Equity. Dougherty Probate Court. Before Judge Stephenson.
Moore, Clarke, DuVall & Rodgers, James H. Edge, Marshall L. Portivent, Jr., for appellant.
Jessica Rogers, pro se.
BLACKWELL, Justice. All the Justices concur.
Lillian and Jimmie Lee Johnson were married for 37 years, and together, they raised her grandniece, Jessica Rogers. In 2005, Ms. Johnson made a will that included a number of bequests to Rogers. Ms. Johnson died in 2011, and Mr. Johnson then
sought to probate her will. Rogers filed a caveat, asserting that she had been adopted by Ms. Johnson after the will was made, which would entitle her to an intestate share of the estate under OCGA § 53-4-48 (c). Although [297 Ga. 414] Rogers was unable to point to any statutory adoption by Ms. Johnson, she claimed nonetheless that she had been adopted pursuant to the equitable doctrine of " virtual adoption." The probate court agreed that Rogers was " virtually adopted" by Ms. Johnson after she made her will, and so, the probate court admitted the will to probate, but subject to Rogers taking an intestate share of the estate. Mr. Johnson appeals, and he argues that the doctrine of virtual adoption has no application in a case in which the decedent disposed of her entire estate by will. We agree, and for that reason, although we affirm the admission of the will to probate, we reverse the judgment that Rogers is entitled to an intestate share.
" Virtual adoption is an equitable remedy utilized when the conduct of the parties creates an implied adoption without a court order." Morgan v. Howard, 285 Ga. 512, 512 (1) (678 S.E.2d 882) (2009) (citation omitted). This Court first recognized the doctrine of virtual adoption in Crawford v. Wilson, 139 Ga. 654, 654 (1) (78 S.E. 30) (1913), noting that " [a] parol obligation by a person to adopt the child of another as his own, ... 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 as a child to the property of the obligor, undisposed of by will." As we recently explained, the doctrine of virtual adoption " is applied only after the death of the person who agreed to adopt the child ... and when there has been no legal (statutory) adoption. The child, who is often an adult by that time, is allowed to invoke the doctrine of virtual adoption to avoid an unfair result from the application of intestacy statutes." Sanders v. Riley, 296 Ga. 693, 698 (2) (770 S.E.2d 570) (2015) (citation and punctuation omitted). Indeed, the purpose of virtual adoption is " [t]o correct the injustice that would result were the intestacy laws woodenly applied," and " [t]he courts have traditionally limited the doctrine to narrow circumstances, reasoning that the adoption statutes are in derogation of the common law and thus provide the exclusive means for [equitably] effecting an adoption or obtaining its benefits." Jan Ellen Rein, " Relatives by Blood, Adoption, and Association: Who Should Get What and Why," 37 Vand. L.Rev. 711, 767 (VII) (1984). See also Welch v. Welch, 265 Ga. 89, 90 (453 S.E.2d 445) (1995) (" [v]irtual adoption is not a doctrine to be employed broadly" ).
[297 Ga. 415] To establish a virtual adoption, Georgia has long required at least some showing of an agreement between the natural and adoptive parents, a severance of the actual relationship of parent and child as between the child and the natural parents, the establishment of such a relationship between the child and the adoptive parents, and the intestacy of the adoptive parent. Morgan, 285 Ga. at 513 (3), (4); Lee v. Gurley, 260 Ga. 23, 24 (1) (389 S.E.2d 333) (1990); Williams v. Murray, 239 Ga. 276, 276 (236 S.E.2d 624) (1977). " These elements, particularly the requirement of intestacy, limit the circumstances under which the doctrine may be applied." Lankford v. Wright, 347 N.C. 115, 489 S.E.2d 604, 607
Although the Georgia courts have interpreted the equitable principle of virtual adoption " on numerous occasions, they have never extended it beyond the intestacy situation found in Crawford." Ellison v. Thompson, 240 Ga. 594, 596 (242 S.E.2d 95) (1978). See also Prince v. Black, 256 Ga. 79, 80 (344 S.E.2d 411) (1986) (virtual adoption applies " [i]n situations in which [adoptive] parents die intestate after they have made an agreement to adopt the child and the other elements are established" ). As a result, this Court has previously decided that, where a will gives all of the real and personal property of the alleged adoptive parents to someone other than the alleged virtual adoptee, except for a certain specific bequest of personal property, there no longer remains in the estate any property subject to enforcement of the virtual adoption claim. Banes v. Derricotte, 215 Ga. 892, 896 (2) (114 S.E.2d 12) (1960) (emphasizing that the virtual adoptee is only entitled to property " ' undisposed of by will ' " (citations omitted; emphasis in original)). See also Ezell v. Mobley, 160 Ga. 872, 872 (2) (129 S.E. 532) (1925) (virtual adoptee is entitled to " the property of the obligor if the latter dies without disposing of his property by will" (citations omitted; emphasis supplied)).
This intestacy requirement is completely consistent with the law of equitable or virtual adoption in other states. " Almost exclusively, the application of the doctrine has been limited to intestate estates. It generally has not been applied to testate estates ... but only to intestate estates where the decedent's intent is unknown." Estate of Seader, 2003 WY 119, 76 P.3d 1236, 1241 (Wyo. 2003) (citations omitted). See also Ellison, 240 Ga. at 596 (" Other jurisdictions which recognize this principle also limit its application to the Crawford situation." ) (citation omitted); Lankford, 489 S.E.2d at 607 (" [T]he doctrine acts only to recognize the inheritance rights of a child whose [adoptive] parents died intestate . ... The doctrine is invoked for the sole benefit of the [adoptive] child in determining heirship upon the intestate death of the person or persons contracting to adopt." ). Otherwise, " the result may negate both legislative and testamentary intent." Seader, 76 P.3d at 1245-1246 (footnote omitted). " The effect of a promise to adopt and [297 Ga. 416] the application ...