Beaver v. Crump

76 Miss. 34

• Court: Mississippi Supreme Court
• Decided: March 15, 1898
• Status: Published

Opinion

Woods, C. J.,

delivered the opinion of the court.

The appellants, as the legal heirs of one Seth P. Pool, exhibited their bill in the chancery court of Clay county, on the 27th day of April, 1897, in conformity to the provisions of “An act to provide a record of the descent of property, real and personal, in cases where persons die wholly or partially intestate” (acts of 1896, pp. 102, 103), seeking thereby to have themselves declared the heirs at law of said decedent, and to be placed in possession of his estate, and seeking to have canceled as a cloud upon their title the claim of Mrs. Crump to the estate, as decedent’s sole heir under certain adoptive proceedings, which are fully set out in the bill and its exhibits.

The appellees answered fully, asserting Mrs. Crump’s title to the estate under the judgment of adoption in the adoptive proceedings, and, making their answer a cross bill, pray that, 1 ‘ if the title to the estate did not descend to her as the adopted daughter of the decedent, by virtue of the adoptive proceedings and judgment therein, then that the court will decree specific performance upon the promises, proposals and agreements of the decedent to devise and bequeath to Mrs. Crump all the balance of his property which he did not devise or bequeath to others, as decedent bound himself to do in.his petition for adoption, and as the court bound him by its judgment in that proceeding. The cross bill also prays that all right, title, claim and interest in and to the estate of which said decedent died seized and possessed be divested out of the complainants as a cloud upon Mrs. Crump’s title.

To this cross bill appellants demurred, and assigned twenty-seven causes of demurrer. We need not set out these grounds specifically. Generally, they aver that there is no equity on the face of the cross bill; that the contract, of which is sought specific performance by the cross bill, is void under the statute of frauds; that the contract is without consideration, and that it is void for uncertainty.

The following statement of the facts disclosed by the record before us will show the grounds of contention:

In March, 1887, Seth P. Pool, under § 1496, code of 1880, presented to the circuit court of Clay county a petition for the adoption of Alice Hulsey, a minor (now Mrs. Crump, one of the appellees herein), then nearly eighteen years of age, and for the change of her name to Alice Hulsey Pool, averring that said minor was his grand niece and that she had been raised by him and his wife from the time when she was four months old. In the petition, Mr. Pool states that he proposes to devise to said minor his Sykes plantation, containing about seven hundred and ninety-seven acres of land, and worth about sixteen thousand dollars, for her lifetime, and, after her death, to the heirs of her body, and, in default thereof, to her next nearest of kin under the rule of descent and distribution in this state, and without power to incumber or convey the same, or the rents and profits thereof, for any debts of her husband, if she should marry. ’ The petitioner also states in his petition that he proposes to devise or bequeath to the said minor all the balance of his property that he does not specifically devise or bequeath to others.

On the hearing of this petition, judgment was entered by ■the circuit court, which is substantially in these words: “It appearing to the satisfaction of the court that all the alleg itions of said petition are true, and that all the parties thereto consent and desire that said petition be granted; that Seth P. Pool is to devise and bequeath to said Alice Hulsey his plantation in Clay county, Mississippi, known as his Sykes plantation, described in said petition, and that it is to the best interest of said minor to grant said petition, it is therefore considered, and so ordered by the court, that the said petition be allowed, said adoption granted, and the name of said Alice Hulsey is hereby changed to Alice Hulsey Pool, and that she be entitled to all the benefits conferred and imposed by §.1496, code of 1880, in that behalf made and approved.”

A few months thereafter Alice Hulsey Pool was married to one J. L. Crump, the other appellee herein, and in February, 1888, the said Seth P. Pool executed a conveyance to Mrs. Crump to the said Sykes plantation, and, in July, 1895, Mr. Pool executed to Mrs. Crump a conveyance to some other real estate. In December, 1896, Mr. Pool died intestate, and a few days after his death J. L. Crump took out letters of administration on Pool’s estate.

The questions arising are clearly and concisely stated in the able brief of appellee’s counsel, viz.: (1) Does-Mrs. Crump take Mr. Pool’s estate under the petition and judgment of adoption? (2) If not, can she have relief against appellants in her present suit, which is in the nature of one for specific performance .of the agreement and proposals of Mr. Pool in his petition for adoption and the judgment of the court thereon; or can she have relief against them as trustees of the legal title under the bill as framed ?

It will be well now to advert to and briefly consider the law of the State under which the adoption proceedings in the present case were had.

“The circuit courts shall have power, upon the petition of any person within their respective jurisdictions, to alter the name of ' such person, to make legitimate any of his offspring not born in wedlock, and to decree said offspring to be the heir or joint heir of the petitioner; and any person who may desire to adopt any infant, and to change the name of such infant, may present his petition for that purpose to the circuit court of the county in which he resides, or in which the infant may reside, and' shall state in said petition the name and age of such infant, and the names of the parents or guardians, and their residence, if they be living, the name proposed to be given to such infant, and that he has obtained the consent of the parents, if living, or of the guardians, if any there be, and of the infant if over the age of fourteen years, to the adoption and change of name as prayed for; and shall also state in said petition what gifts, grants, bequests, or benefits he proposes to make or confer upon such infant, and the court shall hear the proofs, and if satisfied that the allegations of the petition are true, and that the interest and welfare of such infant will be promoted by such adoption, may decree that such child be adopted by the petitioner, and that the name be changed to the name proposed, and that said infant shall thereafter be called by that name; and that such infant so adopted shall be entitled to all the benefits proposed by the petitioner to be granted and conferred; and thereafter the said petitioner shall have and exercise over said infant all such powelr and control as parents have over their own children. . .- . If the prayer of the petitioner be granted, in whole or in part, the proceedings and decree shall be recorded in the final record of judgments.”

