In re: Estate of Schappell

In re: The Estate of Michael Gerard Schappell, No. 2048, September Term, 2022. Opinion
by Eyler, James R., J.

EQUITABLE ADOPTION – The test for equitable adoption is one of fairness,
considering all relevant circumstances including evidence of the intent of the decedent to
treat the putative child as a natural or adopted child and the circumstances demonstrating
that the decedent and the putative child functioned as a parent and natural or adopted child
would function. The evidence must be clear and convincing.

ORPHANS’ COURT – TRANSFER OF ISSUES – Equitable adoption is a mixed
question of law and fact and may be transferred to a circuit court.

JURY TRIAL – Equitable adoption is an equitable remedy. When first level facts are not
in dispute, whether equitable adoption exists is decided by a judge, not a jury.
Orphans’ Court for Montgomery County
Case No.: W108952
REPORTED

IN THE APPELLATE COURT

OF MARYLAND

No. 2048

September Term, 2022

______________________________________

IN RE: THE ESTATE OF
MICHAEL GERARD SCHAPPELL
______________________________________

Berger,
Shaw,
Eyler, James R.
(Senior Judge, Specially Assigned),

JJ.
______________________________________

Opinion by Eyler, James R., J.
______________________________________

Filed: February 28, 2024

*Albright, Anne, J. did not participate in the
Court’s decision to designate this opinion for
publication pursuant to Md. Rule 8-605.1.

Pursuant to the Maryland Uniform Electronic Legal
Materials Act (§§ 10-1601 et seq. of the State
Government Article) this document is authentic.

2024.02.28
15:45:18
-05'00'

Gregory Hilton, Clerk
In 2021, Michael G. Schappell, decedent, died intestate, leaving no surviving

spouse, natural children, siblings, parents, or grandparents. Karen Ellis, the decedent’s

stepdaughter and appellee, filed a Petition For Judicial Probate and a Petition for

Determination of Heir in the Orphans’ Court for Montgomery County. Relying on the

doctrine of equitable adoption, appellee sought to be treated as the child of decedent for

purposes of intestate succession. Karen Daniel, Paul Schappell, and Anne O’Boyle,

appellants and intestate heirs of the decedent, filed a petition for summary judgment.

Appellee filed a petition to transmit issues of fact to the Circuit Court for Montgomery

County for trial by a jury. The orphans’ court denied appellants’ petition for summary

judgment and granted appellee’s petition to transfer issues for trial by jury. This appeal

followed.

Had the orphans’ court’s ruling been limited to the denial of the petition for

summary judgment, the ruling would have been unappealable. Regardless, as explained

below, the orphans’ court had discretion to deny the motion and proceed to a more fully

developed record. Thus, the denial of the motion, even if it could have been granted, would

not have been reversible error.

It is the granting of the motion to transfer issues that brings this matter to this Court.

As explained below, we conclude that the orphans’ court erred in granting the motion to

transfer issues for trial by jury and shall remand the case to the orphans’ court for further

proceedings consistent with this opinion.
BACKGROUND 1

Ms. Ellis, born on September 23, 1974, is the natural daughter of Carol Schappell

and Kenneth Klenk. Ms. Schappell and Mr. Klenk separated in 1977. From the time of her

birth until 1977, Ms. Ellis resided with her natural parents. In 1979, Ms. Schappell married

the decedent. Ms. Ellis resided solely with Mr. Klenk until 1988, when she was fourteen.

From 1988 to 1992, Ms. Ellis resided part of the time with Mr. Klenk and part of the time

with the Schappells. Once she turned 18, in 1992, Ms. Ellis did not reside with either Mr.

Klenk or the Schappells.

On December 8, 2019, Ms. Schappell died. On May 29, 2021, the decedent died

intestate. He left no living spouse, children, parents, siblings, or grandparents. The record

reflects that Mr. Klenk is still alive. On November 24, 2021, Ms. Ellis filed a petition for

judicial probate and a petition for determination of heir in the orphans’ court.

In the latter petition, Ms. Ellis alleged the following. From the day the decedent

married her mother, he “was a constant father figure” in Ms. Ellis’s life. He was “very

involved” in her education and helped her with schoolwork. Despite not residing together,

the decedent was “present to help mold [Ms. Ellis’s] character during [her] formative

years[,]” helping her with all “aspects [of] life [with which] a father would help a

daughter.” They spent birthdays, Father’s Days, and other holidays together. As years

passed, the decedent attended Ms. Ellis’s graduations, her wedding, and baptisms for her

children. Ms. Ellis’s husband asked for the decedent’s blessing—which he gave—before

1
The facts are based on the parties’ petitions, oppositions, answers to
interrogatories, affidavits, and other exhibits filed in the orphans’ court.
2
proposing marriage to her. The decedent always was available when Ms. Ellis needed

advice or assistance with anything. She always was available when he needed the same.

