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Johnson v. Johnson9/14/2000
despite its name, bears almost no relationship to a statutory legal adoption. While the name may cause some confusion, we find its use prevalent in treatises and case law. Presented with this well established name, we conclude it best to use "equitable adoption" to describe this equitable remedy.
[ ] Our own law of equitable adoption finds its roots within the context of a large-scale social experiment, the "placing out" of homeless and indigent children from urban areas in the East to the western United States. Between 1853 and 1929, 150,000 to 200,000 children were relocated by train to the west by charitable and religious societies. See Marilyn Irvin Holt, The Orphan Trains: Placing Out in America (University of Nebraska Press 1992). See also Donald Dale Jackson, For city waifs, a bittersweet trip, Smithsonian, vol. 17, no. 5, at 95 (1986); Orphan Train Riders: Their Own Stories, vols. 1-4 (Orphan Train Heritage Society of America, Inc. 1992, 1993, 1995, 1997). Relocation of these children was seen as the answer to several social problems of the day. It alleviated growing population pressures due to immigration into eastern cities, while satisfying the call for labor in agricultural areas to the west. Holt, at 27. Further, child welfare reformers felt it afforded children of the street an opportunity to grow up with rural values in more "hopeful surroundings." Id. Most placements were memorialized only with an oral agreement made at the train platform and few children were ever formally adopted, leaving them in legal limbo. Id. at 141-42.
[ ] Nearly all of our Court's cases dealing with equitable adoption arise from contracts to adopt entered into in that historical context. Our case law contains three reported cases dealing with the inheritance rights of children placed out in North Dakota by the New York Foundling Hospital, a Catholic organization which began moving children westward in 1870. Holt, at 109. In addition, the companion cases of Borner v. Larson, 293 N.W. 836 (N.D. 1940), and Muhlhauser v. Becker, 20 N.W.2d 353 (N.D. 1945), involve children who were received under a contract to adopt with a "children's home," though that organization and the children's origin are not identified.
[ ] The first of these cases is Klein v. Klein, in which a young man placed in a North Dakota home sought to inherit from his deceased "mother," Katherine Klein. 286 N.W. 898 (N.D. 1939). The young man, Nick, had never been formally adopted, but claimed he should inherit according to an indenture contract Katherine entered into with the Foundling Hospital in 1922. Id. at 899-900. The contract provided Katherine could return him to the Foundling Hospital until he reached the age of twenty-one, canceling the indenture; however, if she elected to keep him, he was to be considered her own child and would inherit from her estate as would a natural child. Id. Nick was a "hard child to manage" and was "addicted to thievery," such that he was committed to the State Training School as a juvenile. Id. at 900. During Nick's period of legal troubles, Katherine's priest wrote to the Foundling Hospital to communicate Katherine's wish that it retrieve Nick. Id. The Foundling Hospital wrote back, expressing sorrow that Nick "turned out so unsatisfactorily," and indicated the next agent in North Dakota would take Nick back. Id. at 901. Our Court stated a contract promising to devise property could be enforced in equity. Id. at 902. However, the Court concluded the contract with the Foundling Hospital was terminated before Nick's twenty-first birthday, and thus he could not inherit from Katherine's estate, despite that the Foundling Hospital never sent someone for him. Id. at 901-02.
[ ] The nex
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