Brookins v. Citizens Southern Nat. Bank , 205 Ga. 128 ( 1949 )

Under the terms of a will, devising property to the "children of the children" of the brothers of the testator, with nothing in the will to indicate that adopted children should be included within the term "children," an adopted child of the child of a brother of the testator did not take as a beneficiary, irrespective of whether the adoption occurred before or after the will was executed, or before or after the death of the testator.

No. 16541. MARCH 15, 1949. REHEARING DENIED MARCH 28, 1949. Citizens and Southern National Bank, Mills B. Lane Jr., and Robert Train, as executors and trustees under the will of Edward T. Comer, filed a petition in Chatham Superior Court for the construction of the will of Edward T. Comer and for direction.

Item six of the will here to be construed reads as follows: "After the death of my dear wife and the payment of the legacies, provided for in Items Second, Fourth and Fifth of this will, I will and direct that the balance of my estate be distributed in equal shares, per stripes and not per capita, as follows: One share to the children of the children of my brother, the late H. M. Comer, another share to the children of the children of my brother, G. L. Comer; another share to the children of the children of my brother, B. B. Comer; and another share to the children of the children of my brother, J. F. Comer. Those to whom the four shares just provided for shall be distributed shall be determined by the date of the death of my wife, and not as of the date of my death. The distribution of each of the four shares shall be per stirpes, and not per capita. The children of a deceased grandniece or grandnephew of mine shall represent the parent and take per stirpes, and not per capita. In the distribution of the share amongst the grandchildren of G. L. Comer, it is my will that in the event at the time of the distribution his son, G. L. Comer Jr., or his daughter, Mary Comer, have no children that said G. L. Comer Jr. and Mary Comer shall receive such share as would otherwise go to their children."

Marion Sunshine Comer, who is now Mrs. Wayne Garfield Brookins, filed her response to the petition, alleging that she was entitled as the adopted daughter of Hugh M. Comer to take under the sixth item of the will of E. T. Comer. She alleged that in 1924, during the lifetime of E. T. Comer, and prior to the execution of the will, Hugh M. Comer and his wife, Elizabeth W. Comer, made an agreement with her natural father that they would take her into their home and would adopt her as their own child, capable of inheriting their estates; that they visited in the home of E. T. Comer, and advised him of their agreement concerning the adoption, of which he heartily approved, stating that he was sorry he had not adopted a child of his own; that in the late summer of 1926 they did take her into their home, assuming her support and placing her in school; that on October 9, 1928, Mrs. Elizabeth W. Comer, as her aunt and next friend, instituted a proceeding in Chatham Superior Court to enforce a verbal agreement made by Hugh M. Comer for her adoption; that Hugh M. Comer filed an answer, admitting the allegations of the petition, and a judgment was entered on April 13, 1929, decreeing specific performance of the agreement and providing that she should be the adopted child of, and entitled to inherit from, Hugh M. Comer, and should be the adopted child of Mrs. Elizabeth W. Comer and entitled to inherit from her.

The response further alleged that for many months prior to the death of E. T. Comer, pursuant to the agreement which was made in 1924, the respondent was the adopted daughter of the said Hugh M. Comer by virtual adoption, and that, after the death of E. T. Comer in 1929, her status as their adopted daughter was judicially determined and decreed in the Superior Court of Chatham County; that at the time of the execution of the will of E. T. Comer, the said Hugh M. Comer was 58 years old and he and his wife had been married approximately 25 years; that no child or children had been born to them, and none was thereafter born to them; that this also was known to E. T. Comer up to the time of his death; that on one or more occasions the respondent was a visitor with her foster parents in the home of E. T. Comer; that, under the attending circumstances as alleged, and substantially set forth above, it was the intent of E. T. Comer, as gathered from his will and codicil, and from said attending circumstances, that the benefits of the sixth item of the will should extend to and be enjoyed by the respondent.

It appeared that Edwart T. Comer executed the will in question on September 25, 1925, and a codicil dated March 22, 1926. He died March 31, 1927.

To the response Mary L. Morrison and others filed their general demurrer. The trial court sustained the general demurrer to the response, and decreed that as a matter of law on the pleadings the respondent did not take under Item Six of the will. The exception is to this judgment. The briefs filed in this case devote considerable argument to the question of whether or not there was a statutory or virtual adoption. We pass over those preliminary questions and go directly to the real question presented, whether or not the plaintiff in error can take under Item Six of the will as an adopted child under the facts appearing from the pleadings.

Many outside authorities are cited in the briefs of opposing counsel. We do not deem it necessary to discuss them in detail here, but deem it sufficient to say that the authorities in other jurisdictions are in conflict on the question here to be decided.

The paramount question here is this: did the testator intend to include the plaintiff in error as a beneficiary under Item Six of his will? The only Georgia case cited, and the only one we have been able to find shedding much light upon the question now under consideration is Comer v. Comer, 195 Ga. 79 (23 S.E.2d 420, 144 A.L.R. 664). There the adoption was fourteen years after the death of the testator, and it was held that the testator could not, for that reason, have had the adopted child in mind as a beneficiary when the will was executed. It is true that this court there stated that no ruling was made on the question in a case where the adoption was "before execution of the will or death of the testator." That statement was proper, because that question was not then before the court.

It must be borne in mind that the plaintiff in error is not claiming to inherit as an heir of her adoptive parents, but is claiming to take under the provisions of a will. In Comer v.Comer, supra, this court said: "At the time the testator made his will, and at the time of his death, there was a law in this State providing for the adoption of children, but according to this law any child that might be adopted by one of his children would stand to him as if no such adoption had taken place. . . Thus, no act of the testator's daughter in adopting a child, whether before or after his death, could have created any relationship between such child and the testator, so as to make that child his own grandchild, upon whom he might naturally desire to bestow a bounty." In the same opinion this court quoted with approval from 1 Am. Jur. 665, § 64, as follows: "In the matter of construing the rights of an adopted child to take under a will, it should be born in mind that it is not a question of the right of an adopted child to inherit, but simply a question of the testator's intention with respect to those who are to share in his estate. The disposition of the courts is to confine and limit the word `children' in its application, when it occurs in a will, to its natural import, excluding adopted children, except where the testator has clearly shown by other words that he intended to use the term in a more extensive sense." See alsoEveritt v. LaSpeyre, 195 Ga. 377 (24 S.E.2d 381).

We think that the quotations from the Comer case, supra, are directly in point and applicable to the facts in this case. At the time the will in question was executed, the law in this State, after providing the procedure for adoption, declared that the decree of the court in the proceedings "shall declare said child to be the adopted child of such person and capable of inheriting his estate, and also what shall be the name of such child; thenceforward the relation between such person and the adopted child shall be, as to their legal rights and liabilities, the relation of parent and child, except that the adopted father shall never inherit from the child. To all other persons the adopted child shall stand as if no such act of adoption had been taken." Code (1910), § 3016, (1933) § 74-404. We are confronted, therefore, with the proposition that, at the time of the adoption in this case, whether before or after the will was executed, and whether before or after the death of the testator, the adopted child as to the testator stood "as if no such act of adoption had been taken." This status as between the parties is the result of a plain provision of our statutory law. It follows that, in order to hold in this case that the adopted child takes under Item Six of the will, the court must say something which the testator himself did not see fit to say. This the courts are not, of course, authorized to do.

From what has been said above, it follows that there was no error in the judgment complained of.

Judgment affirmed. All the Justices concur.