In the Matter of the ESTATE of Josephine LAMFROM, Deceased. Geraldine Worthington RECKTENWALD et al., Appellants,
Robert L. LOCKARD, Appellee.
Rehearing Denied March 13, 1962.
[90 Ariz. 364] Cunningham, Carson & Messinger, Keith W. Ragan, Phoenix, for appellants.
Dallas P. Richeson, Kenneth Biaett, Phoenix, for appellee.
This is an appeal from a judgment entered in determination of heirship proceedings and from a final account and decree of distribution of the estate of Josephine Lamfrom.
Josephine Lamfrom died intestate in Maricopa County on February 3, 1957. Robert L. Lockard, son of Mrs. Lamfrom's deceased sister, was appointed administrator of the Lamfrom estate. He claimed to be entitled to the whole estate as the adopted son and sole heir of decedent. Objections [90 Ariz. 365] to his final account and petition for distribution and a complaint for determination of heirship were filed on behalf of certain other relatives of decedent who claimed distributive shares in the estate, denying that Lockard was an adopted son. Lockard's claim was based on either legal or equitable adoption.
The question of equitable adoption was tried before an advisory jury (the relatives being plaintiffs and Lockard defendant) which rendered a general verdict in favor of defendant. The court without a jury determined that defendant was also legally adopted, and entered judgment for defendant decreeing his right to inherit the entire estate.
Thereafter in probate proceedings the court, without hearing objections filed by plaintiffs to defendant's final account and petition for distribution, approved the account and ordered distribution to defendant as the son of Josephine Lamfrom.
Plaintiffs assign as error the trial court's conclusions that (1) a subsequent attempt by defendant's father to readopt him, after a legal adoption by the Lamfroms, was void, and in any event it did not affect his right to inherit from decedent as her legally adopted son, and (2) that defendant was decedent's son by equitable adoption. They also complain that the court in probate proceedings, after determination of heirship, failed to hear their objections to Lockard's final account, but since they failed to state any grounds for, or argue this point, we
must consider the assignment of error in this regard abandoned. Goldwaters, Inc. v. Medar, 82 Ariz. 344, 313 P.2d 410 (1957).
With regard to plaintiffs' objections to the determination of equitable adoption, four propositions of law are advanced:
1. A contract to adopt must be proved in order to establish the status of equitable adoption; a contract to adopt exists only if all the essentials of a contract are proved.
2. The status of equitable adoption cannot exist based on a contract to adopt which has been legally executed.
3. A contract to adopt made and to be performed in a state where such a contract cannot create a status of equitable adoption has no validity or effect whatsoever.
4. A contract to adopt must be proved by clear, cogent and convincing evidence; a court of equity will not decree specific performance of a contract which is indefinite and uncertain.
An examination of the evidence discloses the following: Defendant was born in Lima, Ohio, the natural son of Nona and A. R. Lockard. Nona Lockard, sister of Josephine Lamfrom died in 1920, when her son was approximately nine years old. Before her death, her sister, Mrs. Lamfrom, said she would take defendant, adopt him, and raise him as her own son. Mrs. Lamfrom[90 Ariz. 366] and her husband, Rudolph Lamfrom, legally adopted defendant in Ohio with the written consent of A. R. Lockard. In 1921, however, A. R. Lockard filed a petition for readoption of his son in the same Ohio court, and a decree of adoption was issued. Defendant had no memory of this proceeding, nor did he remember living with his father thereafter, and there is no evidence that he did. He attended school in North Baltimore Ohio and was enrolled in Miami Military Institute in Ohio in 1922 and 1923, under the name of 'Robert Lamfrom'. In 1925 he was adjudged a dependent child by the Juvenile Court in Allen County, Ohio and placed in custody of a Mrs. Harner for several months, then in temporary care of an uncle, Perry Worthington, who operated a farm owned by the Lamfroms. Mrs. Lamfrom was undergoing a series of operations, but visited defendant at the farm often. In 1926 and again in 1927 the court ordered him placed in the temporary custody of Rudolph Lamfrom. In 1928 he was committed by the court to the permanent care and custody of Mr. Lamfrom, with permission to place him in a foster home with probability of adoption. During 1926 to 1928 defendant was again in the military school, under the name of 'Robert Lamfrom'. In 1928 defendant moved with the Lamfroms to Arizona, and attended Tempe High School under the name ...