following order of precedence:

(1) To the widow or widower of the employee;

(2) If neither of the above, to the child or children of such employee and descendants of deceased children by representation;

(3) If none of the above, to the parents of such employee or the survivor of them;

(4) If none of the above, to the duly appointed executor or administrator of the estate of such employee;

(5) If none of the above, to the other next of kin of such employee as may be determined by the office to be entitled under the laws of domicile of such employee at the time of his death."

The petition alleges that the surviving parent of the employee, David K. Foster, is Mrs. Susan C. Foster; and that it cannot be determined whether the mother of the petitioner survived or predeceased David K. Foster, they having died in a common disaster, as previously stated; that the defendant Metropolitan Insurance Company declines to recognize petitioner as the beneficiary under the life-insurance policy involved, and is threatening to pay the proceeds thereof to Mrs. Susan C. Foster; that David K. Foster had no natural children; and that the petitioner is the sole heir at law of the said David K. Foster by reason of her being his child by virtual adoption; that she is entitled to the entire estate of David K. Foster and to the proceeds of the insurance policy in question. It is alleged that the petitioner has no adequate remedy at law; and that David K. Foster did not institute adoption proceedings as provided by law.

The prayers of the petition were that petitioner be declared the sole surviving heir at law of David K. Foster; that the administrators be required to pay over to petitioner the entire proceeds of the estate of David K. Foster; that the court declare petitioner to be the child of David K. Foster by virtual adoption and entitled to all the benefits flowing to a natural child; that defendants be restrained and enjoined from any act which would deny petitioner's right as a child of David K. Foster.

The defendant Mrs. Susan C. Foster, individually and in her representative capacity, filed her answer and general demurrer to the petition. The defendant Jake D. Harrell filed no defensive pleadings. By agreement of all parties, Metropolitan Life Insurance Company was permitted to pay into the registry of the court the sum of $10,000, representing the company's liability under the policy, and said company was fully and finally discharged. Thereafter, the demurrer to the petition was overruled. The exception here is to this judgment.


1. The plaintiff in error first contends that the alleged contract of adoption ought not to be specifically performed because there was no valid contract, for the reason the alleged agreement was made with persons who were not competent to contract with reference to the subject matter of the alleged contract. Without deciding whether or not a person or persons having the parental powers is a competent party to make a valid contract for the adoption of a minor child in his custody and control, such as a court of equity will specifically enforce upon the death of the adopting party without making a legal adoption of the said child — there is another applicable rule of law which controls this contention adversely to the plaintiff in error, whatever the answer to this question might be. This rule of law is that a contract of adoption of a minor child, though made in the first instance with one not legally authorized to make such a contract, may thereafter be ratified by the person or persons who were legally authorized to make such a contract so as to entitle said contract to be specifically enforced in equity if the adopting party fails to secure a legal adoption. See, in this connection, Crawford v. Wilson, 139 Ga. 654 ( 78 S.E. 30, 44 L.R.A. (NS) 773); Mock v. Neffler, 148 Ga. 25 ( 95 S.E. 673); Pierce v. Harrison, 199 Ga. 197 ( 33 S.E.2d 680).

In the instant case, the allegations of the petition are sufficient to show an acquiescence in and a ratification of the contract in question by the mother of the child, who was certainly the only person, other than the grandparents, that it could have been contended would be authorized to make the contract. The petition alleges that the mother of the child was present when the contract was alleged to have been made; that she at the same time agreed to resume her parental relationship; that the proposition was accepted by the grandparents, and the child was immediately taken to the home of David K. and Margie H. Foster; that she lived in said home from that time until the deaths of the Fosters some four years later. These allegations certainly show an acquiescence in and ratification of the contract made between David K. Foster and Mrs. Nell C. Harrell within the rulings of the cases above cited.

2. It is next contended that the contract in question is not entitled to be specifically enforced for the reason it was without consideration. This court has decided that the consideration required under such contract as is here involved may be the detriment to the party surrendering the child; the change in the domestic status of the child; the benefits in love and affection and services accruing to the adopting party. See Savannah Bank Trust Co. v. Wolff, 191 Ga. 111 ( 11 S.E.2d 766); McWilliams v. Pair, 151 Ga. 168 ( 106 S.E. 96). It is not necessary to allege the particular value of the services which were performed or were to be performed by the person to be adopted. Rieves v. Smith, 184 Ga. 657 ( 192 S.E. 372, 112 A.L.R. 368). The petition in the instant case alleges that the grandparents surrendered their custody of the child; that the child's domestic status was changed and she went to live in a new home with new associations, and into the custody and control of new persons; that she rendered to them the love and affection and the services of a dutiful child. This is certainly a sufficient consideration for the contract in question.

