1. A parol obligation to adopt the child of another as the child of the obligor, accompanied by a virtual though not a statutory adoption, and acted upon by all parties concerned for many years and during the obligor's life, may be enforced in equity upon the death of the obligor, by decreeing the child entitled to the rights of a child and heir at law in his estate. Crawford v. Wilson, 139 Ga. 654 *Page 198 (78 S.E. 30, 44 L.R.A. (N.S.) 773); Savannah Bank Trust Co. v. Wolff, 191 Ga. 111 (11 S.E.2d 766).
2. The petition of a minor by next friend, against the widow and natural children of his paternal grandfather, prayed, among other things, that the petitioner be decreed to be the virtually adopted child of such grandfather. It was alleged that, shortly before the death of the petitioner's father in 1928, the father entered into an agreement with the grandfather under which the latter was to adopt the petitioner and have the custody and all parental rights and control over him, and the petitioner was to have all the rights and privileges of a natural son of said grandfather, including the right of inheritance; that the petitioner's mother concurred and acquiesced in said agreement; and that thereafter and until the death of the grandfather in 1939, he did have the custody of the petitioner and exercised exclusive parental control over him, during which time the grandfather frequently remarked and asserted that the petitioner had been adopted by him, and he desired the petitioner to inherit from him and to participate in his estate. Held, that these averments were sufficient to show virtual adoption, within the principle stated in the preceding note. Copelan v. Montfort, 153 Ga. 558 (113 S.E. 514); Columbus Bank Trust Co. v. Jones, 176 Ga. 620 (168 S.E. 561).
3. Where, after the death of the grandfather, his equity in a described tract of land was set apart to his widow (alone) as a year's support, she acquired no greater interest than her husband had therein; and, if the petitioner did in fact occupy the relation of a virtually adopted child as alleged, the widow took the year's support subject to his equitable table rights as such virtually adopted child; and purchasers, holding under her with knowledge of such rights, would in like manner take subject thereto. Accordingly, upon establishment of these facts and virtual adoption as alleged, the petitioner would be entitled to a decree that the year's support was void so far as his rights as a virtually adopted child were concerned. Even though he might not in such case be entitled to any interest as a beneficiary under the year's support previously awarded, he would be entitled to the same rights with respect to the entire estate that he would have had if he had been a natural child and heir at law of the deceased, including the rights of a minor child. Crawford v. Wilson, supra; Ansley, v. Ansley, 154 Ga. 357 (3, 4, 8) (114 S.E. 182); Pair v. Pair, 147 Ga. 754, 759 (95 S.E. 295).
(a) "A general demurrer goes to the whole pleading to which it is addressed, and should be overruled if any part thereof is good is substance." Blaylock v. Hackel, 164 Ga. 257 (5) (138 S.E. 333).
(b) The present case differs on its facts from Williams v. Rosette, 177 Ga. 528 (170 S.E. 373). In that case, the petitioner was a natural child, and therefore any right which he might have had to a year's support was a legal right within the jurisdiction of the court of ordinary. In the instant case, the petitioner's claim is a purely equitable based on an alleged contract, and the court of ordinary would have had no jurisdiction to determine it, or to render any judgment affecting the same. Crawford v. Wilson, 139 Ga. 654 (6) (supra); Burgamy v. Holton, 165 Ga. 384 (141 S.E. 42). *Page 199
(c) The two decisions last above cited were concurred in by all the Justices, and if there is any conflict between them and the decision in Ezell v. Mobley, 160 Ga. 872 (3) (129 S.E. 532), which was not so concurred in, they would take precedence as authority.
4. The petition further alleged in effect that the petitioner and his mother received from the estate of his father approximately $1300; that more than $1000 of this amount was advanced to the petitioner's grandfather at a time when a security deed, made by the grandfather on the land to enable him to pay the purchase-price, was about to be foreclosed; and that the sum advanced to him as stated was so advanced for the purpose of being applied on "the purchase-price of the real estate in question; and it was expressly agreed and distinctly understood that petitioner should be the owner of an undivided half interest therein, which interest of petitioner was to be retained" by the grandfather, "during petitioner's minority in trust for him." The petition does not show affirmatively whether the agreement was in writing or not, but in the briefs counsel for both sides have treated it as an oral agreement. On this assumption, the petition would not allege facts sufficient to raise an implied trust, but would be in violation of the rule that all express trusts must be created or declared in writing. Code, § 108-105; Davis v. Davis, 88 Ga. 191 (14 S.E. 194); Wilder v. Wilder, 138 Ga. 573 (2) (75 S.E. 654); Holmes v. Holmes, 153 Ga. 790 (113 S.E. 81); Alston v. McGonigal, 179 Ga. 617 (2) (176 S.E. 632).
