Besche v. Murphy

Marbury, C. J., delivered the opinion of the Court. Appellant filed her bill of complaint in the Circuit Court No. 2 of Baltimore City on July 16, 1947. She alleged the death of Annie M. Ripple on October 19, 1946, testate, and the appointment of the defendant, appellee here, as executor. She also alleged that by the will of Annie M. Ripple, all the rest and residue of her estate was given to “those persons who under the laws of the State of Maryland would take in case of intestacy.” It further appears from the bill that the testatrix was 88 years old at the time of her death, left no husband or issue surviving her, and no children were born to her throughout her life.

She survived three husbands, the first of whom was William F. Herrman. The fifth paragraph of the bill of complaint, containing the statement of the facts relied upon by appellant, is here inserted. “Fifth: That your Oratrix was born in Baltimore, Maryland, on August 7, 1885, as Anna Geisenkotter. When she was between two and three years of age, her mother died and about ten months thereafter her father died. She was then cared for by an elderly aunt until 1893.

At that time Mrs. Annie M. Herrman (the decedent) and her husband, William F. Herrman, offered to adopt your Oratrix provided complete and undisputed care, custody and control of the child, then eight (8) years of age, were relinquished to them. After the said Herrmans talked to the elderly aunt they turned to your Oratrix and said: ‘We are adopting you, we will be good ⁵⁴² parents to you’. She was then taken by the Herrmans to their home and thereafter she lived with Mr. and Mrs. Herrman as their daughter. Both her given and surnames were promptly changed by Mr. and Mrs. Herr-man from ‘Anna Geisenkotter’ to ‘Stella Herrman’ by which name she was thereafter exclusively known in all aspects of her life; in school, in church and in the community at large.

Among her friends, acquaintances and in the neighborhood she was known as the daughter of the Herrmans. In all respects and circumstances their relationship was that of natural parents and natural daughter during the lifetime of both William F. Herrman and Annie M. Herrman (who by marriage, later became known as Annie M. Ripple). When your Oratrix started to work she delivered all her earnings to her adoptive mother, Mrs. Annie M. Herrman. “Your Oratrix was married on April 17, 1907 to Anthony H. Besche. Invitations to the wedding were sent by Mrs. Annie Herrman in which she called your Oratrix ‘her daughter’, which invitations read, in part, ‘Mrs. Annie Herrman requests your presence at the marriage of her daughter, Stella, to Mr. Anthony H. Besche,’ a photostatic copy of said invitation is herewith filed as part hereof, marked ‘Plaintiff’s Exhibit B’. “As late as April 26, 1946, Mrs. Annie M. Ripple (the decedent) had sent a postal card to your Oratrix, signed ‘Mother’, and on May 1, 1946, she sent another postcard to your Oratrix, also signed ‘Mother’, photostatic copies of which postal cards are herewith filed as part hereof, marked ‘Plaintiff’s Exhibit C’ and ‘Plaintiff’s Exhibit D’, respectively.” The appellant contends that under these circumstances, although she was never adopted as provided by the statute, she has the same rights of inheritance and distribution in the Ripple estate as if she had been formally adopted, and by virtue of that status she is the only one entitled to receive the residuary estate of the testatrix.

She prays, therefore, that the agreement of adoption on the part of Mrs. Ripple be specifically enforced by a ⁵⁴³ decree that she is her adopted child, for the purpose of taking and inheriting under Item Nine of her last will and testament, that the executor be directed to distribute the net residuary estate of his decedent to her, and for further relief. Filed with the bill is a copy of the will of Mrs. Ripple. Item One of this will reads as follows: “I give, devise and bequeath unto Stella Besche whom I raised since childhood, the sum of Five Hundred Dollars ($500.00) to be her property absolutely, free and clear of all encumbrances.” Then after several pecuniary bequests to churches and charities, she gave $300 to a legatee whose connection with her is not disclosed, she gave $1,500 to be equally divided between seven grandchildren of her last husband, she gave pecuniary bequests to three of the children of her deceased brother, and another pecuniary bequest to her godchild, and then follows Item Nine which disposes of her residuary estate in the words we have already quoted. The defendant demurred to the bill.

The court sustained the demurrer, the complainant waived the right to amend, and the bill was dismissed. From this action by the Chancellor, the complainant appeals. We may readily dispose of the question of laches which is raised by the appellee and which received some attention in the opinion of the Chancellor. The alleged agreement of adoption was made in 1893 and Mrs. Ripple died in 1946.

