The opinion of the court was delivered by: TAMM
This case is before the Court on a motion by the executor of the will of the decedent, Thomas R. Jarboe, to dismiss the petition for caveat to said will filed by the petitioner, Marie Russell Bury.
Thomas R. Jarboe, a domiciliary of the District of Columbia, died on December 14, 1963, leaving a will appointing the Washington Loan & Trust Co. (now, by consolidation, the Riggs National Bank of Washington) as executor and naming the Phillips Exeter Academy as the sole residuary legatee. Petitioner, Marie Russell Bury, as the daughter of the natural daughter of decedent's foster parents, claims to be decedent's niece and as such asserts the right to attack his will on the grounds that decedent was not of sound mind when he made it.
For the purpose of this motion, the facts appear to be as follows: The decedent, Thomas R. Jarboe, was born in 1873. He was placed in an orphanage in the city of Baltimore in 1878 and was subsequently taken into the home of Mathew and Jane Jarboe, the maternal grandparents of the petitioner for caveat, Marie Russell Bury. Decedent lived with Mr. and Mrs. Jarboe until their deaths in 1880, and during that period they cared for him as if he were their natural son. Upon their death, decedent was raised by their natural son, Benedict Jarboe, until he was approximately 21 years old.
During his life, Thomas R. Jarboe was treated by the foster parents and their children as a member of the family. However, the decedent was never legally adopted by Matthew Jarboe and his wife under the law of Maryland, nor could he have been, since the statute allowing for legal adoption in Maryland was not enacted until 1892 -- long after the deaths of the Jarboes.
The District of Columbia Code, 19-307 (1961 ed.) provides that 'any party in interest' may file a caveat to a will. Such a 'party in interest' is one who would have been entitled to a share of the decedent's estate had the decedent died intestate. Kimberland v. Kimberland, 92 U.S.App.D.C. 145, 204 F.2d 38 (1953). The right to inherit is determined by the laws of the District of Columbia, In Re Estate of Gray, 168 F.Supp. 124, 126 (D.D.C. 1958), which recognize that in the event of the death intestate of a legally adopted person, his property will pass and be distributed in the same manner as if he had been the natural child of his adoptive parents. D.C.Code, § 222, Title 16, (1961 ed.).
However, the validly acquired status of an adopted child in Maryland will be recognized in the District of Columbia with respect to the inheritance of property located therein. In Re Estate of Gray, supra. Thus, the issue in this case is whether the decedent had acquired in Maryland the status of a legally adopted child to the extent that the heirs of his adoptive parents would be entitled to inherit from his estate had he died intestate. If not, then the petitioner has no standing to file a caveat to his will. Since the petitioner claims that her relationship is derived by virtue of the 'equitable adoption' of the decedent by her grandparents, this Court has examined Maryland law to determine whether the requisite status may be acquired there in this manner.
At common law there was no right of adoption, Hillers v. Taylor, 108 Md. 148, 155-56, 69 A. 715, 718 (1908); a mere executory agreement to adopt was not an adoption, and the child was not considered an heir of the parties agreeing to adopt it. 2 C.J.S. Adoption of Children § 27 (1936).
In Maryland, the rule is recognized that there can be no adoption establishing the legal relationship of parent and child except under and in accordance with a statute. Besche v. Murphy, 190 Md. 539, 59 A.2d 499, 502 (1948); Zimmerman v. Thomas, 152 Md. 263, 136 A. 637, 639 (1927). The general Maryland statute providing for such adoption was not passed until 1892. Acts 1892, Ch. 244 (presently Maryland Code Annotated, Article 16, Sections 78-84 (1939)). This statute, like the District statute, also contains a provision allowing a mutual right of inheritance to the intestate estate of the survivor of the adopted child and his adoptive parents.
The leading Maryland case treating 'equitable adoption' is Besche v. Murphy, supra. There, the decedent foster parent, Mrs. Ripple, died testate, her will containing a residuary clause which left property to such persons as would have taken under the Maryland law of intestate succession. In 1893, the decedent and her husband agreed to adopt the plaintiff provided complete and undisputed care, custody and control of the child, then eight years old, were relinquished to them. Thereafter, the plaintiff lived with her foster parents as their daughter. However, legal adoption of plaintiff in compliance with the statute was never carried out. Upon Mrs. Ripple's death, the plaintiff sought specific performance of the agreement of adoption,' by way of a decree that she was Mrs. Ripple's adopted child for the purpose of taking and inheriting under the residuary clause of her will.
After stating that there was no way by which a child could be legally adopted in Maryland other than by compliance with the adoption statute, the Court of Appeals of Maryland said:
'The court cannot decree that the appellant is the adopted child of Mrs. Ripple, and it is not asked to do so. What it is asked to do is to decree that the appellant should be so regarded in the distribution of Mrs. Ripple's estate, and should receive that estate which she would have done had the agreement to adopt been carried out.' 59 A.2d at 502. (Emphasis added).
In other words, the application of the doctrine of 'equitable adoption' does not change the status of the child to that of being legally adopted but is merely a recognition by courts of equity, based on the maxim that equity considers done that which ought to be done, that the child is entitled to receive upon the death of his foster parent or parents what he would have received had their contract to adopt been carried out during their lifetime.
In the New Jersey case of Burdick v. Grimshaw, 113 N.J.Eq. 591, 168 A. 186, 188 (1933), cited and quoted in Besche v. Murphy, the Court stated what is the ...