In Savannah Bank Trust Co. v. Hanley, 208 Ga. 34 (65 S.E.2d 26), on the former appearance of this case in this court, it was held that a part of the consideration of the alleged contract to make a will — the agreement by the mother to surrender possession of her infant child, in order to receive a benefit for herself and her other children — was void as being against public policy.Summary of this case from Hanley v. Savannah Bank Trust Co.
ARGUED MARCH 12, 1951.
DECIDED APRIL 9, 1951. REHEARING DENIED MAY 16, 1951.
Specific performance. Before Judge D. S. Atkinson. Chatham Superior Court. December 30, 1950.
Gazan, Walsh Bernstein, for plaintiff in error.
Joseph Scott and John M. Brennan, contra.
Where a mother surrenders possession of her infant girl to a third person, for the purpose of having the child adopted by him, in consideration of an alleged promise by the wife of said third person to leave to the mother her entire estate by will, such contract is void as against public policy; and where, as here, other allegations as to services rendered to the foster mother were insufficient to set forth a cause of action for specific performance of the alleged parol contract to make a will, the trial court erred in overruling the defendant's grounds of general demurrer.
Nos. 17416, 17426. ARGUED MARCH 12, 1951 — DECIDED APRIL 9, 1951 — REHEARING DENIED MAY 16, 1951.
Mrs. Sarah Hanley and others filed in Chatham Superior Court, against Savannah Bank Trust Company, as executor of the will of Mrs. Elizabeth Walker Comer, deceased, a petition seeking specific performance of an alleged parol contract to make a will. The petition as twice amended alleged substantially the following: The petitioner, Mrs. Sarah Hanley, is the widow of the late Marion Francis Hanley, who was a brother of Mrs. Comer, the deceased. The other petitioners are children (seven daughters and one son) of Mrs. Sarah Hanley and Marion Francis Hanley (who died on July 25, 1928), and thus are a nephew and nieces of Mrs. Comer. Her estate is of the approximate value of $88,000, and in addition thereto there is an interest in a "New York Trust Fund" estimated to be worth $164,000. Mrs. Comer first became acquainted with Mrs. Sarah Hanley in 1912, and their friendly relationship became strengthened as the years went by. Mrs. Comer became attached to Mrs. Sarah Hanley's daughter, Theresa, who is not one of the petitioners, and derived much pleasure in the association and companionship of Theresa. Mrs. Comer and her husband, Hugh M. Comer, caused to be brought, in the Superior Court of Chatham County to the October Term, 1928, a proceeding styled: Theresa Hanley, be her next friend and paternal aunt, Elizabeth Walker Comer, v. Hugh M. Comer and Sarah Hanley — a suit for the specific performance of an alleged contract to adopt Theresa. Attached to the proceeding was a letter dated November 13, 1928, stating that Mrs. Sarah Hanley was absolutely and unalterably opposed to the adoption of her daughter. Mrs. Sarah Hanley was importuned by Mrs. Comer after receipt of the letter to retract and permit said adoption.
Thereafter, Mrs. Comer orally agreed to make a will and leave all of her property to Mrs. Sarah Hanley and her children. The consideration for this promise was past services rendered by Mrs. Sarah Hanley and her children to Mrs. Comer's mother, Mrs. Jane McCloyne Hanley, that Mrs. Sarah Hanley was to agree to the adoption of Theresa, and that she and her children should render to Mrs. Comer services of such character as could be rendered only by a close relative.
The past services to Mrs. Comer's mother were alleged to have been caring for her every want, Mrs. Comer's mother spending summers in the petitioner's home, cooking, preparing special meals as she suffered from diabetes, and buying special medicines from their own funds, shopping, and running errands.
It was alleged that Mrs. Sarah Hanley withdrew her objection and agreed to the adoption proceedings. It was also alleged that the petitioners rendered devoted services to Mrs. Comer, such as waiting on her and her husband, being at their beck and call, running errands, nursing them when sick, acting as companion on various trips, making their home her home, and coming to her rescue when Theresa and her husband would mistreat her. Every condition precedent to the execution and carrying out of the contract has been complied with by the petitioners, and they dutifully attended to and showered affection on Mrs. Comer and her mother, from which were derived pleasure, comfort, and enjoyment, and the petitioners are legally entitled to said entire estate.
General and special demurrers were interposed by the defendant to the petition as amended. The trial court overruled the defendant's general demurrers and all grounds of special demurrer, except one complaining that there was not annexed to the petition a copy of the trust referred to as a "New York Trust Fund," which ground was sustained.
The defendant in a direct bill of exceptions excepted to the judgment overruling its general demurrer, and to the overruling of the aforesaid grounds of special demurrer.
The petitioners filed a cross-bill of exceptions, assigning error on the judgment sustaining the ground of the defendant's special demurrer in reference to the "New York Trust Fund."
To the petition as amended, the defendant demurred on the ground that the petition and the amendments thereto did not set forth any cause of action against the defendant.
