Summary
In Baker it was found that the petitioners would not be injured by probate of the will and their petition to intervene was rejected, because they could not benefit by showing that the will was invalid.
Summary of this case from Lavender v. WilkinsOpinion
17690.
SUBMITTED JANUARY 14, 1952.
DECIDED FEBRUARY 11, 1952.
Probate of will. Before Judge Nichols. Gordon Superior Court. September 11, 1951.
Mitchell Mitchell and J. G. B. Erwin, for plaintiffs in error.
Y. A. Henderson, James Maddox, R. F. Chance, R. Carter Pittman, J. B. Langford, Warren Akin, Solicitor-General, and Eugene Cook, Attorney-General, contra.
The court properly sustained a general demurrer to the petitioners' application for leave to intervene and be made parties. The allegations of their petition show that they are strangers to the copy will sought to be established and probated.
No. 17690. SUBMITTED JANUARY 14, 1952 — DECIDED FEBRUARY 11, 1952.
P. N. Henderson and his wife resided in Gordon County. No child was born to them, and Mrs. Henderson predeceased her husband. By will, P. N. Henderson left his entire estate to Jimmie Henderson, who was not related to him in any way, but was reared by him from infancy. His will, so far as the record shows, was not contested. Jimmie Henderson died August 17, 1950, leaving no wife, child, lineal descendant, or other ascertainable heir. Carol Henderson, by and through her next friend, C. O. Cook, filed a proceeding in the Court of Ordinary of Gordon County, Georgia, to establish and probate in solemn form a copy of an alleged will of Jimmie Henderson, averring that it was properly executed, but had been lost or destroyed since his death, and that she was by the terms thereof sole beneficiary. W. F. Rowland, as guardian of Jimmie Henderson at the time of his death and afterwards ex officio administrator of his estate, filed a caveat objecting to the establishment and probate of the copy instrument so offered, upon the ground that the deceased left no will; but alleged that, if he had ever actually made one, it was revoked by him during his lifetime; that he did not possess testamentary capacity at the time the alleged will was purportedly executed; that it was not properly executed; and that it was void for uncertainty and injustice. On the hearing, the propounder's prayers were refused by the ordinary; and she, in due time, entered an appeal to the superior court. Afterwards, the State of Georgia filed a petition for leave to intervene in the proceeding, alleging that the deceased Jimmie Henderson died intestate; that he left no ascertainable heirs at law; and that his estate had escheated. The State was allowed to intervene and, as to that ruling, no exception was taken. Mrs. Maude Henderson Baker and several others, also, filed a joint petition for leave to intervene, and their application therefor in substance alleges: that they are blood heirs of the deceased P. N. Henderson; that Jimmie Henderson was an adopted son of P. N. Henderson; that he died intestate; that the copy instrument offered as his will should not be established, probated, and recorded as such for the reasons alleged in the caveat filed by W. F. Rowland in his representative capacity, which they adopt as their allegations; and that, since Jimmie Henderson as an adopted son of P. N. Henderson died intestate without ascertainable heirs, they are entitled to take by inheritance as heirs at law of P. N. Henderson all of the property which Jimmie Henderson received under the will of P. N. Henderson. The State of Georgia demurred generally to the petition for leave to intervene as filed by Mrs. Baker and others, on the ground that it shows on its face that they have no interest in the estate of Jimmie Henderson, and consequently no right to intervene for the purpose of contesting his will, about which they are not concerned. The propounder also interposed general and special demurrers to the petition filed by Mrs. Baker and others; and their general demurrer challenged the sufficiency of their petition to state a proper cause for leave to intervene, because (1) it did not allege any right in them, legal or equitable, to become parties for the purpose of objection to the probate of the testator's will; (2) the facts alleged in their petition affirmatively show that they have no interest in his estate or concern about the probate of his will; and (3) their petition fails to show that P. N. Henderson's estate had not been delivered by his legal representative to the beneficiary, Jimmie Henderson, during his lifetime. As propounder she demurred specially to paragraph 3 of the petition, upon the grounds that it was not alleged when, where, or in what court Jimmie Henderson was adopted by P. N. Henderson; that no copy of the adoption proceeding was attached to their petition or otherwise shown thereby; and that no facts sufficient to show virtual adoption were alleged. To meet the demurrers, Mrs. Baker and her several copetitioners amended their application for leave to intervene, and alleged that Jimmie Henderson died intestate before receiving the property bequeathed to him by P. N. Henderson; but that it had been received by and was in the hands of his guardian at the time of his death, who now holds it as an escheator. The amendment further alleges that P. N. Henderson found Jimmie Henderson, as a very young baby, on his doorstep, took him into his home, gave him his name, held him out to the general public as his son, furnished him the necessities of life, educated him, did all of the things for him which a natural father would do for his own son, and finally made a will giving him his entire estate, referring therein to him as his son. During the same time, Jimmie Henderson recognized P. N. Henderson as his father, obeyed him as such, and represented to the public that he was his father. The public generally recognized the relation between the two as that of father and son. The demurrers, being renewed to the petition as amended, were sustained, and leave to intervene for the purpose of objecting to probate of the offered copy will was denied the petitioners. To that ruling they excepted and by direct bill of exceptions brought their case to this court for review.