Thus fifty-three years elapsed during which, it is argued, the appellant could have taken some action to compel her adoption, and she is now too late with her claim. However, it seems clear in the absence of fraud (which is not suggested), that she could not have filed a bill for specific performance against Mrs. Ripple during the latter’s lifetime. There would have been no mutuality of remedy to enforce such a contract, because personal services on the part of the child would be involved, that being part of the obligation of a daughter. Such a contract could not have been enforced against the appellant, and consequently the appellant could not have enforced it against Mrs. Ripple.

Reed v. ⁵⁴⁴ Reed, 165 Md. 604 , 169 A. 798 ; Scott v. White, 190 Md. 389 , 58 A. 2d 490 . There are other objections to the right of a party to compel another to adopt her. The statute involves action by the court, looking always to the best interest of the child. Such action could not have been compelled in a suit for specific performance.

In this state, unlike some other jurisdictions, adoption is not a contract alone between the. parties. It requires judicial determination of the advisability of permitting such action, and if a court decrees otherwise, it is not within the power of one person to adopt another. The relationship of parent and child is of the most intimate, personal nature. Equity will not ordinarily enforce a contract to create such relationship.

Erlanger v. Erlanger, Sup., 102 Misc. 236 , 168 N. Y. S. 928, affirmed without opinion, 185 App. Div. 888 , 171 N. Y. S. 1084. See, however, Van Dyne v. Vreeland, 1857, 11 N. J. Eq. 370. Without further discussion of this phase of the matter, it is our conclusion that the appellant is not guilty of laches in not bringing an action during the life-time of Mrs. Ripple. She has not delayed since the death of the latter.

In this case there has been no legal adoption. The first adoption statute passed in this State was Chapter 244 of the Acts of 1892, which was before the alleged oral agreement to adopt appellant. No attempt was made to comply with that statute or its amendments, and there was then, and is now, no other method by which a child can be adopted in this State. Spencer v. Franks, 173 Md. 73 , 195 A. 306 , 114 A. L. R. 263.

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. Another phase of the case, urged strongly by the appellee, is the insufficiency of the allegations of the contract. It is contended that there is no statement that ⁵⁴⁵ the elderly aunt had any authority to make an agreement with the Herrmans for the adoption of the child, and that the allegation is not that she did make such an agreement, but that the Herrmans offered to make one.

We think, however, the agreement by the aunt might be inferred from the words used and from the actions by the parties. The allegations show the aunt was in loco parentis, and that is sufficient if proved. It is further suggested that the appellant cannot testify to any statements made by Mrs. Ripple under the evidence act, and that in this connection the will of Mrs. Ripple indicates that she did not regard the appellant as her daughter, because she designated her otherwise in the gift of $500, and that these facts, which appear on the face of the record, negative or diminish the allegation that any clear and definite contract for adoption was made. We are, however, not passing upon proof.

We are considering whether a bill of complaint is sufficient in its allegations. We are asked to place the appellant in the position in which it is claimed she would have been, had Mrs. Ripple carried out the alleged agreement. Whether or not such an agreement was made by one who had a right to make it, and how it can be proved, are questions of evidence with which we are not concerned on this record. The appellant relies strongly upon a statement made by this Court, speaking through Judge Stockbridge, in the case of Clayton v. Supreme Conclave, Improved Order of Heptasophs, 130 Md. 31 , at pages 36 and 37, 99 A. 949, 951 .

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 ⁵⁴⁶ estopped from raising the question that the children were not entitled to the proceeds.

In the course of the discussion the court used the words relied on by appellant, which are “the authorities very generally establish the proposition, that a parol obligation by a person to adopt the child of another as his own, accompanied by the virtual though not statutory, adoption, and acted upon by both parties during the obligor’s life, may be enforced upon the death of the obligor, who dies without disposing of the property by his will;” (emphasis supplied). This dictum seems to be supported by the weight of authority in this country to the extent that the courts decree that a child so treated will be entitled to a right of inheritance from the estate of the foster parent such as a natural child would enjoy, where the child in question has faithfully and fully performed the duties of a natural child to the foster parents. A great many of these cases are collected in notes 27 A. L. R. 1325 et seq., 27 A. L. R. 1365 et seq., and 142 A. L. R. 84 et seq. The earliest case seems to be Van Dyne v. Vreeland, 11 N. J. Eq. 370, decided in 1857.

This was a bill filed in the life time of an alleged adoptive father to set aside a conveyance he had made to the son-in-law of his second wife. It alleges that the complainant at the age of eight weeks was turned over by its natural father to a couple who had it baptized in their name. This child was always called by its new name, called its foster parents “father” and “mother”, was raised by them, and performed all the obligations of a natural child. His natural father left his property to his other children, supposing that the foster father would take care of the one turned over to him.

The foster father did make several wills, leaving his property to the child, but after his first wife died, he married again, then apparently changed his mind, made a will leaving none of his property to the child, and