The opinion
ENGEL, Circuit Judge,
dissenting.
I respectfully dissent. While the result reached by the majority has much appeal, I am unable to conclude it is a proper application of either the Social Security Act or Michigan law. Title 42 U.S.C. § 416 (h)(2)(A) (1976) provides that “the Sec *844 retary shall apply such law as would be applied in determining the devolution of intestate personal property by the courts of the State in which such insured individual is domiciled at the time such applicant files application ...” and further provides that “[Applicants who according to such law would have the same status relative to taking intestate personal property as a child or parent shall be deemed such.” (Emphasis added). If it had so wished, Congress might have provided that persons entitled under state law to participate in the proceeds of recoveries in tort for wrongful death be eligible for benefits under the dependency provision of the Social Security Act. Plainly, however, it did not do so.
Likewise, I find nothing in Michigan law to suggest that the courts or legislature of that state conceived that they were amending Michigan’s laws of intestate succession either in deciding Wycko v. Gnodtke, 361 Mich. 331 , 105 N.W.2d 118 (1960), or in subsequently incorporating the Wycko result into Michigan statutory law in Mich. Comp.Laws § 600.2922 (Supp.1980). Had the Michigan legislature so intended, presumably it could have amended the probate code and the laws of adoption and intestacy at the same time. Again, the legislature has not done so.
The majority’s efforts to see in Roberts v. Sutton, 317 Mich. 458 , 27 N.W.2d 54 (1947), a tendency to alter the laws of intestacy by incorporating concepts akin to those of in loco parentis are simply not supported by a plain reading of that case and of the clear line of Michigan authority which preceded it. The recurring theme of those cases, as I read them, is that equitable principles will permit enforcement of a contract to devise or bequeath property or to adopt where otherwise a legal impediment stands in the way where the claimant to the estate has furnished the agreed consideration, either directly or indirectly.
Thus in Roberts , the plaintiff was the stepdaughter of the deceased and assisted the deceased in his dental practice for several years both before and after she came of age. During the deceased’s last years she took care of him, “provided [his] meals and in every way evidenced a filial devotion.” 27 N.W.2d at 54 . The legal impediment was that while the doctor had sought to adopt the plaintiff and while in fact an adoption order had actually issued, the order itself was found after the doctor’s death to be void. In such circumstances, the Supreme Court of Michigan found an implied contract to adopt frustrated by law but enforceable in equity.
In Perry v. Boyce, 323 Mich. 95 , 34 N.W.2d 570 (1948), a father-son relationship existed between Perry and MacGregor for many years. In fact, MacGregor had on at least four occasions, by a writing and reaffirmations, specifically sought to make Perry his heir. Those documents, legally ineffective as wills, unmistakably recognized MacGregor’s intent to make Perry his heir in consideration for Perry’s services. At the age of 14 years, Perry had gone to live with MacGregor. During the depression Perry undertook to sell on the streets and from house to house the flower stands and papers which MacGregor had made, thus providing them both with the necessaries of life during that difficult period. Later, Perry sent MacGregor money while he was in the maritime service. Perry also had purchased property on land contract, made payments on it and had title to it placed in MacGregor’s name. The Michigan Supreme Court found specifically that because the several documents signed by MacGregor lacked the formal requisites of wills, “we must hold that Perry was not entitled to take an heir, devisee or legatee . ... ” 34 N.W.2d at 572 . Nevertheless, the court found that the authorities cited in Roberts were applicable and ruled that “[s]ince the facts and circumstances warrant an inference of an agreement to adopt, Perry, in absence of any heir at law, is equitably entitled to all the real and personal property of which MacGregor died possessed, the same as if he had been his actual son.” Id. (emphasis added).
Underlying all Michigan cases on the issue of equitable adoption is Wright v. Wright, 99 Mich. 170 , 58 N.W. 54 (1894). *845 There the defendant was bound out by the superintendent of the poor to the decedent, Wright, at the age of two. When defendant was nine, Wright and his wife sought to adopt him. As in Roberts v. Sutton, supra, an adoption order was actually entered, only to be found void later when the adoption statute was held unconstitutional. Defendant remained with the Wrights until the death of decedent and gave them his labor on their farm without compensation. As Justice Long, speaking for the majority, observed:
During all these years they treated defendant as their son and heir, and Mr. Wright died in the belief that he would inherit the property the same as an own son would have done .... During all these years he had rendered them filial affection, and given them his labor upon the farm, with the belief that at their decease he would inherit all they possessed. We think there may be said to be a contract, impliedly at least, that defendant was to have this property, and that there had been such a performance on the part of the defendant as to take the case out of the operation of the statute of frauds.