(a) A person in whose favor a trust is claimed to result from the payment of purchase-money must pay the purchase-money as his own; if he merely advances it as a loan, no trust will result. Johnston v. Coney, 120 Ga. 767, 776 (48 S.E. 373).
(b) Nevertheless, since the petition did not show affirmatively that the agreement was not in writing, it was not subject to demurrer on the ground stated. Eaton v. Barnes, 121 Ga. 548 (3) (49 S.E. 593); Crovatt v. Baker, 130 Ga. 507 (3) (61 S.E. 127); Beecher v. Carter, 189 Ga. 234 (4), 241 (5 S.E.2d 648).
5. A special demurrer to a petition must be in writing and filed at the first term, unless there is a later amendment to the petition which materially changes the cause of action, in which event the amendment will open the petition as amended to demurrer. "An immaterial amendment shall not so open the petition or other pleading." Code, §§ 81-1312, 81-1001, 81-1002; Wood v. Wood, 166 Ga. 519 (7) (143 S.E. 770).
(a) An amendment to a petition, made after the first term, does not open the petition to special demurrer where, if the petition was defective as contended, the defect was apparent before as well as after the amendment. Central of Georgia Railway Co. v. Keating, 177 Ga. 345 (2) (170 S.E. 493); Wardlaw v. Southern Railway Co., 199 Ga. 97 (33 S.E.2d 304).
(b) Accordingly, in the present case, an amendment to the petition, alleging merely that the widow of the petitioner's deceased grandfather had notice and knowledge of the invalidity of the year's support judgment and of the petitioner's rights and equities as set out in said original petition at all times therein mentioned, and also had notice and knowledge that the petitioner was virtually adopted by his said *Page 200 grandfather, did not open the petition to special demurrer for misjoinder of causes of action, non-joinder of a legal representative of the grandfather's estate as a party defendant, and lack of sufficient particularity in some of the petitioner's allegations, since, upon a view of the petition as a whole, all of the defects claimed were matters for special demurrer only, and were as clearly apparent before the amendment as afterwards. See, in this connection, Georgia Railroad Banking Co. v. Tice, 124 Ga. 459 (52 S.E. 916, 4 Ann. Cas. 200); Burgamy v. Holton, supra.
6. Under the above rulings, the court properly overruled all grounds of demurrer, both general and special.
Judgment affirmed. All the Justicesconcur.
No. 15066. APRIL 4, 1945. On September 7, 1943, Moody A. Harrison, a minor, by Mrs. Jessie Burroughs (formerly Mrs. Harrison) as next friend, filed a petition in equity against Mrs. N. L. Smith (formerly Mrs. Lee Pierce), Mrs. Bessie Smith, Mrs. Essie Smith, Mrs. Jessie Burroughs, B. N. Pierce, Luther B. Ramsey, and W. J. Cothran. The suit was returnable to the September term, 1943, of the superior court of Franklin County, and alleged substantially the following:
Mrs. N. L. Smith is the widow, and Mrs. Bessie Smith, Mrs. Essie Smith, Mrs. Jessie Burroughs, and B. N. Pierce are the sole natural children, of Lee Pierce, deceased, late of said county. Lee Pierce died intestate on October 22, 1939, survived by his widow and natural children, named above, all of whom were adults at the time of his death, and by the petitioner, Moody A. Harrison, an adopted minor son.
At the December term, 1939, of the court of ordinary of said county, there was set apart out of said decedent's estate, as a year's support for his widow alone, all of the decedent's right, title, interest, and equity in described real estate; a copy of the year's-support proceedings being attached as an exhibit to the petition.
It was the duty of said widow to have named said minor adopted son as a beneficiary in the application for a year's support, and to have had said year's support set apart both to herself and the petitioner. Said widow failed to name the petitioner as a beneficiary in the application for year's support, and procured the same to be set aside to herself alone, thus improperly excluding said minor from any beneficial interest therein. By reason of the exclusion *Page 201 of the petitioner in said application, and his being thus deprived of any beneficial interest in the property set apart, the judgment setting apart said property to the widow alone was void and ineffectual to vest in her any right, title, interest, or equity in said real estate. In the application for the year's support, signed by Mrs. Pierce as widow, it was stated that the decedent left "no minor children surviving him."
By deed dated December 5, 1939, said widow purported to convey a portion of the real estate in question to W. J. Cothran, a copy of said deed being attached as an exhibit to the petition.
Said Luther B. Ramsey is a tenant of said Cothran, and is in portion as such tenant of the portion of the property in question which is claimed by Cothran under said deed executed to him by the widow of Lee Pierce.