The decedent never legally adopted Ms. Ellis, but throughout his life, he introduced

her to people as his daughter. He referred to her husband as his son-in-law and to her

children as his grandchildren. When the decedent’s father died in 2015, the decedent wrote

his obituary in which he referred to Ms. Ellis and her children as his father’s granddaughter

and great-grandchildren. Nevertheless, the decedent never told Ms. Ellis or, to her

knowledge, anyone else that he intended, desired, or promised to adopt her. Ms. Ellis and

the decedent jointly planned Ms. Schappell’s funeral.

When Ms. Schappell died, all of her assets were held jointly with the decedent or

the decedent was the beneficiary. Consequently, all of her assets transferred to the

decedent.

The decedent relied heavily on Ms. Ellis after Ms. Schappell’s death. Ms. Ellis

arranged to have groceries delivered to his home. She called and emailed him multiple

times per week to keep in touch and make sure he was all right. When the decedent’s health

deteriorated, Ms. Ellis was the main point of contact. When the decedent was hospitalized

for six days in August 2020, Ms. Ellis and her husband traveled to Maryland from their

then home in North Carolina to coordinate with the medical providers and manage the

decedent’s household. Soon after, the decedent told Ms. Ellis that he wanted to move to

North Carolina to be closer to her, and she assisted with his planning. The record is unclear,

but presumably, due to health issues, he never completed the move.

3
During his life, the decedent often told Ms. Ellis he intended to leave all his assets

to her. He would tell her, “when [your mother and I are] gone, all of this will be yours,”

and, “one day, all of this will be yours[.]” The decedent stated that he planned to have estate

planning documents drafted to that effect. He named Ms. Ellis as the beneficiary under his

sole life insurance policy.

In the petition for determination of heir, Ms. Ellis asserted her belief that the

decedent was survived by aunts, uncles, and their children, but had limited information

with respect to any of the relatives. Based on the doctrine of equitable adoption, Ms. Ellis

sought an order declaring her to be the child of the decedent for purposes of inheritance.

On December 22, 2021, the orphans’ court denied appellee’s petition of

determination of heir, without explanation. On January 13, 2022, Ms. Ellis filed a motion

for reconsideration. On January 24, 2022, the orphans’ court denied the motion but without

prejudice “nunc pro tunc to December 22, 2021[,]” presumably to allow Ms. Ellis to

identify interested persons to be notified.

On April 29, 2022, Ms. Ellis filed a second petition for determination of heir. The

petition was substantively the same as the first petition but it certified notice to all of the

interested persons who had been identified.

On May 13, 2022, Karen Daniel, a surviving cousin and appellant herein, was

appointed as personal representative of the estate. Appellants filed a petition to dismiss

Ms. Ellis’s petition, arguing that, as a matter of law, the petition failed to state a cause of

action for equitable adoption. The orphans’ court denied the motion without explanation.

4
Following discovery, appellants petitioned for summary judgment, arguing that the

undisputed facts could not support Ms. Ellis’s claim of equitable adoption. Ms. Ellis

opposed the petition and filed a petition to transmit issues. In October 2022, the orphans’

court held a non-evidentiary hearing on both petitions.

At the end of the hearing, the orphans’ court determined that the facts, as presented

by Ms. Ellis, did not, as a matter of law, preclude equitable adoption. The orphans’ court

denied summary judgment without prejudice and issued an Order transmitting issues to the

circuit court. The seven issues transmitted were:

1. Was there some sort of an arrangement between Michael G. Schappell and
Karen Ellis that would give rise to an implication of an intention by Michael
G. Schappell to equitably adopt Karen Ellis?

2. Was there performance of that arrangement on the part of Karen Ellis?

3. Did Michael G. Schappell receive all the benefits and privileges accruing
from such performance by Karen Ellis?

4. By their arrangement was Karen Ellis induced to perform under the belief
that she occupied the status of an adopted child of Michael G. Schappell?

