applied to a fact pattern essentially the same as in this case.
In Heien v. Crabtree, Tex., 369 S.W.2d 28 (1963), Frank and Rosa Frei had taken in their home R. F. Frei, who was treated by Frank and Rosa as their own child. R. F. Frei acted in every way like a member of the family, and all members of the family treated him as such. It was agreed that the Freis would legally adopt the child, but this promise was never carried out. Frank and Rosa predeceased R.F., and R.F. died intestate. The plaintiffs, heirs at law of Frank and Rosa Frei, claimed shares of R. F. Frei's estate as collateral relatives by virtue of the 'equitable adoption' of R.F. by Frank and Rosa Frei.
The Texas Supreme Court stated the issue in the case in the following manner:
'The question squarely presented is whether a legal status of parent and child is created by parties assuming and living in a relationship of parent and child pursuant to an unperformed agreement to adopt the child.' 369 S.W.2d at 29.
Such a legal status would be necessary to allow the heirs of the parent to inherit from the child under the applicable Texas statute, which in substance is the same as the relevant Maryland and District statutes in the present case. Vernon's Ann.Texas Civil Statutes, Probate Code, § 40.
In holding that 'equitable adoption' was not the equivalent of legal or statutory adoption, the Court gave the following reasons:
'Petitioner's rights can be no better or higher than the rights of those through whom they claim. If Frank and Rosa had survived R.F. and were seeking to establish a right of succession to his estate, they would not be heard to claim the aid of equity. Through neglect or design they breached their agreement to adopt. More than that, there would be no basis in promises, acts or conduct on the part of R.F. upon which to erect an estoppel. Neither he nor his mother breached a duty to Frank and Rosa or in any way misled them to their detriment.' 369 S.W.2d at 30. (Emphasis added).
This reasoning, the Texas Supreme Court found, was supported by the rationale of the Supreme Court of Missouri in Rumans v. Lighthizer, 363 Mo. 125, 249 S.W.2d 397, 401 (1952), where, in answering an argument similar to that presented by the petitioners in both the Heien and the present cases, the Court held that:
'The right of inheritance from the child is a different right from that of the child to enforce the agreement to adopt. * * * (A) legal or statutory adoption, binding on all persons in accord with the statutory provisions, differs from an equitable adoption, which is based upon contract for the protection of the child and binding on the parties or those in privity with them * * *.'
This Court feels that the reasoning of the Texas and Missouri courts is persuasive in deciding the instant case against the petitioner herein.
The executor in this case further asserts that the petition for caveat by Marie Russell Bury is fatally defective in that it fails to allege an agreement or contract to adopt the decedent, Thomas R. Jarboe, which is the basis of an 'equitable adoption.' However, such a contract may be proved by the acts and admissions of the parties, providing such proof is 'clear, cogent and convincing, so as to leave no reasonable doubt in the mind of the chancellor.' Besche v. Murphy, 59 A.2d at 504.
Be that as it may, it is unnecessary for the Court to decide this latter question. Assuming for the purpose of this motion that the facts of a contract to adopt the decedent is established, it is the holding of the Court that under the law of Maryland an 'equitable adoption' does not give the child the status of being legally adopted, and hence the heirs of the child's foster parents have no claim against his estate should the child die intestate. The petitioner here cannot be considered a 'party in interest' under the applicable District law, and therefore, she has no standing to file a caveat to the will of the decedent, Thomas R. Jarboe.
Petitioner, in opposition to the motion to dismiss, relies on the case of Clayton v. Supreme Conclave, Improved Order of Heptasophs, 130 Md. 31, 99 A. 949 (1917), to support her position that 'legal adoption' was possible in Maryland prior to 1892. However, in Besche v. Murphy the holding of the Clayton case was explained in the following terms:
'That case was a suit on an insurance certificate by beneficiaries who were children adopted in fact at a time when there was no legal method for adoption in the state. The laws of the order which issued the endowment certificate and the certificate itself, specified the persons to whom the endowment should be made payable. Children and grandchildren were included, but adopted children were not. The insuring order had, however, accepted dues and assessments on the policy for 21 years, and the court held that the Heptasophs were estopped from raising the question that the children were not entitled to the proceeds.' 59 A.2d at 502.
In support of her position that 'equitable adoption' creates rights in the foster parents, and consequently in their heirs, against the foster child's intestate estate, the petitioner cites the Georgia case of Alexander v. Lamar, 188 Ga. 273, 3 S.E.2d 656, 123 A.L.R. 1032 (1939). There, however, the Supreme Court of Georgia, applying the generally recognized principles enumerated above, merely held that the doctrine of 'equitable adoption' will not give the natural mother rights to the estate of her child's foster parents. In fact, as noted earlier in this opinion, in the later case of Stith v. Willis, 219 Ga. 62, 131 S.E.2d 620, 622 (1963), the Georgia Supreme Court held that though the equitable adoptee is entitled to specific performance of the contract to adopt, such a contract did not confer upon such person the status of a legally adopted child and did not operate to make him the heir at law of the foster parents.
Thus, these cases lend little, if any, weight to the petitioner's propositions. Moreover, petitioner cites, and the Court has found, no case which has specifically held that the concept of 'equitable adoption' is the equivalent of legal statutory adoption for the purpose of allowing the foster parents or their heirs to inherit from the estate of the foster child.
Therefore, for the foregoing reasons, the executor's motion to dismiss the petition for caveat to the will of Thomas R. Jarboe filed by Marie Russell Bury will be granted.
Counsel will present appropriate order to carry out the provisions of this memorandum opinion.
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