See Franklin v. Gilchrist, 268 Ga. 497 ( 491 S.E.2d 361) (1997); Welch v. Welch, 265 Ga. 89 ( 453 S.E.2d 445) (1995). See Williams v. Murray, 239 Ga. 276 ( 236 S.E.2d 624) (1977); Welch, 265 Ga. at 91 (Carley, J., dissenting). However, there is no evidence of record that appellant's natural father ever agreed to her adoption by Carson.
"Some showing of an agreement between the natural and adoptive parents, performance by the natural parents of the child in giving up custody, performance by the child by living in the home of the adoptive parents, partial performance by the foster parents in taking the child into the home and treating [it] as their child, and ... the intestacy of the foster parent."Williams v. Murray, 239 Ga. 276 ( 236 S.E.2d 624) (1977), quoting Habecker v. Young, 474 F.2d 1229, 1230 (5th Cir. 1973). The only issue on this appeal is whether the court correctly determined that Page was without authority to contract for O'Neal's adoption.
The child, who is often an adult by that time, is allowed to invoke the doctrine of virtual adoption “to avoid an unfair result from the application of intestacy statutes.” Williams v. Murray, 239 Ga. 276, 276, 236 S.E.2d 624 (1977). “Before a recovery based upon an alleged oral contract to adopt will be authorized, proof of such contract must be made out so clearly, strongly and satisfactorily ‘as to leave no reasonable doubt as to the agreement.’ ”
The Franklins introduced no evidence to show that their natural father ever agreed to their adoption by Mr. Washington and no evidence to account for the failure to obtain their natural father's agreement prior to his death. See Williams v. Murray, 239 Ga. 276 ( 236 S.E.2d 624) (1977). Compare Anderson v. Maddox, 257 Ga. 478 ( 360 S.E.2d 590) (1987) (wherein the children's father was dead at time of the adoption agreement between their mother and the cousin of their deceased father).
To establish a cause of action for virtual adoption, there must be some evidence to prove the existence of a definite and specific contract to adopt based upon sufficient legal consideration. Davis v. Bennett, 263 Ga. 714 (2) ( 438 S.E.2d 73) (1994); Chambers v. Chambers, 260 Ga. 610, 612 ( 398 S.E.2d 200) (1990); Williams v. Murray, 239 Ga. 276 (1) ( 236 S.E.2d 624) (1977). At trial, appellant presented evidence that over the years Cox had occasionally introduced appellant to others as his daughter, had referred to appellant's child as his granddaughter, and may have referred to appellant as his daughter in a 1969 unexecuted will.
To sustain a verdict finding virtual or equitable adoption, the evidence must establish the existence of a definite and specific contract to adopt based upon sufficient legal consideration. Williams v. Murray, 239 Ga. 276 ( 236 S.E.2d 624) (1977); Lee v. Green, 217 Ga. 860 ( 126 S.E.2d 417) (1962). The evidence presented at trial relating to the Bennetts' claim that Steve Davis contracted to adopt them as his own children consisted of nothing more than their testimony that they considered Steve Davis to be their father and that Minnie White cared for Davis during a period when he was ill. No evidence was presented of an agreement between Willie Bennett Davis and Steve Davis comprehending or intending an adoption, and the Bennetts both testified that they never talked with either Steve Davis or their mother about an adoption.
"some showing of an agreement between the natural and adoptive parents, performance by the natural parents of the child in giving up custody, performance by the child by living in the home of the adoptive parents, partial performance by the foster parents in taking the child into the home and treating [it] as their child, and ... the intestacy of the foster parent."Williams v. Murray, 239 Ga. 276 ( 236 S.E.2d 624) (1977), quoting from Habecker v. Young, 474 F.2d 1229, 1230 (5th Cir. 1973). See also Rhodes v. Quantrell, 227 Ga. 761 ( 183 S.E.2d 207) (1971).
"Some showing of an agreement between the natural and adoptive parents, performance by the natural parents of the child in giving up custody, performance by the child by living in the home of the adoptive parents, partial performance by the foster parents in taking the child into the home and treating it as their child, and the intestacy of the foster parent."Williams v. Murray, 239 Ga. 276 ( 236 S.E.2d 624) (1977). The trial court granted the judgment n.o.v. after determining there was no direct evidence of an agreement between the natural and adoptive parents.
" In Williams v. Murray, 239 Ga. 276 ( 236 S.E.2d 624) (1977), we listed the elements required to establish a virtual adoption. The first listed, and only element in issue here, is: "`Some showing of an agreement between the natural and adoptive parents.'"
Considering only the sufficiency and not the weight of the evidence, we find it sufficient to support the jury's verdict. Williams v. Murray, 239 Ga. 276 (1) ( 236 S.E.2d 624) (1977); Hazlip v. Morris, supra; Anthony v. Garrett, 236 Ga. 485 (7) ( 224 S.E.2d 347) (1976). 2.