On August 7, 1943, said widow executed and delivered to her son, B. N. Pierce, a deed covering the entire tract in question, notwithstanding he then and prior thereto had notice and actual knowledge of the rights and equities of the petitioner as herein set forth.
The petitioner is the son of Moody L. Harrison and his wife, who prior to her marriage was Jessie Pierce, daughter of Lee Pierce. The petitioner's father died May 4, 1928. Shortly before his death, he and Lee Pierce made and entered into an agreement, the substance of which was: Lee Pierce was to adopt the petitioner, and was to have custody of and all parental rights and privileges over him, and he was to have all the rights and privileges of a natural son of said Lee Pierce, including the right of inheritance. The petitioner's mother concurred and acquiesced in said agreement. Thereafter, until the date of his death, Lee Pierce had custody of the petitioner and exercised exclusive parental control and rights over him, during which period Lee Pierce frequently remarked and asserted that the petitioner had been adopted by him, and he desired that the petitioner inherit from him and participate in his estate as if he were his natural son.
The petitioner and his mother received from the estate of his deceased father the sum of approximately $1300. Lee Pierce acquired the real estate here involved from M. Crawford by deed dated December 15, 1925, and by security deed of even date conveyed said property to Union Central Life Insurance Company to *Page 202 secure the payment of a $5000 loan to enable him to pay the purchase-price of said property. In 1928 and 1929, Lee Pierce was in "awful" financial condition, and was in imminent peril of having said property subjected to the payment of said loan. More than $1000 of the $1300 received by the petitioner and his mother from the estate of Moody L. Harrison was advanced to Lee Pierce for the purpose of being applied on the purchase-price of the real estate in question; and it was expressly agreed and distinctly understood that the petitioner should be the owner of an undivided half interest therein, which interest was to be retained by Lee Pierce during the petitioner's minority in trust for him. The petitioner is entitled to and is the owner of an undivided half interest in said tract, and said property is impressed with a trust in accord with the agreement above set out.
B. N. Pierce is insolvent, and W. J. Cothran is a non-resident of Georgia. Both B. N. Pierce and W. J. Cothran had notice and actual knowledge of the aforesaid year's-support judgment, and of the petitioner's rights and equities as set out herein, at and before the execution of the deeds to them by the widow of Lee Pierce. A multiplicity of suits and circuity of actions will result unless a court of equity assumes jurisdiction and establishes the rights and equities of the petitioner.
Waiving discovery, the petitioner prayed: That he be decreed to be the virtually adopted son of Lee Pierce, deceased; that the deed from the widow of Lee Pierce to B. N. Pierce, above referred to, be decreed void and cancelled of record; that the said year's- support judgment be decreed void; that the petitioner have such other and further relief as the nature of his case authorizes.
The defendant, Mrs. N. L. Smith, died pendente lite, and B. N. Pierce, as the executor of her will, was made a party defendant.
At the August term, 1944, of the superior court, the defendants made an oral motion to dismiss the petition, on the grounds: (1) that no cause of action was alleged; and (2) that it was not alleged that Mrs. N. L. Smith had any notice or knowledge of the virtual adoption of the plaintiff, as alleged in the petition. "Whereupon, without any ruling . . on said oral motion, the plaintiff tendered" an amendment to his petition, which was allowed without objection, in which it was alleged: "That the defendant, Mrs. N. L. Smith, formerly Mrs. Lee Pierce, had notice and knowledge *Page 203 of the invalidity of the aforesaid year's-support judgment and of petitioner's rights and equities as set out in said original petition at all times therein mentioned, and also had notice and knowledge that the said Moody Harrison was virtually adopted by the said Lee Pierce, as set forth in said original petition."
At the same term of court, the defendant filed a written demurrer, on general and special grounds, to the petition as amended. At the September term, 1944, the following order, overruling the demurrer, was entered: "This case was filed to the September term, 1943, of Franklin superior court. At the August term, 1944, the defendants made an oral motion to dismiss the petition on the ground that no cause of action was set out, and that it was not alleged that one of the defendants, Mrs. Lee Pierce, in whose favor the judgment of the court of ordinary of Franklin county was rendered, setting apart a year's support, had notice or knowledge of the virtual adoption alleged in the petition of the plaintiff, Moody Harrison. Thereupon the plaintiff tendered an amendment alleging that she did have knowledge and acted with full knowledge of the rights of plaintiff. This amendment was allowed without objection. After the allowance of the amendment the defendants filed demurrers, both general and special, to the petition as amended. Upon consideration of the demurrers, it is ordered that all the grounds of special demurrer are overruled, on the ground that they were not filed at the first term, as contemplated by statute. It is further ordered that all grounds of general demurrer are overruled." The defendants excepted.