Snyder v. Shuttleworth

Sayre, J. There is presented for determination the question whether a written contract, entered into by the parent of an infant child with strangers, by the terms of which the latter agreed to adopt — 141 — such child, perform the duties and obligations of a parent to such child, and further agreed that such child should inherit from each all property which she would inherit if she were their own child, will be specifically enforced when fully performed on the part of such child. This question is discussed, but left undecided, in Shahan, Exr., et al. v. Swan, 48 Ohio St., 25, 31, 32. The question was not presented in that case because the contract there under consideration was a parol contract. The case of Swartz et al. v. Steel et al., 8 C. C, 154, which was reversed in 55 Ohio St., 685, on the authority of Shahan v. Swan, was also founded upon an oral contract. There wás introduced in the Smarts case the record of a proceeding in the probate court, by which the parties who had agreed to adopt the child undertook to carry out that agreement when the latter was twenty-one years of age. But this record, which consisted of a petition signed by Carnahan and wife “disclosing their intention to make Sarah Ann their heir,” her consent thereto in writing and the journal entry of the .adoption which had been placed upon the records of the probate court, utterly failed to show that Carnahan and wife, whén Sarah Ann was two years old, had proposed to adopt her as their own and make her their heir. In other words, that record wholly failed to show a written contract for adoption made with the Carnahans when Sarah Ann was a child, and the contract proven was an oral one, which brought the case within the rule of Shahan v. Swan. — 142 — So the question for our consideration has never been decided in Ohio so far as shown by reported decisions. In many jurisdictions an oral contract of this character, when fully performed on the part of the person for whose benefit the contract was made, will be specifically enforced. Written contracts were specifically enforced in the following cases: Chehak v. Battles, 133 Ia., 107, 110 N. W. Rep., 330, 8 L. R. A., N. S., 1130; Sharkey v. McDermott, 91 Mo., 647, 4 S. W. Rep., 107; Winne v. Winne, 166 N. Y., 263, 59 N. E. Rep., 832, 82 Am. St. Rep., 647; Burns v. Smith, 21 Mont., 251, 53 Pac. Rep., 742; Fiske v. Lawton, 124 Minn., 85, 144 N. W. Rep., 455; Anderson et al. v. Anderson et al., 75 Kans., 117, 88 Pac. Rep., 743, 9 L. R. A., N. S., 229; Starnes et al. v. Hatcher et al., 121 Tenn. (13 Cates), 330, 117 S. W. Rep., 219. In these cases many objections raised to the power and right of a court of equity to decree specific performance have been considered, and it is unnecessary to repeat what is therein reported. In Starnes v. Hatcher, supra, it is said on page 338 of the opinion: “Unquestionably, so far as the contract contemplated fixing a status for these complainants as heirs by statutory adoption, this now cannot be done. By the death of Starnes, who failed during life to comply with his obligation to adopt these parties, it is made impossible for the courts to do what he should have done in this regard. But it does not follow from this that the complainants are to be cut off from all relief. As we have seen, his agreement was not only to adopt, but to leave — 143 — these parties at his death his estate. Thus it covered two different duties, which he obligated himself to discharge. These were as distinct in character as if he had bound himself in a strictly legal manner, upon a valuable consideration, to convey two tracts of land to another. To a bill to enforce specific performance of such contract he would not be permitted to repel one seeking its enforcement upon the ground that, subsequent to the contract, he had incapacitated himself from a performance of it in its entirety by selling to a third party one of the tracts covered by his covenant. In such case, upon the election of the complainant, relief would be granted, at least to the extent of the tract remaining unsold. Story’s Equity Jurisprudence, Sec. 779.” So in the case under consideration John J. Dennis and Eliza A. Dennis having agreed to adopt Della Snyder (then Lanning), and having agreed that she should inherit any and all property to which she would be entitled if she were their child, there is no reason, since the contract can not be enforced as to the matter of adoption, why it should not be enforced as to the property. Now the contract does not bind John J. Dennis and Eliza A. Dennis to leave their property so that Della would inherit anything from them. The contract requires only that she shall inherit such property as she would be entitled to inherit if she were their child. She was to be treated, so far as the property was concerned, as they would or might treat one of their own children. Eliza A. Dennis and her husband could have devised all their property, or conveyed it by deed, to some other person — 144 — and Della would not have had any redress whatever. Pemberton v. Perrin et al., 94 Neb., 718, 144 N. W. Rep., 164; Doppmann v. Doppmann, 137 App. Div., 82, 114 N. Y. Supp., 620 (affirmed, Doppmann v. Muller, 137 App. Div., 82, 122 N. Y. Supp., 1126, 208 N. Y., 599, 102 N. E. Rep., 1101); Crawford et al. v. Wilson, 139 Ga., 654, 78 S. E. Rep., 30. If Eliza A. Dennis had devised or conveyed by deed all her property to Margaret A. Dennis, Della Snyder would have been like any other child who is disinherited, because a parent may dispose of his property by will or deed without regard to his children. But the property was not conveyed by deed or devised. It was left to pass by law, and the legal title has descended to May Shuttleworth, defendant in error. If Della had been adopted, as agreed, she would now have been the owner of the undivided one-half of the premises described in the petition. Eliza A. Dennis and her husband have therefore failed to comply with their contract, although Della has fully complied with hers. Since the property has passed under the statute of descent Della is entitled to be treated, so far as this property is concerned, as if she were the child of Eliza A. Dennis. Della Snyder did not inherit the property. She is not an heir of Eliza A. Dennis. Her rights in the premises are lodged in the written contract of 1874, fully performed by her. In Emery et al. v. Darling, 50 Ohio St., 160, the contract was that the property should pass by will, and it was held that at the death of the promisor the promisee was the equitable owner of the same. — 145 — In the instant case the property is to pass by means of adoption. .In each case the person making the promise failed to comply with its terms. In each case the property passed by descent. If, after the property passed by descent in the one case, the person to whom the promise was made became the equitable owner thereof, no reason can be assigned why the person to whom the promise was made in the other did not become the equitable owner of the property in controversy. The contract is in writing, and hence does not conflict with the statute of frauds. The title to an undivided one-half of the premises described in the petition descended to Margaret A. Dennis in trust for Della Snyder, and then on the death of Margaret A. Dennis it descended to May Shuttleworth in trust for Della Snyder. There is no obstacle to a specific, performance, and it is only justice that, after her father released her to a stranger and gave up the society of his daughter, according to the contract of 1874 and after Della has fully completed the same, that she should now be decreed what it was agreed she should have when the contract was made. The demurrer to the amended cross-petition should have been overruled. The judgment will be reversed and the cause remanded for further proceedings. Judgment reversed. Walters and Merriman, JJ., concur.