Roberts v. Sutton, 27 N.W.2d at 55 -56 (quoting Wright v. Wright, 58 N.W. at 55 ) (emphasis added by Justice Dethmers in Roberts).
The foregoing and other Michigan cases are fully and, in my opinion, correctly analyzed by Judge Gubow in Steward v. Richardson, 353 F.Supp. 822 (E.D.Mich.1972), which is rejected by the majority here. In my opinion, Judge DeMascio did not err in adhering to this authority when he rejected the position of the magistrate in this case and upheld the final decision of the Secretary. 1
As in Steward v. Richardson, supra, the facts here fall substantially short of those required for an equitable adoption under Michigan law. There has in fact been no adoption here. The mother’s permission for the grandparents to adopt was given only after the instant proceedings were begun, suggesting at least the generation of self-serving evidence, motivated more by the prospect of increased social security benefits for the Blairs than by an unqualified desire to have Barbara adopted. When they obtained custody of Barbara in 1966, the Blairs might instead have sought to adopt her. They did not. The relationship between mother, daughter, and granddaughter appears always to have been just that, without any effort to disregard the relationship of mother and daughter existing between Judith and Barbara. Barbara has never used the Blair surname. Barbara called Judith “momma” and the Blairs “grandpa and grandma,” which is, of course, exactly what they are. Mrs. Blair encourages the maintenance of a parent-child relationship between Judith and Barbara. Finally, the record is devoid of any evidence that Judith or Barbara tendered any consideration of the type required by the Michigan cases to find an equitable adoption.
As is true of undoubtedly tens of thousands of children of broken homes in the United States, Barbara Blair lives with her grandparents. But, she is a grandchild and not a child. She has a mother still living. Although the Blairs have legal custody of Barbara, that is not the test under the statute. The statutory test is whether, if the grandparents should die intestate, Barbara Blair would be entitled under Michigan law to inherit as a child the intestate personal property of the grandparents even though her mother is still living and would herself be treated as a child of the Blairs *846 for the purposes of inheritance. 2 An affirmative response to this test would give rise to a number of enormously difficult issues that the Michigan courts and legislature would then have to resolve. Would the Michigan probate court create for Barbara a share equal to that of her mother and any other children of the Blairs upon whom the intestate property devolves? Or would Barbara take her mother’s share, and thus disinherit the latter? Or would Barbara and her mother each take a share per capita with any other children of the Blairs, to the latter’s prejudice?
Additionally, the Blairs, as grandparents, were under no legal obligation to support Barbara. The 1957 amendments to Michigan’s poor laws relieved grandparents of liability for the support of a dependent child. See Mich.Comp.Laws, § 401.2 and § 401.5 (1976), as amended by 1957 Mich. Pub.Acts No. 44, § 1.
The holding of the majority here may represent a socially desirable result, and certainly Congress might in its wisdom broadly extend coverage to dependent grandchildren generally, or to children to whom the eligible wage-earner stands in loco parentis. That Congress has chosen the less elastic rules of intestate devolution of personal property would, however, seem to have been a conscious choice to limit this area of coverage. It very well might have been a recognition of the tremendously expensive effect of a broader rule upon the financial stability of the system. It cannot seriously be argued that Congress is without power to attack less than the entire problem. Dandridge v. Williams, 397 U.S. 471 , 90 S.Ct. 1153 , 25 L.Ed.2d 491 (1970). These decisions are up to Congress, not the courts. While I do not suppose that Erie Railroad v. Tompkins, 304 U.S. 64 , 58 S.Ct. 817 , 82 L.Ed. 1188 (1938), has any viability in this non-diversity action, it makes sense that the statutory command here, as does the judicial command in Erie, counsels us to ascertain what the state law is, and not what perhaps it ought to be.
I would affirm the judgment of the district court and uphold the Secretary’s decision.
. It might also be argued that an analysis of the Michigan cases and their consistent rationale leave considerable doubt that the Michigan law of equitable adoption is in any way a Michigan “law concerning the devolution of intestate personal property” under the Social Security Act. In reality, it is a law not of intestacy but of contract enforceability in equity notwithstanding the laws of intestacy. Such a conclusion need not be reached with any finality, however, since it is apparent to me that the prime requirement of consideration for equitable adoption is not met here.
. The Michigan statute concerning the distribution of personal property is compiled in Mich. Comp.Laws § 702.93 (1980).