It is said in the brief filed by counsel for the plaintiffs in error that the only question presented for decision by the writ of error is whether or not these complaining petitioners have any interest in the establishment and probate of a copy of Jimmie Henderson's purported will. As to this, opposing counsel concur and so do we. Concededly, if these petitioners will not be injured or benefited by the establishment and probate of the alleged copy will, they are therefore strangers to it, and are not proper parties to this litigation. 57 Am. Jur. (Wills) 540, § 597; 68 C. J. (Wills) 902, § 631 (c); Pierce v. Felts, 148 Ga. 195 ( 96 S.E. 177). It is contended and argued in the present case that these petitioners, as blood heirs of P. N. Henderson, will be injured if the instrument offered as a copy of Jimmie Henderson's will is established and probated under Code § 113-611, and for that reason they should be allowed to intervene and be made parties to the pending probate proceeding for the purpose of contesting the establishment and probate of the purported copy will of Jimmie Henderson. To this we do not agree for the following reasons:
(a) As shown by the preceding statement of facts, these petitioners for leave to intervene base their claim to the estate of P. N. Henderson — notwithstanding his devise of it to Jimmie Henderson — upon the provisions of an act passed by the legislature in 1917 (Ga. L. 1917, p. 101), now embodied in the Code of 1933 as § 85-1107, which declares: "If there shall now or hereafter be any property in this State in the hands of an administrator or escheator to which the husband or wife or adopted child of the deceased was an heir, but such widow, husband, or adopted child, before receiving possession of said property, has died intestate in respect thereto, and without ascertainable heirs, such property shall not escheat to the State, in case there are heirs of the blood of such deceased person, but shall be held to belong to the persons who would have inherited the same had such marriage or adoption not occurred." In this case, the petition for leave to intervene and become parties, as amended, alleges that the property bequeathed by the testator P. N. Henderson to Jimmie Henderson was in the hands of the latter's guardian at the time of the devisee's death; and, since the guardian's possession of the devised property at that time was in law unquestionably his ward's possession, the petition must be construed as alleging that the devisee had received possession of the property bequeathed to him before his death, and citation of authority for this statement is not necessary.
(b) Formal adoption, or adoption according to the statutes of this State, is not relied on in this case, but the amended petition and the brief filed by counsel for the plaintiffs in error allege and state that the petitioners predicate their claim on the theory that Jimmie Henderson was virtually adopted, and that a person so related to the deceased comes within the meaning of the cited act of 1917. We do not think so. Virtual adoption is not adoption. It is merely a court-given name to a status arising from and created by a contract where one takes and agrees to legally adopt the child of another, but fails to do so. In such a case there is no legal adoption, but a court of equity, considering that done which ought to have been done, will decree to the injured child, from the estate of him who has so breached his contract to adopt, the equivalent of the benefit which the child would have received had the adopter performed his contractual obligation to formally and legally adopt the child, but the relation of parent and child by adoption does not result therefrom. See in this connection, Crawford v. Wilson, 139 Ga. 654 ( 78 S.E. 30, 44 L.R.A. (N.S.) 773); Jones v. O'Neal, 194 Ga. 49 ( 20 S.E.2d 585); Ware v. Martin, 207 Ga. 512 ( 63 S.E.2d 335). However, we would not like to be understood as holding or intimating that the amended petition in this case alleges facts which are sufficient to show virtual adoption.
For the reasons stated in the two preceding divisions, it necessarily follows that the judgment complained of is not erroneous.
Judgment affirmed. All the Justices concur.