holding that an individual seeking to inherit as an "equitably adopted child" must prove "that he has stood from an age of tender years in a position [e]xactly equivalent to a formally adopted child" (emphasis omitted)
How later courts described this case
- holding that an individual seeking to inherit as an "equitably adopted child" must prove "that he has stood from an age of tender years in a position [e]xactly equivalent to a formally adopted child" (emphasis omitted)
- “An equitably adopted child in practical terms is as much a family member as a formally adopted child and should not be the subject of discrimination.”
- rejecting "an implied contract of adoption [a]s an unnecessary fiction"
- “[T]he only remaining question . . . is whether adherence to formal adoption procedures . . . is the exclusive method by which a person may be accorded the protections of adoptive status in West Virginia. We find that it is not.”
Written by the judges who cited it.
The opinion
Caplan, Chief Justice,
concurring in part and dissenting in part:
While I concur in that portion of the majority opinion designated as III, relating to the time the estate vested, I vigorously dissent to that portion which permits, on appeal, the consideration of a matter which was not considered and decided by the trial court. I refer to the principle or theory of “equitable adoption,” raised in this Court by the appellant, Ada Belle Singer. I do not agree that this matter was fairly considered and decided by the trial court.
In Mowery v. Hitt, 155 W. Va. 103 , 181 S.E.2d 334 (1971), the Court said: “In the exercise of its appellate jurisdiction, this Court will not decide nonjurisdictional questions which have not been decided by the court from which the case has been appealed.” This principle was reaffirmed in Adams v. Bowens, _ W. Va. _, 230 S.E.2d 481 (1976). See Wilkinson v. Searls, 155 W. Va. 475 , 184 S.E.2d 735 (1971); Western Auto Supply v. Dillard, 153 W. Va. 678 ; 172 S.E.2d 388 (1970); In Re: Tax Assessment of Real Estate of Morgan Hotel Corporation, 151 W. Va. 357 , 151 S.E.2d 676 (1966); and Work v. Rogerson, 149 W. Va. 493 , 142 S.E.2d 188 (1965).
In Cook v. Collins, 131 W. Va. 475 , 48 S.E.2d 161 (1948), the following language is found, reflecting one reason in support of the above holding: “This Court, having no original jurisdiction of this cause and acting only as an appellate court, will not consider nonjurisdictional questions not acted upon by the trial court ... To consider and decide nonjurisdictional questions in this Court, not *513 acted upon by the trial court, would be the assumption of jurisdiction by this Court which it does not possess.”
Although the sense of equity expressed by the majority may sound admirable and may create an aura of sympathy for the appellant, Ada Belle Singer, the remanding of this case for the taking of evidence relating to the equitable adoption theory ignores a long established and well reasoned rule, that is, not to consider or decide nonjurisdictional questions not acted upon by the trial court. Perhaps the old saw — hard cases make bad law— could not be more applicable.
The holding of the majority, by considering a matter not decided by the court below, serves only to throw open the gates of appellate review to the extent that we may never be able to close them. New matters, principles and theories will be permitted to be raised here for the first time and then be bounced back to the trial court for decision. When it returns for review, will yet another new assignment appear? Where is the end to fair and effective appellate review?
I would affirm the order of the Circuit Court of Ohio County.