The statute is wholly unlike those of the most of the states of the union, and is similar in some inspects to those of only two states, so far as we have been able to ascertain. Besort to adjudications of foreign courts on dissimilar statutes will, therefore, afford us little or no assistance in interpreting our own statute. Fortunately, the statute is unambiguous and simple, and is susceptible of easy construction. In so far as it is an adoption statute, it covers two classes of cases. (1) On petition of any person, the court has the power conferred to make legitimate any of the offspring of the petitioner not born in wedlock, and, furthermore and specifically, to decree said offspring thus legitimated to be the heir, or joint heir, of the petitioner. Heirship for the children of one’s own blood born out of wedlock, after their legitimation, is the plain purpose of the law in dealing with such children. (2) On petition of any person who may desire to adopt any infant, and to change its name, the petitioner therein stating what grants, gifts, bequests, or benefits he proposes to make or confer on the infant, the court may decree the adoption of the infant by the petitioner, and that the name be changed to that proposed, and that all the benefits proposed by the petitioner be granted and conferred; or the prayer of the petitioner may be granted in whole or in part. Bat in this class there is no heirship embraced in the terms of the statute, unless heirship be one of the benefits proposed to be conferred on the infant by the petitioner. The adoption in this class carries with it only the specific gifts, grants, bequests, and benefits proposed in the petition. The petitioner may propose much or little, and the adoption decree can only secure to the infant the particular benefits proposed. This is not adoption in the general and unrestricted sense of that term. And the court may even grant the prayer of the petitioner in part only, as may appear to be for the infant’s best interests.

As to appellant’s contention that there is no sufficient consideration to uphold the proposals and agreements of the contract entered into by the petitioner in the adoption proceedings, it need only be said that the judgment of the court on the petition and the proceedings had in connection therewith, conclusively determined that question, and it is not now open to revision in this suit. That question was committed to the circuit court, and its judgment settled it.

Reference to any of the other questions than that raised by the fourteenth and twenty-sixth- grounds of demurrer will be unnecessary, in view of the opinion which we entertain as to the uncertainty in the description of the property referred to in the petition for adoption and the judgment of the court thereon. In the judgment itself no property whatever is named except the Sykes plantation. That property the petitioner conveyed to Mrs. Crump many years before his death, and with it we need not concern ourselves.

Now, conceding that the judgment of the court, which decreed that the adopted minor £ £ be entitled to all the benefits and subject to all the duties and liabilities conferred and imposed by §1196 of the code of' 1880,” was intended to embrace and did embrace the benefits proposed in the petition for adoption, it is clear that the minor did not become invested with title to the property now in suit in any of the modes of acquiring title known to the law. The estate of Mr. Pool at his death descended to his heirs; but, if the argument of appellees’ counsel be sound, it so descended clothed with a trust in appellees’ favor, created by the adoption proceedings, and the execution of this trust Mrs. Crump seeks in this action in a court of equity, on the ground of the court’s jurisdiction, to compel specific performance. \

It is important here to note that the proposal of Mr. Pool, in the petition for adoption, to bequeath and devise an unascertained and indefinite portion of his estate—viz., what he did not devise or bequeath to others—was not the consideration which moved the minor, or her father and guardian, to assent to the adoption; for, without doing any violence to the terms of the petition, or those of the court’s judgment thereon, Mr. Pool retained the absolute right of disposing of his entire estate, except the Sykes plantation, during his lifetime by gift or grant to others, and by devise at his death to others than Mrs. Crump. Mrs. Crump had only an expectation of becoming the object, in the future, of Mr. Pool’s bounty, and this indefinite and uncertain proposal of Mr. Pool brought him under no legal obligation capable of specific enforcement. The agreement of the petitioner was definite and certain as to the Sykes plantation, but as to all other property it was indefinite and uncertain. Everything, except the Sykes plantation, was left for disposition at the petitioner’s pleasure. The most favorable view which can be taken for appellant conducts to the conclusion that the petitioner, by devise, would designate particularly what property, other than the Sykes plantation, should pass to Mrs. Crump at his death. Did she acquire a vested right to any particular piece of property under the proposal to devise whatever the petitioner did not devise to others ? Manifestly not, for the petitioner might part with his entire estate at his pleasure during his lifetime, or he might devise all to others. Whatever the minor might acquire in the future was left wholly to Mr. Pool’s discretion and designation, to be thereafter exercised and made. The minor only had the expectation of receiving, as the object of Mr. Pool’s generosity, some indefinite and uncertain portion-of Mr. Pool’s estate. It is elementary learning that agreements must be definite and certain in order to their enforcement in equity under proceedings akin to those for specific performance.

We borrow an illustration from the brief of appellants’ counsel, which re-enforces the argument: Suppose the proposal of Mr. Pool had been, within twelve months, to execute and deliver a will by which he would devise and bequeath to Mrs. Crump what he did not devise and bequeath to others. Could Mrs. Crump, after the lapse of the twelve months, secure specific performance of the proposal by suit for that purpose? If the court should undertake to decree specific performance, what would be the result ? The promisor would be required to make a will and devise and bequeath to the promisee, what ? Just what he might choose to do—nothing, if he so wished. ‘ ‘ If Mr. Pool could, in such case, have been required to do nothing,” the counsel pertinently ask, “on what principle can the court decree Pool’s heirs to do more than Pool himself could have been required to do ? ”

To our mind it seems clear that what Mrs. Crump was to have devised and bequeathed was wholly uncertain and indefinite, and that she only had an expectation of being made the object of Mr. Poole’s future and further bounty, and that specific performance cannot be decreed.

Reversed and remanded.