Hatchell v. Norton

The opinion of the Court was delivered by Mr. Justice Carter. This action, according to the agreed statement of counsel appearing in the transcript of record, was commenced by the service of the summons and complaint upon the defendants on December 30, 1930. The plaintiffs prayed that the Court do determine what interest, if any, the defendant Manly Norton, who under a contract between his mother, Leather Norton, and A. H. Turner, on March 6, 1924, was given unto the care, custody, and control of A. H. Turner, upon *276 conditions set forth in the contract, would have in a tract of land, described in the complaint, which tract of land the plaintiffs herein have contracted to sell to the defendant M. J. Thomas. The tract has been conveyed to M. J. Thomas, partly for cash and the balance being represented by a mortgage which provides that this action would be commenced to protect M. J. Thomas from a claim upon the part of Manly Norton, infant defendant. A. IT. Turner on the 11th day of April, 1929, died intestate, leaving the plaintiffs, Beulah Hatched, Daisy McLaughlin, Maggie Taylor, Minnie Hutchison, Essie McLaughlin, Zellie Ham, and Isabell Hutchison, and B. Lee Turner, children, and his widow, Mrs. Alice Turner, now Mrs. Alice Conner. Mrs. Alice Conner and B. Lee Turner deeded to^ the plaintiffs herein whatever interest they might have in the tract of land. At the time of the commencement of this action, a notice was served upon the infant defendant, Manly Norton, for the appointment of a guardian ad litem. The late Hon. P. H. Arrowsmith was employed to look after the interest of the infant, Manly Norton, and he served an answer, but did not have a guardian ad litem appointed. After the death of Hon. P. IT. Arrowsmith, plaintiffs’ attorneys served notice upon the infant defendant, on August 17, 1931, to employ other counsel, and that the plaintiffs’ attorneys would move for the appointment of a suitable person as guardian ad litem for the infant defendant. Manly Norton. On September 1, 1931, Judge S. W. G. Shipp signed an order appointing J. Graham Rose as guardian ad litem. J. Graham Rose, guardian ad litem, on December 31, 1931, served an answer to the plaintiffs’ complaint,‘denying such allegations contained in the complaint as set forth that the defendant Manly Norton had no interest in the tract of land. The defendant M. J. Thomas, through his attorney, answered the complaint, praying that the prayer of the complaint be granted. *277 On January 5, 1932, Hon. S. W. G. Shipp, Judge of the Twelfth judicial Circuit, referred to the master of Florence County the cause to hear and determine all issues of law and fact. The master in his report recommended that the defendant Manly Norton be decreed to inherit as a child from his adopted father, A. H. Turner. This report was duly excepted to on the 8th day of January, 1932; notice of appeal and exceptions being served upon that date. After hearing arguments, Judge S. W. G. Shipp, on January 12, 1932, by his decree, affirmed the master’s report. From the said decree of his Honor, Judge Shipp, affirming the master’s report, the plaintiffs duly appealed to this Court. For the purpose of a clear understanding of the issues involved in the case and the conclusion reached by the lower Court, we quote herewith the contract in question, which reads as follows: “Leather Norton to A. H. Turner— Adoption oe Chird “State of South Carolina, County of Florence. “This agreement made the 6th day of March, 1924, by and between Mrs. Leather Norton and A. H. Turner, “Witnesseth: “The said Mrs. Leather Norton does hereby solemnly agree to and does deliver her child Manly Norton, age 7 years, the 27th day of September, 1923, into the custody, care and control of the said A. H. Turner, who is to have and hold the said child as his own. And the said Leather Norton does hereby release any and all claims she has on the said child, and agree that she will never in any way interfere with said child. And the said A. H. Turner does hereby solemnly agree to take the said child into his care and custody, to control and at all times to treat him as his own child. Fie adopts the child with the full and free consent of his mother, the said Mrs. Leather Norton, whose name *278 is hereto signed. He further agrees to give the said child careful attention, to provide him with all necessary food and clothing and shelter, to give him all the comforts that his means will allow, and to educate him as he is financially able to do. In short, the said A: H. Turner is to give the said child the same attention, care, educational and religious training as if he was his own flesh and blood. “Witness our hands and seals this 6th day of March, A. D. 1924. “[Signed] Heather Norton (X. S.) “A. H. Turner (E. S.) “In the presence of: “J. V. McErvEEn “M. A. McIntyre/’’ We have in this State a statutory provision governing the adoption of children, which appears in Volume 3, 1932 Code, as Section 8679, and, according to our view, the mode of adoption of a child must be in compliance with the provisions of this section in order for such child to be entitled to inherit as the child or children of the person adopting such child. The contract involved in this case, quoted above, is not a compliance with the provisions of this section of the Code. For that reason we think that the lower Court was in error in holding and decreeing the infant defendant, Manly Norton; to be entitled to inherit as a child from his adopted father, A. H. Turner. The question of compensation for service rendered by the said infant is not before this Court. The appeal is therefore sustained, and it is the judgment of this Court that the infant defendant, Manly Norton, is not entitled to' inherit as a child from his adopted father, A. H. Turner. Mr. Chiee Justice Brease concurs. Mr. Justice Bonham concurs in result. Mr. Justice Stabrer dissents.