5. Was there a promise by Michael G. Schappell to Karen Ellis that she would
be treated as an adoptive child?

6. Was there an express promise that Karen Ellis would be entitled to receive
Michael [G.] Schappell’s estate?

7. Is Karen Ellis the equitably adopted child of Michael Gerard Schappell?

Appellants timely appealed. 2

An orphans’ court’s order transmitting issues to the circuit court is appealable.
2

Banashak v. Wittstadt, 167 Md. App. 627, 685 (2006).
5
Appellants present the following questions for our review which we have rephrased

for clarity:

1. Did the orphans’ court err in granting appellee’s petition to transmit
issues?

2. Did the orphans’ court err in denying appellants’ petition for
summary judgment?

STANDARD OF REVIEW

In reviewing the orphan’s court’s decision, we will not set aside its factual findings

unless clearly erroneous. In re Watkins, 241 Md. App. 56, 70 (2019). In contrast, we give

no deference to its legal conclusions and review them de novo. Id. In the realm of

transmitting issues, “[i]t is impermissible to submit an issue which poses a pure question

of law, but an issue which raises a mixed question of law and fact may be submitted to a

jury under proper instructions[.]” Nugent v. Wright, 277 Md. 614, 620 (1976) (internal

citation omitted).

DISCUSSION

Adoption and inheritance are related creatures of statute. Hall v. Vallandingham, 75

Md. App. 187, 189, 192 (1988). We have observed previously that “[t]he primary purpose

for adoption was, and still is, inheritance rights[.]” Id. at 189. Maryland’s adoption

requirements are codified in § 5-331 et seq. of the Family Law Article of the Maryland

Code. Only if the adoptive parents meet the statutory criteria and follow the statutory

procedures to finalize the adoption will a child enjoy the status of a member of the adoptive

family and the associated inheritance rights. See McGarvey v. State, 311 Md. 233, 240–41

(1987).

6
Those rights, however, are not “natural right[s] but a privilege granted by the State”

and governed by our Estates and Trusts Article. Hall, 75 Md. App. at 192. Where, as here,

a decedent dies without a will, Maryland’s intestacy statute sets forth a line of succession.

See Md. Code Ann., Estates & Trusts (“ET”) § 3-101 et seq. As with all intestacy statutes,

its aim “is to make such a will for an intestate as he would have been most likely to make

for himself[.]” Barron v. Janney, 225 Md. 228, 234–35 (1961). See also In re Est. of North

Ford, 200 A.3d 1207, 1213 (D.C. 2019) (“The hierarchy of succession set forth in the

intestacy statute is meant to approximate the distributional choices we expect most

decedents would make within a family structure.”); Est. of Ford, 82 P.3d 747, 753 (Cal.

2004) (“The law of intestate succession is intended to carry out the intent [of] a decedent

without a will is most likely to have had.” (cleaned up)). Under Maryland’s intestacy

statute, a stepchild inherits from an estate only if the decedent had no surviving blood

relatives. ET § 3-104(c).

Our intestacy statute is not absolute, however, and may be supplemented by

applying principles of equity to further its goals. See Bd. of Educ. of Montgomery Cnty. v.

Browning, 333 Md. 281, 289 (1994).

I. Equitable Adoption in General

Sometimes called “adoption by estoppel,” “virtual adoption,” or “de facto

adoption,” the doctrine of equitable adoption allows “individuals to circumvent the

statutory adoption procedures for certain limited purposes.” Id. at 287. Each of these labels

is somewhat of a misnomer, however, because even when the requirements are met, “no

relationship of parent and child is created and consequently, [with rare exceptions,] an

7
equitably adopted child does not attain the status of a statutorily adopted child.” Id. See

also 2 AM. JUR. 2d Adoption § 63 (2018 ed.). The term “doctrine” is similarly misleading

as there is “no widely agreed upon animating principle, much less an established test[.]” 3

North Ford, 200 A.3d at 1213.

Both in terms of requirements and consequences, courts’ applications of equitable

adoption principles run the gamut across jurisdictions. On one end of the spectrum, a

minority of states do not recognize an equitable adoption as such. Their reasoning,

generally, is that the application of equitable principles clashes with their state’s intestacy

statute. See, e.g., Wilks v. Langley, 451 S.W.2d 209, 213 (Ark. 1970) (“The mere contract

to adopt is not sufficient of itself to make a child a legal heir of the promisor, because the

right to take as heir exists only by operation of the law.” (cleaned up)); Smith v. Atl. Coast

Line R. Co., 47 S.E.2d 725, 727 (S.C. 1948) (“[T]he method of adoption provided by . . .

statute [is] exclusive.”); Clarkson v. Bliley, 38 S.E.2d 22, 26 (Va. 1946) (“[I]n the matter

of inheritance there is no place for equitable considerations, whether springing from

contract or from a course of conduct.” (cleaned up)). Nevertheless, at least some of these

