Estate of Radovich

In Estate of Radovich (1957) 48 Cal.2d 116, a child's status as having been equitably adopted was assumed by the entire court, which differed only on whether, upon succeeding to his putative parent's estate, he should be treated for inheritance tax purposes as a natural child or a stranger in blood. In his dissent, Justice Schauer discussed in detail the concept of equitable adoption of children, a point with which the majority had no disagreement. Citing copious authority, he stated (pp. 130-131): "Under the principle that equity will consider that done which ought to have been done, it is generally held that a contract by a person to adopt the child of another as his own, accompanied by a virtual, although not a statutory adoption, may be enforced upon the death of the obligor by adjudging the child entitled to a natural child's share in the property of an obligor dying intestate . . . . 'In upholding such a remedy, the courts do not hold that the child is entitled to the right of inheritance as an heir. They do not undertake to change the status of either party, but merely to enforce a contract which has been fully performed on one side.' . . . When the child takes property in such a case it is as a purchaser by virtue of the contract . . . and by way of damages or specific performance . . . . The child does not become, in a legal sense, the child of the adopting parents except for the purpose of receiving title to their property . . . . The child shares in the estate of the deceased foster parent as though his own child but not as such. In order to do justice and equity, as far as possible, to one who, though having filled the place of a natural born child, through inadvertence or fault has not been legally adopted, the court enforces a contract under which the child is entitled to property, declaring that as a consideration on the part of the foster parents a portion of their property will pass on their death to the child . . . . And in such case, property recompense is generally measured in the amount fixed by the statutes of descent and distribution . . . . But in the absence of statutory adoption, it cannot be held that by enforcing such a contract a legal adoption was effected . . ., or that the child became an heir, even where the contract provided for a right of inheritance . . . ." What this uncontroverted portion of Radovich's dissent lacks in precedential authority, it makes up by supportive citations and persuasiveness. The trial court found, and the Supreme Court affirmed, that George Vukoye was the equitably adopted son of Jack Radovich. George's parents and Radovich orally agreed the latter would adopt George, George changed his surname to Radovich, Jack publicly acknowledged George as his son, and George conducted himself as Jack's natural son. Additional facts were that George lived with Jack for 19 years after the agreement was entered into, and during that period worked in Jack's store.