Davis v. Jones' Adm'r

CHIEF JUSTICE BENNETT delivered the opinion op the court. The appellants allege in their petition that George Jones agreed with the mother of the appellant, Marinda Davis, that in consideration of the mother surrendering the costody, care and control of Marinda, then an infant, to him, “he would clothe, support and •educate her, and make her his heir at law, so that she could inherit all his estate.” The appellants say that said Jones died without making Marinda his heir at law. They claim five thousand dollars damage for such failure. The court sustained a demurrer to the petition and the appellants have appealed. Was the agreement to make appellant Marinda the heir of George Jones binding upon him? Such agreements are against the policy of the common law.; hence unauthorized, because heirship is controlled [321] by the law of descents, having for its basis the degrees in blood, &c. And such agreements as that sued on in this case would put the estate in a different channel from that fixed by the law of descents. Such contracts being unauthorized by the common law, and as all common contracts in this State are generally either authorized by the common law or by statute, no contract in general is binding unless it is authorized by the common law or by statute ; and as the same reason exists in this State for forbidding such contracts as exists at common law, they are unauthorized and not binding. Bnt the Legislature of this State has seen proper to authorize certain parties to make persons not related to them their legal heirs upon certain conditions, by petition to the county court having jurisdiction. And it has been settled by this court that the authority thus given is the only authority existing in this State, by which one person can make another his legal heir, and any agreement by one person to make another his legal heir, not in accordance with said statute, is not enforceable (see Willoughby, &c., v. Motley, 83 Ky., 300; Power v. Hafley, 85 Ky., 671); and no action will lie for its breach. In the case of Allen v. Thomas, 3 Met., 198, the father of a bastard child agreed with its mother, she being about to sue him, to contribute to the support of the mother and child, and pay to the child ten thousand dollars when requested. It was held that the agreement was binding, because it was' based upon a compromise and adjustment of a claim that the mother had a right “to make in behalf of herself and child. There is no [322] principle of public policy or of statute forbidding a compromise of such claim. [321] [[Image here]] [322] In this case, the agreement not being in accordance with the staute, supra, is not enforceable, and. no action will lie for its breach. The judgment is affirmed.