It is contended, however, that the rulings in Taylor v. Boles, 191 Ga. 591 ( 13 S.E.2d 352), and Fargason v. Pope, 197 Ga. 848 ( 31 S.E.2d 37), demand a contrary ruling. We do not agree with this contention. In those two cases, the parent of the child, having custody and control of said child, married the adopting party and made the contract with the adopting party. It was there held in effect that the consideration relied upon in the usual virtual-adoption cases would not necessarily be sufficient where the adopting person is the step-parent, "and it does not appear that the same situation would not have prevailed without regard to the adoption contract." Taylor v. Boles, supra, headnote 2. In other words, it does not appear in those cases that the changed domestic status of the child, the love and affection and services rendered by the child, and other changes in status, resulted from the adoption contract rather than from the fact that the child became the "stepchild" of the adopting party. This is not true in the instant case, since it appears that the various changes in status on the part of all parties came as a direct result of the contract and not by reason of the marriage of the mother of the petitioner, who did not have custody of petitioner, to the adopting party.

It therefore follows, from what has been said above, that the petitioner in the instant case is entitled to have a court of equity specifically enforce the contract here involved.

3. The next question presented is, whether or not this petitioner, who, as held above, is entitled to have the contract of adoption specifically performed, is entitled to the proceeds of the insurance policy in question. The policy of insurance was issued under the provisions of the Federal Employees Group Life Insurance Act as set out in 5 U.S.C.A., Ch. 24, §§ 2091-2103, and contains identical provisions with reference to beneficiaries as the above cited act. These provisions, in so far as is material here, are as follows: First, to the named beneficiary, if any. Secondly, if no named beneficiary, to the widow or widower of the employee. Thirdly, if none of the above, to the child or children of the employee and the descendants of deceased children by representation. Fourthly, if none of the above, to the parents of such employee or the survivor of them.

In the instant case, there was no designated beneficiary. The employee and his wife died in a common disaster, and the petition alleges that the petitioner is unable to determine whether her mother survived or predeceased the employee. The third order of payment is to the child or children of the employee, under which the petitioner claims to be entitled to the proceeds of the policy. The defendant in the court below, the mother of the employee, contends that the plaintiff is not entitled to the proceeds of the policy, since she is not a child of the employee, but that the defendant is entitled to the proceeds of the policy under the fourth order of payment. The question, therefore, is whether or not the plaintiff in the court below is entitled to receive the benefits of the insurance policy in question as a child within the provisions of the Federal Employees Group Life Insurance Act, supra, and the terms of the policy.

We recognize that the Congress can define, and in a number of cases has defined, the word "child" in its acts. However, in the instant case, neither the Federal Group Life Insurance Act nor the insurance contract has defined that term as used in the act in question. There being no Federal law of domestic relations, which is primarily a matter of State concern (DeSylva v. Ballentine, 351 U.S. 570, 76 Sup. Ct. 974, 100 L. ed. 1415), we must look to the law of this State in order to determine whether or not the defendant in error in the instant case occupies the position of a "child" under the provisions of the act above referred to and the policy of insurance involved.

In the beginning, it is clear from many decisions of this court that, under a virtual adoption, no relationship of parent and child is created, but it is only a court-given name to a status arising from and created by contract where one takes and agrees to legally adopt the child of another but fails to do so. Baker v. Henderson, 208 Ga. 698 ( 69 S.E.2d 278), and Rahn v. Hamilton, 144 Ga. 644 ( 87 S.E. 1061). It is also clear that the proceeds of this insurance policy are not and do not become a part of the estate of the deceased employee and do not pass under the laws of inheritance, but do pass directly to the beneficiary under the terms of the policy. Saville v. Lee, 43 Ga. App. 263 ( 158 S.E. 441).

Under the terms of the act of the General Assembly passed in 1949 (Ga. L. 1949, p. 1157, as codified in Code, Ann. Supp., § 74-414), it is clear that this child, if the legal adoption had been made by the deceased employee, would have been entitled as a child to the proceeds of this policy of insurance. Since that was not done, she has come into a court of equity seeking to enforce her rights under a contract which, if it had been complied with, would have entitled her to the benefits under the policy of insurance. 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 formally and legally adopt the child involved. Crawford v. Wilson, 139 Ga. 654, supra; Ware v. Martin, 207 Ga. 512 ( 63 S.E.2d 335). Since under the allegations of the petition, one of the benefits which the plaintiff in the court below would have received if the contract had been fully performed would have been to received the proceeds of the insurance policy in question, equity will grant the relief prayed for; and, if the plaintiff successfully proves her case, will decree that this child is entitled to the said proceeds as a child of the deceased employee. It follows, therefore, that the judgment of the court below, overruling the general demurrer to the petition, was not error.

Judgment affirmed. All the Justices concur.


Summaries of

Foster v. Cheek

Supreme Court of Georgia
Jan 14, 1957
96 S.E.2d 545 (Ga. 1957)

In Foster v. Cheek, 212 Ga. 821, 96 S.E.2d 545, 546, 550, the claimant had alleged that decedent had orally promised to adopt her, to provide for her welfare, and make claimant "his heir to inherit at his death as if she had been his natural child.

Summary of this case from Pangarova v. Nichols
Case details for

Foster v. Cheek

Case Details

Full title:FOSTER et al. v. CHEEK, by Guardian, et al

Court:Supreme Court of Georgia

Date published: Jan 14, 1957

Citations

96 S.E.2d 545 (Ga. 1957)
96 S.E.2d 545

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