Recictenwald v. Lockard
Recictenwald v. Lockard
Opinion of the Court
This is an appeal from a judgment entered in determination of heirship proceedings and from a final account and decree of distribution of the estate of Josephine Lam-from.
Josephine Lamfrom died intestate in Maricopa County on February 3, 1957. Robert L. Lockard, son of Mrs. Lamfrom’s deceased sister, was appointed administrator of the Lamfrom estate. He claimed to be entitled to the whole estate as the adopted son and sole heir of decedent. Objections
The question of equitable adoption was tried before an advisory jury (the relatives being plaintiffs and Lockard defendant) which rendered a general verdict in favor of defendant. The court without a jury determined that defendant was also legally adopted, and entered judgment for defendant decreeing his right to inherit the entire estate.
Thereafter in probate proceedings the court, without hearing objections filed by plaintiffs to defendant’s final account and petition for distribution, approved the account and ordered distribution to defendant as the son of Josephine Lamfrom.
Plaintiffs assign as error the trial court’s conclusions that (1) a subsequent attempt by defendant’s father to readopt him, after a legal adoption by the Lamfroms, was void, and in any event it did not affect his right to inherit from decedent as her legally adopted son, and (2) that defendant was decedent’s son by equitable adoption. They also complain that the court in probate proceedings, after determination of heirship, failed to hear their objections to Lockard’s final account, but since they failed to state any grounds for, or argue this point, we must consider the assignment of error in this regard abandoned. Goldwaters, Inc. v. Medar, 82 Ariz. 344, 313 P.2d 410 (1957).
With regard to plaintiffs’ objections to the determination of equitable adoption, four propositions of law are advanced:
1. A contract to adopt must be proved in order to establish the status of equitable adoption; a contract to adopt exists only if all the essentials of a contract are proved.
2. The status of equitable adoption cannot exist based on a contract to adopt which has been legally executed.
3. A contract to adopt made and to be performed in a state where such a contract cannot create a status of equitable adoption has no validity or effect whatsoever.
4. A contract to adopt must be proved by clear, cogent and convincing evidence;, a court of equity will not decree specific performance of a contract which is indefinite and uncertain.
An examination of the evidence discloses the following: Defendant was born in Lima, Ohio, the natural son of Nona and A. R. Lockard. Nona Lockard, sister of Josephine Lamfrom died in 1920, when her son was approximately nine years old. Before her death, her sister, Mrs. Lamfrom, said she would take defendant, adopt him, and raise him as her own son. Mrs. Lam-
Defendant made numerous visits to the Lamfroms during his years in the Navy, and he referred to them as “mother” and “father”, and they to him as “son”, according to testimony of witnesses. Several witnesses testified to statements by the Lamfroms that defendant would inherit all of their property. Mr. Lamfrom died in 1943, and Mrs. Lamfrom, as executrix of his will, named herself as her husband’s only heir or next of kin, no mention being made of defendant. In 1949 defendant applied for a bonus, upon retirement from the Navy, giving the names of his natural parents as mother and father, and Mrs. Lamfrom as aunt. He lived thereafter in California and New Mexico, but moved to Scottsdale, Arizona, about three months before Mrs. Lam-from’s death, where he cared for her during her final illness. Defendant testified that throughout his life, the Lamfroms led him to believe he was their adopted son.
This court has in two instances recognized the widely held doctrine of equit
With plaintiffs’ contention that the Lamfroms fully performed their part of the agreement when they legally adopted defendant in 1920, we do not agree. Equity will specifically enforce a contract to adopt when it appears that the child will be deprived of a child’s share of the promisor’s estate, which share is implicit in the promise to adopt.
In support of plaintiffs’ third proposition of law, we are referred to two Ohio cases which it is argued declare that the status of adoption can be created only through legal adoption proceedings,
“Irrespective of the general rule that the law of the place of the making governs the validity of a contract, the courts, in their effort to protect and promote the welfare of the child, have given effect to a contract to adopt, where it has been fully performed on the part of the child, although it was invalid under the laws where it was made.”6
As to plaintiffs’ fourth proposition of law, we said, in Murillo v. Hernandez, 79 Ariz. 1, 9, 281 P.2d 786, 791 (1955):
“ ‘The question of whether evidence is sufficient to be clear and convincing is primarily for the trial court; his finding should not be disturbed unless we must say as a matter of law that no one could reasonably find the evidence to be clear and convincing.’7 * * * Our duty, on appeal, begins and ends with the inquiry whether the trial court had before it evidence upon which an unprejudiced mind might reasonably have reached the same conclusion which was reached.”
We believe that the trial court had before it evidence on which an unprejudiced mind might reasonably have found that all the elements of a contract to adopt appeared by clear and convincing evidence. Judgment affirmed.
. In re Gary’s Estate, 69 Ariz. 228, 211 P.2d 815 (1949); In re Brelm’s Estate, 41 Ariz. 403, 18 P.2d 1112 (1933).
. Roberts v. Roberts, 223 F. 775 (8th Gir. 1915); Monahan v. Monahan, 14 Ill. 2d 449, 153 N.E.2d 1 (1958); Kay v. Niehaus, 298 Mo. 261, 249 S.W. 625 (1923); In re Garcia’s Estate, 45 N.M. 8, 107 P.2d 866 (1940).
. See cases cited supra note 1.
. Glass v. Glass, 125 N.E.2d 375 (Ohio App. 1952); Belden v. Armstrong, 93 Ohio App. 307, 113 N.E.2d 693, (1951).
. See eases cited supra note 1.
. 2 C.J.S. Adoption of Children § 26 (1936). See also Wooley v. Shell Petroleum Corp., 39 N.M. 256, 45 P.2d 927 (1935).
. Quoting Paulsen v. Coombs, 123 Utah 49, 56, 253 P.2d 621, 624 (1953).
Reference
- Full Case Name
- In the Matter of the ESTATE of Josephine LAMFROM, Geraldine Worthington RECICTENWALD v. Robert L. LOCKARD
- Cited By
- 1 case
- Status
- Published