"Specific performance is not a remedy which either party can demand as a matter of absolute right, and will not in any given case be granted unless strictly equitable and just. Mere inadequacy of price may justify a court in refusing to decree a specific performance of a contract of bargain and sale; so also may any other fact showing the contract to be unfair, or unjust, or against good conscience. And in order to authorize specific performance of a contract, its terms must be clear, distinct, and definite. A petition for specific performance, which fails to allege a case authorizing the relief sought under the application of the above-stated rules, is subject to demurrer." Shropshire v. Rainey, 150 Ga. 566 (2) ( 104 S.E. 414); Huggins v. Meriweather, 177 Ga. 461 (1) ( 170 S.E. 483); Whitehead v. Dillard, 178 Ga. 714, 717 ( 174 S.E. 244); Brogdon v. Hogan, 189 Ga. 244, 249 ( 5 S.E.2d 657); Coleman v. Woodland Hills Co., 196 Ga. 626 (1) ( 27 S.E.2d 226); Holliday v. Pope, 205 Ga. 301 (1) ( 53 S.E.2d 350).
A controlling question is whether the present alleged contract is void as against public policy because it is based upon an illegal consideration, namely an agreement by the mother to surrender her rights in the child for the promise of a legacy by Mrs. Comer.
In Savannah Bank Trust Co. v. Wolff, 191 Ga. 111 (1) ( 11 S.E.2d 766), this court held that, "Where the mother of an infant girl, . . agrees to surrender and does actually surrender the child, . . to a third person for the purpose of having the child adopted by him, . . and said third person in turn agrees to adopt, care for, and rear the child and leave to her one half of his estate by will, a contract arises mutually binding and enforceable on both sides." See, in this connection, 57 Am. Jur. 173, § 195; 68 C. J. 571, § 189; annotations in 15 A.L.R., p. 223; and 142 A.L.R., p. 84. The contract in the Wolff case differs from the one now before the court, in that there the agreement was to leave the property to the adopted child, whereas the agreement here in question was to leave it to the mother and a brother and sisters of the adopted child.
This court has not found any case, nor have counsel for either side cited one, which, like the present contract, involves an agreement to leave the property to a mother in consideration of her allowing the foster parent to adopt her minor child.
So much of the present contract as provided that the mother agreed to surrender possession of the child in consideration of a legacy that was to be made to her and a brother and sisters of the adopted child, was void as being against public policy. This is true for the reason that to hold otherwise would open the door to the unlimited barter of children. The fact that it was alleged that the adopted child in the case under review received great benefits does not require a different ruling.
Another question for determination is whether other allegations of the petition, in reference to services that were alleged to have been rendered to Mrs. Comer, or to her mother, were sufficient to set forth a cause of action for specific performance of the parol contract to make a will.
The allegations of a petition, when attacked by demurrer, are to be construed most strongly against the pleader. A demurrer admits only such facts as are well pleaded, and not the legal conclusions drawn therefrom by the pleader. Lee v. City of Atlanta, 197 Ga. 518, 520 ( 29 S.E.2d 774), and cases cited. The petition in the present case did not with precision give the terms of the contract or its date, and the services to be performed were alleged in a loose and most general way, without averring facts upon which conclusions were based. Under the allegations of the petition, the parol contract was entered into some time during the five-month interval that occurred between November 13, 1928 (the date of the letter stating that the mother objected to the adoption of her daughter), and April 13, 1929 (the date on which the decree of adoption was rendered). The mother of Mrs. Comer died in 1924, so any services rendered to her would have been some four years before the alleged contract was entered into. It is alleged that on many occasions Mrs. Comer expressed the desire to leave her entire estate to the petitioners, but no date is given, and it is not alleged where such statements were made. This court in Russell v. Switzer, 63 Ga. 711, 725 (quoted in Lansdell v. Lansdell, 144 Ga. 571, 572, 87 S.E. 782; Shropshire v. Rainey, 150 Ga. 566, 569, 104 S.E. 414; Salmon v. McCrary, 197 Ga. 281, 286, 29 S.E.2d 58), after citing cases from other jurisdictions, said: "None of these cases, however, are in point on the present discussion, further than they bear upon the requisites of general law concerning the fact of contract and the fulness and certainty of the evidence by which it is sought to be established. They inculcate a wholesome caution against building up imaginary contracts out of the expression of generous intentions towards persons who, having rendered service, prefer claims for compensation after those whom they served have been removed by death. And the caution is doubly necessary where the claim presented is not merely for just compensation on the basis of a quantum merit, or to some specific article or articles of property, but goes to the entire estate, real and personal, which the decedent left behind him."
It was alleged that the petitioners agreed to make their home her home when desired, but nowhere is it averred that the petitioners ever lived in Mrs. Comer's home or that she lived in their home or on what dates or for how long a time this alleged relationship existed. A comparison of the facts alleged in the present case with those averred in Bullard v. Bullard, 202 Ga. 769 (1) ( 44 S.E.2d 770), Holliday v. Pope, 205 Ga. 301 (1a) (supra), and similar cases, will show that the facts here alleged fall far short of bringing the present case within the exception, that the value of services does not have to be set forth where one goes into the home of a near relative agreeing to nurse and give the other personal, affectionate, and considerate attention such as could not be readily procured elsewhere, and where the value of such services could not be readily computed in money.
The present petition as amended, when stripped of its legal conclusions, sets forth no allegations of fact to authorize the grant of specific performance of the alleged parol contract to devise the entire estate of Mrs. Comer, and the trial court erred in overruling the defendant's general grounds of demurrer.
Judgment reversed on the main bill of exceptions. Cross-bill of exceptions dismissed. All the Justices concur.