Corison v. Williams

WORKS, J.

From the time of her birth until in her eighth year plaintiff bore the name of Nina 0. Hunt. At the time when she reached the age mentioned she was adopted by Jerome Troy and Grace A. Troy, husband and wife, and acquired the name of Gladys Troy. After arriving at maturity she became, and she is now, the wife of John D. Corison. This action was instituted by plaintiff to specifically enforce an agreement which she alleges was made in her favor by Mr. and Mrs. Troy at the time of her adoption. Both of the Troys were deceased when the action was commenced. Lydia R. Williams was made a defendant personally because Mrs. Troy in her lifetime had conveyed to the former certain of her property, one of the purposes of the action being to set the conveyance aside. Mrs. Troy also made a will in favor of Mrs. Williams. Defendants had judgment and plaintiff appeals.

The formal adoption of appellant was preceded by certain conversations between the Troys, on the one hand, and her father, David E. Hunt, and her grandparents, Mr. and Mrs. Fleming, on the other, the mother of appellant, who was a daughter of the Flemings, having died some time before the negotiations looking toward the adoption had commenced. It is alleged in the complaint that these negotiations culminated in an oral agreement that, if they were permitted to adopt appellant through Hunt’s consent to the adoption, the Troys “would leave to the plaintiff at their deaths all of the property which they then had, or which they might accumulate, or of which they might become pos.sessed.” The trial court found that this averment was untrue and appellant contends that the finding is without support in the evidence.

At the trial the evidence as to the oral agreement went in over respondents’ objection, their contention being that the formal adoption papers constituted the only agreement between Hunt and the Troys and that the oral negotiations between them could not be received, as they tended to vary or add to the terms of the written agreement. That ground is now insisted upon in support of the contention that the disputed finding of the trial court should be upheld. If this position is well taken the evidence of

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the oral agreement should have been excluded. Upon that theory the finding would be proper, as the record would in effect show no evidence to support the alleged oral agreement. The adoption of appellant occurred in the then territory of New Mexico, but no claim is made that the law of that jurisdiction concerning adoptions was different from the law of California on the same subject. Counsel on both sides therefore correctly argue the cause upon the presumption that the law of the territory was identical with the law of this state as it stood in 1903, when the adoption was consummated. At that time section 226 of our Civil Code, after directing that adoption should be made pursuant to petition addressed to the superior court, further provided: “The person adopting a child, and the child adopted, and the other persons, if within or residents of this state, whose consent is necessary, must appear before the judge of the superior court of the county where the person adopting resides, and the necessary consent must thereupon be signed, and an agreement be executed by the person adopting, to the effect that the child shall be adopted, and treated in all respects as his own lawful child should be treated.” The petition for the adoption of appellant alleged, considering only so much of it as may by any possibility bear upon the point now under consideration, “That said declarants [the Troys] desire to adopt said child for the purpose of giving her a home with them, of raising her as if she were their own child, and mating her their legitimate heir, and giving her their name.” The consent of Hunt to the adoption is merely to the effect that “he hereby consents to the adoption of his said child” by the Troys “as set out in their declaration and application herein,” and the order of the court sanctioning the adoption casts no particular light on the subject. We cannot indorse the view that these adoption papers constitute such a written agreement between Hunt and the Troys as to call for the exclusion from evidence of an oral contract connected with the subject. It will be noted that section 226, as it stood in 1903—and, in fact, it has not been changed since in that respect—required only as to the matter of contract that the party adopting should execute an agreement “to the effect that the child shall be adopted, and treated in all respects as his own child should be treated.” We do not mean to say that promises taking