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Johnson v. Johnson9/14/2000
t two cases, Borner and Muhlhauser, involved siblings who sought to inherit from a deceased as his children, based on his unfulfilled promise to adopt them. In Borner, the siblings wished to be recognized as the deceased's adopted children so they could nominate an administrator for the estate under § 8657, 1913 Comp. Laws. 293 N.W. at 837. A three justice majority of this Court held the children were not entitled to nominate an administrator under that statute because they had not been adopted according to statutory procedures. Id. at 840. The majority stated, however, its decision in no way determined the children's interest in the estate; should they come forward with proof of a contract to adopt, their rights would be determined according to that agreement. Id. Two dissenting justices argued the children clearly established the deceased entered into a contract to adopt them which created the same "rights, obligations and duties that an adoption legally executed would have created." Id. The minority thus contended the children were entitled to nominate an administrator under the statute. Id. In Muhlhauser, the same parties returned, though in that case the issue was the authority of the county court to interpret the contract to adopt. 20 N.W.2d at 354. The court recognized that a contract to adopt could be specifically enforced in equity, but concluded the county court, which was not a court of equity, had no jurisdiction to interpret such a contract. Id. at 359. See also Zimmerman v. Kitzan, 65 N.W.2d 462, 466 (N.D. 1954) ("Such a contract may be established in a court of equity if there is sufficient evidence.").
[ ] Our Court next considered equitable adoption in Fish v. Berzel, 101 N.W.2d 548 (N.D. 1960). There, we concluded a child placed here under a Foundling Hospital indenture, which was never canceled, could inherit as would a natural child of the deceased, despite that she was never adopted according to statutory procedures. Id. at 556-57. Further, we honored the contract to adopt, under which the child received one-half of the estate, over the decedent's wishes expressed in his will, which left the child only one-third. Id. at 551.
[ ] Finally, this Court considered the right of individuals to inherit from a child placed in the home of their natural parents under a contract with the Foundling Hospital. Geiger v. Estate of Connelly, 271 N.W.2d 570, 571 (N.D. 1978). John Connelly was received under an indenture into the North Dakota home of John and Annie Geiger; he died without lineal descendants, and the Geigers' natural children and grandchildren claimed the indenture had the legal effect of a statutory adoption, which would allow them to inherit from his estate. Id. at 572-73. Our Court disagreed. Relying on Fish, we stated the beneficiary of such an indenture could inherit according to the laws of intestate succession because of the indenture's terms, but that the contract's terms went no farther. Id. at 573. We concluded a contract or agreement to adopt "does not, in and of itself, create a status of parent and child between the child and the promisor." Id.
[ ] In addition to the case law of this Court, we consider persuasive the case of Ceglowski v. Zachor, 102 F. Supp. 513 (D. N.D. 1951). In that case, a childless North Dakota couple, Stephen and Theressa Ceglowski, traveled to Germany where they agreed to adopt the child of Stephen's brother, Andrew. Id. at 514. The Ceglowskis promised to adopt the child, named Henry, and to bring him up as if he was their own; however, the couple never formally adopted Henry. Id. at 515. Stephen died in 1949, and Theressa died intestate in 1950; Henry sought to inherit from the estate under the 40-year old contract. Id. at 514-15.
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