The Hawaiian gazette., 1890-03-11

appeal from ruling Of Dole, j.
JUDD, ID, M'CULLY, BICKERToN AND DOLE,
III. PRESTON j, HAVING BEEN THE
ATTORNEY DID NOT SIT.
Articles of adoption were executed
by A. the father, B. the adopting
mother and c. the adopted child,
containing a separate covenant be-
tween B. who promised to convey
or devise certain real estate TO G..
and G. who promised to obey the
lawful commands of B.
Demurrer that the consideration in
the second covenant was invalid
because the promise to obey was
only the promise TO perform law
full duty, OdS OUerruJed o. the
ground that this was a concurrent
part of the contract, G. not then
having been adopted, and further
more that the promise of B. to c..
is supported by the covenant of A.
to B. for the adopting
Opinion of the Court, per McCully, j.
The plaintiffs bring bill in
equity for the specific performance
by the defendants decedent of a
covenant contained in certain in
strument to the following effect.
There are three parties, George
Risely of the first part, Margaret
Keegan, widow, of the second part
and Mary Risely minor daughter
of the said George Risely of the third
part. There is first covenant be-
tween the party of the first part
and the party of the second part
wherein the said George Risely
surrenders to Mrs. Keegan his par
entail control and rights over his
child Mary, Mrs. Keegan recipro-
cally covenanting to adopt, main
tain and care for her as if she were
her own natural daughter. There
is next a separate covenant between
the second and third parties. The
second party covenants to make
valid conveyance to the third party
of a described piece of real estate,
or to devise it to her by her last
will and testament, and the party
of the third part reciprocally cOven-
ants with the second party hence
forth to obey her commands and to
perform the duty of child as to-
wards a natural mother.
Mrs. Keegan having failed to
make a conveyance of the property,
or to devise it to Mary Risely in
her will, the bill is brought against
the executor and trustee of her will
to compel specific performance.
The demurrer is " on the ground
that it does not appear by said bill
that there was or is any valuable
consideration for the conveyance
here sought nor any valid covenant
for such conveyance which could
have been enforced against the said
Margaret Keegan in her life time
nor against this defendant since her
decease."
1t may ne said at once that there
is ne covenant for such conveyance
which could have been enforced
against the decedent in her life
time unless she had otherwise con-
veyed away these premises or by
another marriage had given a hus-
band some rights therein, or in
some other way was putting it out
of her power to make the convey
ance or devise she had contracted
to make, for she had the option of
only giving the agreed benefit after
her death.
1t is claimed by the demurrer
that the expressed consideration for
the conveyance or devise to be
made, the promise of the adopted
child to obey, is naked and invalid
as being a premise to do what she
was already bound by law to do.
By the statutes of this Kingdom,
found at page 21O Compiled Laws,
a child adopted as by law allowed
is bound to obey the lawful and
moral commands of the parents by
adoption.
Adoption is however a relation
artifcially created and has in it
some points not perfectly CORES
ponding with the natural relation.
We observe that in the beginning
the creation of the relation is pure
ly voluntary one on the part of
the parents who give and the par
ents who take and adopt the child.
Special terms may be made in the
contract of adoption, and frequent
ly are, particularly with regard to
the pecuniary interest of the child.
The child having come to years of
understanding may be allowed TO
have some voice in the proceeding.
1t was so in the case before US
when the subject of adoption was
made a separate third party to the
contract. She was treated as
person of sufficient understanding
to join in a contract by the Justice