In a suit against the administrator of an estate left by a woman at her death, to declare virtual adoption by her of the plaintiff as a child, on the basis of full performance of the contract, where the evidence shows that the adopter agreed that if the child would live with her as her own, the child should have her property, but that the contract contained no provision for the adoption of the child, the evidence does not entitle the petitioner to recover, and the defendant is entitled to a judgment of nonsuit.

No. 14141. MAY 26, 1942.

Lena Jones brought suit in equity against Willie O'Neal as administrator of the estate of Rhoda McCree, alleging that the plaintiff's mother died when the plaintiff was only eighteen months of age; that she was an illegitimate child never recognized by her father; that upon the death of her mother she was carried to the home of Rhoda McCree's mother, where she resided until she was fifteen years of age; that when she was fifteen years of age, Rhoda McCree, who was a married woman aged thirty-two, morally and financially able to properly take care of petitioner, together with Jud McCree, husband of Rhoda, entered into an agreement by the terms of which Rhoda and Jud McCree accepted petitioner as their child, agreed to adopt her as such, furnish her with necessities, take care of and love her, and that she should inherit from each of them as a child, and in consideration thereof petitioner agreed to become their child, accept them as her parents, to be adopted by them, and to love and respect them and do all chores and work in the home; that immediately petitioner moved with them to Thomasville into their home and performed the duties of a child for several years and until she became nineteen years of age, at which time she married and moved away; that six or seven years later, when she was twenty-five or twenty-six years of age, she returned to the home of her adopted mother, and they both ratified the contract made when petitioner was fifteen years of age, and in consideration of the ratification petitioner lived in the home of Rhoda McCree for eleven years, giving her petitioner's love and respect, cared for her, kept house, washed dishes, washed clothes, and did every duty required of a child by her parents; that when petitioner became thirty-six years of age, with the consent of Rhoda McCree she married John Jones, after which marriage she and her husband remained in the home of Rhoda McCree more than a year. rendering services to Rhoda McCree, and after petitioner moved away she frequently returned to the home of Rhoda McCree to render services to her, which continued until Rhoda's death; that Rhoda McCree left an estate consisting of real and personal property; that the personal property is more than sufficient to pay all debts of the estate; that she had no children, and petitioner is entitled to receive her entire estate as her adopted daughter and sole heir; and that petitioner makes this claim based upon the contract to adopt and its ratification as set forth in her petition.

On the trial the plaintiff introduced as a witness Hattie Weston, who testified, in substance, as follows: Rhoda McCree told witness that Lena Jones was her child; that she took her when she was a little baby; that when she died she wanted Lena to have her house; that she thought Lena deserved it because she had always been an obedient child; that if anything happened to her she wanted Lena to have the house; that she told Lena when she first married and went to Florida that if she did not like it down there she would send for her; that thereafter she sent for Lena, and when Lena returned she told Lena that if she stayed there with her as her daughter, at her death Lena could have the place. Rhoda never told witness of any direct conversation between Lena and herself; she only told her about this property. She never recited any conversation she had had with Lena Jones, but she did say that she told Lena that if she would stay with her as a daughter she wanted her to have what she had; and that Lena agreed and did stay with her until she married. Rhoda did not tell witness what year Lena came back from Florida, or what year Lena married the second time. Witness did not know whether Rhoda knew how long Lena was to stay with her or not. Rhoda did not say how long Lena to stay with her under the agreement, but Lena was supposed to stay there until she married. To witness's own knowledge Lena Jones did live with Rhoda McCree and to her render many services including waiting upon her during her last illness.

John Jones, husband of petitioner, testified, that Rhoda told him that Lena was her child; that just before she died she told him that she was weakening fast, and that if she died she wanted Lena to have what she had; that he asked her why she did not fix it so Lena would get it, as that was what she wanted to happen, and Rhoda replied that was what she was going to do, but that if she died without getting it fixed she wanted him to stand up like a man for Lena's rights. Penny Lewis testified, that Lena lived for years with Rhoda McCree, who always said that Lena was her daughter; and that Rhoda told witness that she wanted her to see that Lena got her property, because Lena took care of her when everybody was gone. The plaintiff testified, that she was in the home of Rhoda McCree's mother when she first knew anything; that she cooked, washed and ironed, and rendered other services; that she married when she was nineteen years of age, and stayed away from the home of Rhoda McCree for seven years; that she then returned at the age of twenty-six and remained in Rhoda's home for a period of approximately fourteen years; and that she was present when Rhoda McCree told Hattie Weston that she was Rhoda's child.

The defendant moved for a nonsuit on the ground that the allegations of the petition had not been proved, and that the evidence introduced was insufficient to make out a case. Nonsuit was granted and the case dismissed, and the plaintiff excepted.

DUCKWORTH, Justice.

The plaintiff's right to recover is based upon her claim of virtual adoption. The petition alleges that there was a contract between petitioner and Rhoda McCree, by the terms of which Rhoda McCree was obligated to adopt petitioner; but the evidence is silent on this question. In Crawford v. Wilson, 139 Ga. 654, 658 ( 78 S.E. 30, 44 L.R.A. (N.S.) 773), it was said: "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 adopting 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." It will be observed from the language above quoted that an essential of the contract is "an agreement to adopt." The relief which equity grants 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. This relief should not be confused with the relief which one may obtain in a suit at law for services rendered in consideration of a promise to give described property. Resort to equity for the latter relief would not be necessary; for a suit at law against the administrator would be a proper remedy. In Crum v. Fendig, 157 Ga. 528 ( 121 S.E. 825), the petitioner alleged, that she was the adopted child of the deceased; that she was taken into his home when she was about three years of age, adopted his name, obtained the consent of her adopter to marry; that the adopter at various times represented, contracted and agreed that in the event of his death she would be amply provided for; that he had adopted petitioner as his child, and it was generally known that the papers had been taken out with reference to the adoption. In affirming a judgment sustaining a general demurrer to the petition, it was said: "But virtual or equitable adoption must be founded upon a contract and performance in accordance with the terms of the contract by the person claiming to have been adopted; and no contract is here found." The opinion pointed out that in Crawford v. Wilson, supra, the contract expressly obligated the adopter to take the petitioner and do unto her as her own child and "to adopt her as such, with all the rights of a child related to her as such by blood." In Scott v. Scott, 169 Ga. 290 ( 150 S.E. 154), it was said: "The plaintiffs fail to show, by proper allegations in the petition, a contract to adopt, made with any one competent to contract; and the court did not err in sustaining the general demurrer." To the same effect, see Ray v. Kinchen, 166 Ga. 788 ( 144 S.E. 317). The evidence being wholly lacking in this essential respect, it did not authorize a grant of any of the relief sought by petitioner, and the defendant was entitled to a judgment of nonsuit.

Judgment affirmed. All the Justices concur.