dissenting. This controversy grows out of an adoption proceeding. The parents of a minor child were divorced, and child-support was awarded against the father. The mother married again, and her second husband filed proceedings to adopt the child, but did not obtain the written consent of the father, as is required in Code Ann. §74-403 (Ga. L. 1941, pp. 300, 301; 1950, pp. 289, 290; *141957, p. 367; 1960, pp. 791, 792; 1967, pp. 107, 108). In lieu of the father’s written consent, the petitioner relied on and alleged that the father had "wantonly and wilfully failed to comply” with the judgment for child-support for a period of 12 months. Code Ann. § 74-403 (2), supra, provides that such wanton and wilful failure to comply with a child-support award for a period of 12 months is an exception to the statutory requirement that the father’s written consent be obtained in such cases.
The trial court held that petitioner proved the father had "wantonly and wilfully” failed to comply with the child-support award for a period of 12 months. The majority opinion of this court affirms the lower court, and points out that on appeal the evidence must be construed to uphold rather than destroy the findings and judgment; and further points out that if there is "any evidence” in this record to support the trial court’s findings, same should be affirmed. With these observations by the majority, I am in complete agreement, but I find nothing in the record to support the lower court’s findings. The sole question is whether the petitioner carried the burden of proving that the father had "wantonly and wilfully failed to comply” with the child-support award for 12 months. Even when the evidence is construed most strongly in support of the judgment of the lower court under the "any evidence” rule, the petitioner still failed to carry the burden of proving the allegations of his petition.
To prove that the father had not complied with the order is not enough. Petitioner had to prove that the failure to comply was wanton and wilful. Black’s Law Dictionary defines these two words thus: "'Wilfulness’ implies an act done intentionally and designedly; ’wantonness’ implies action without regard to the rights of others; a conscious failure to observe care, a conscious invasion of the rights of others; wilful, unrestrained action.”
At most petitioner proved that the father had failed to pay, but absolutely no part of the evidence suggests that such failure was wanton and wilful. The mother testified *15that she knew nothing about his employment and kept no record thereof; the evidence is silent as to his health and ability to earn money; the father himself testified that he was unemployed, "in effect” for awhile after the award was made; that he got behind with payments, and then tried to make partial payments which his former wife refused to accept, stating that her lawyer advised her that she had the right to refuse unless all past-due payments were paid. There is no suggestion from the evidence that the father failed to do his best and to offer to pay all that he could pay. The mother also testified to these facts.
The lower court based its findings in part on the failure of the father to make legal tender. A legal tender means a tender of all sums due. See Code §20-1105. The father readily admitted he had not tendered all sums that were due, but this is a far cry from showing that his failure was wanton and wilful.
The record shows that the father was repulsed and thwarted in his efforts to pay as much as he could by the mother’s refusal to accept same when she told him if he mailed a check for less than the full amount she would return it. The father had no duty thereafter of continuing to try to tender partial payments. The law does not require the doing of a vain or foolish thing, or to tender money when notice is given by the payee in advance that it will not be accepted. Williams v. Blanton, 211 Ga. 491, 493 (86 SE2d 504); Nickelson v. Owenby, 208 Ga. 352 (2) (66 SE2d 828); Groover v. Brandon, 200 Ga. 153 (5) (36 SE2d 84); Tolbert v. Short, 150 Ga. 413 (5) (104 SE 245).
The law never requires one to do an impossible act, and in the case sub judice, if the mother had caused the superior court to cite the father for contempt for failure to pay, he could have successfully defended by showing he was unable to pay. "The moment it appears that there is inability, [to pay] it would clearly be the duty of the judge to discharge the party.” Corriher v. McElroy, 209 Ga. 885 (3) (76 SE2d 782). In such contempt of court case, the burden *16would have been upon the father to show his inability to pay; but in the case sub judice, the burden was on the petitioner in the adoption proceedings to prove that the father had "wantonly and wilfully failed to comply” with the child-support award for 12 months.
I therefore dissent and vote to reverse the lower court.
I am authorized to state that Judge Pannell joins in this dissent.