Redmon v. . Roberts

BeogdeN, J. Can an illegitimate child maintain an action against the estate of the deceased father, upon a contract made by the father with the mother, to the effect that the father would take the child into his own family and at his death give such child an equal share in his estate with his legitimate children ? - Certain aspects of the question have been considered by this Court in Thayer v. Thayer, 189 N. C., 502, 127 S. E., 553. It is clearly established in this State that a contract made by the father of an illegitimate child with the mother thereof for support and maintenance of such child, is not contrary to public policy, but is a valid and enforceable agreement supported by sufficient consideration, Hyatt v. McCoy, 195 N. C., 762, 143 S. E., 518. However, the defendants contend that the plaintiff cannot recover because the contract alleged and proven constituted either an agreement to adopt or to devise real property. Hence, if the contract sued on was merely an agreement to adopt, then no recovery lies for the reason *164 that adoption is tbe creature of statute and strict compliance therewith is essential to establish the relationship of parent and child. Truelove v. Parker, 191 N. C., 430, 132 S. E., 295. Moreover, if the cause of action be based upon an agreement to devise real property, then the contract is unenforceable by reason of the application of the statute of frauds, it being admitted that the contract between the parties was entirely oral. The complaint sets forth two theories as a basis of the action. It is alleged: “That shortly before the said J. F. Redmon married the defendant, Virginia Lee Redmon, he came to see plaintiff’s mother and assured her again that the said marriage in no way would interfere with the rights of this plaintiff, and that he would adopt this plaintiff as his own child and care for her and nourish her and educate her and leave to her the same share in the estate of said J. F. Redmon that any other child would have.” Again in paragraph 10 of the complaint, it is alleged “that on several occasions thereafter the said J. E. Redmon assured the plaintiff’s mother that he would leave to the plaintiff the same share in his estate that any other child of his might get, and that the plaintiff should share in his estate equally with all other children of said J. E. Redmon.” The prayer for relief is to the effect that plaintiff be “adjudged to be the adopted child of said J. E. Redmon, deceased,” and that “she have and recover ... a sum of money equivalent to the value of a child’s share in all of the estate ... of which the said J. E. Redmon died seized and possessed.” A liberal construction of the allegations of the complaint discloses that the relief sought was not based entirely upon the breach of a contract to adopt plaintiff, but also upon the breach of contract to give the plaintiff an equal share of the intestate’s property. Therefore, we deem it unnecessary to discuss the effect of an oral contract of adoption. This Court and the Courts generally have upheld and enforced oral contracts to devise or convey land in consideration of services rendered. Whetstine v. Wilson, 104 N. C., 385, 10 S. E., 471; Lipe v. Houck, 128 N. C., 115, 38 S. E., 297; Faircloth v. Kenlaw, 165 N. C., 228, 81 S. E., 299; McCurry v. Purgason, 170 N. C., 463, 87 S. E., 224; Deal v. Wilson, 178 N. C., 600, 101 S. E., 205; Brown v. Williams, 196 N. C., 247, 145 S. E., 233; Doty v. Doty, 2 L. R. A. (N. S.), 713; Broughton v. Broughton, 262 S. W., 1089; Bowling v. Bowling's Admr., 300 S. W., 876. The theory upon which the reason is based, is that the party breaching the contract has received the benefit thereof, and that it would be an act of bad faith to plead the statute of frauds as a bar to recovery. This principle was declared in Deal v. Wilson, supra, as follows: “We there said that where the defendant has promised, in con *165 sideration of services to be rendered, tbat be will transfer to tbe plaintiff certain property, wbicb be afterwards refuses to do, and, instead of fulfilling bis contract, sets up tbe statute of frauds as a bar to any recovery on tbe same, be acts in bad faith, and bis conduct having deceived tbe plaintiff, who, relying upon tbe assurance tbat tbe contract would faithfully be performed, bad been induced to part with bis money or to render services of value to tbe defendant, tbe latter may recover compensation for tbe loss be has sustained.” We can perceive no logical distinction, in principle, between rendering services to a decedent and foregoing tbe assertion of a legal right. In tbe case at bar, tbe mother of plaintiff bad á right to institute an action against tbe deceased for damages, and she was entitled to tbe custody of her minor daughter. She surrendered both of these rights to tbe intestate in consideration of tbe agreement to give the plaintiff an equal share of bis property. In contemplation of tbe law, this was sufficient consideration to support tbe agreement and tbe consideration was received by tbe defendant. Plaintiff’s mother instituted no action and did not attempt to withhold 'the custody of her minor daughter. Hence, her part of tbe agreement was fully and completely performed, and we are therefore of tbe opinion tbat tbe plaintiff is entitled to recover. Tbe measure of damages is discussed in tbe brief of defendants, but tbe record discloses tbat there was no exception to tbe charge of tbe trial judge upon tbe measure of damages, and hence tbat question is not before us. However, in tbe case of Bowling v. Bowling, supra, tbe facts are almost identical with those in tbe case at bar. Tbe Kentucky Court says: “Tbe general rule is tbat an oral agreement to devise real estate to another is within tbe statute of frauds and cannot be enforced, but where tbe benefit to intestate cannot be measured in money, there is no way to determine tbe amount of recovery except by tbe pecuniary standard fixed by tbe parties to tbe contract. Tbe measure of damages for tbe breach of contract to devise is tbe value of tbe property agreed to be devised.” We bold tbat tbe plaintiff is entitled to judgment upon tbe verdict, and tbat tbe trial judge committed error in setting aside tbe verdict ds a matter of law. Error.