3
A more apt description of the concept might be “de facto parent-child relationship”
that exists for the purpose in question in a given case. This is especially true in Maryland,
one of the states that has applied the doctrine to issues other than intestate succession, see
Clayton v. Supreme Conclave, Improved Order of Heptasophs, 130 Md. 31 (1917) and
Geramifar v. Geramifar, 113 Md. App. 495 (1997) discussed below. That said, for
consistency’s sake, we will continue using the generally accepted terminology throughout
this opinion. Equitable adoption and de facto parenthood are different concepts. Ordinarily,
the issue in equitable adoption is intestate succession. The issue in de facto parenthood is
standing to seek custody or visitation of a child. See Conover v. Conover, 450 Md. 51
(2016). The considerations overlap, but they are not necessarily the same.
8
courts recognize that an enforceable contract, even one related to inheritance, may result

in an award of damages.

On the other end, without addressing criteria at the moment, West Virginia stands

alone in determining that an equitably adopted child enjoys the same status as a formally

adopted child. See Wheeling Dollar Sav. & Tr. Co. v. Singer, 250 S.E.2d 369, 373 (W. Va.

1978). In Wheeling Dollar, the Supreme Court of Appeals of West Virginia reasoned that

“[a]n 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.” Id. In the almost 40 years

since Wheeling Dollar, however, no other state has adopted West Virginia’s stance that the

status resulting from equitable adoption is identical to the status resulting from statutory

adoption. West Virginia’s criteria for applying the doctrine are not unique, however,

although the requirements are very stringent. 4 The fact that they do not rest on contract has

support in other jurisdictions.

4
Circumstances which tend to show the existence of an equitable adoption
include: the benefits of love and affection accruing to the adopting party,
Foster v. Cheek, 212 Ga. 821, 96 S.E.2d 545 (1957); the performances of
services by the child, Lynn v. Hockaday, 162 Mo. 111, 61 S.W. 885 (1901);
the surrender of ties by the natural parent, Chehak v. Battles, 133 Iowa 107,
110 N.W. 330 (1907); the society, companionship and filial obedience of the
child, Oles v. Wilson, 57 Colo. 246, 141 P. 489 (1914); an invalid or
ineffectual adoption proceeding, Benefield v. Faulkner, 248 Ala. 615, 29 So.
2d 1 (1947); reliance by the adopted person upon the existence of his
adoptive status, Adler v. Moran, 549 S.W.2d 760 (Tex. Civ. App. 1977); the
representation to all the world that the child is a natural or adopted child, In
re Lamfrom’s Estate, 90 Ariz. 363, 368 P.2d 318 (1962); and the rearing of
the child from an age of tender years by the adopting parents. Lamfrom’s
Estate, supra. Of course, evidence can be presented which tends to negate an
(continued…)
9
Maryland has expressly recognized equitable adoption. Browning, 333 Md. at 289.

Maryland has expressly rejected the position that the status resulting from equitable and

statutory adoption is the same for all purposes, however. McGarvey, 311 Md. at 240 (“[W]e

are surely not prepared to go as far as West Virginia has gone.”).

The remaining states that have adopted the doctrine of equitable adoption also agree

that an equitably adopted child does not gain the same status and protections as a statutorily

adopted child outside the specific context in which the doctrine is applied. See, e.g., North

Ford, 200 A.3d at 1213. See also 2 AM. JUR. 2d Adoption § 63 (2018 ed.) (acknowledging

that equitable adoption “is not intended or applied to create the legal relationship of parent

and child, nor is it meant to create a legal adoption” (footnotes omitted)).

In terms of rationale, states fall into three camps. See North Ford, 200 A.3d at 1213–

16. First are the states that ground their application of equitable adoption in principles of

equitable adoption such as failure of the child to perform the duties of an
adopted child, Fisher v. Davidson, 271 Mo. 195, 195 S.W. 1024 (1917), or
misconduct of the child or abandonment of the adoptive parents, Winne v.
Winne, 166 N.Y. 263, 59 N.E. 832 (1901); however, mere mischievous
behavior usually associated with being a child is not sufficient to disprove an
equitable adoption. Tuttle v. Winchell, 104 Neb. 750, 178 N.W. 755 (1920).
Most of the cited cases predicate the finding of an equitable adoption on the
proof of an expressed or implied contract of adoption. While the existence of
an express contract of adoption is very convincing evidence, an implied
contract of adoption is an unnecessary fiction created by courts as a
protection from fraudulent claims. We find that if a claimant can, by clear,
cogent and convincing evidence, prove sufficient facts to convince the trier
of fact that his status is identical to that of a formally adopted child, except
only for the absence of a formal order of adoption, a finding of an equitable
adoption is proper without proof of an adoption contract.

Wheeling Dollar, 250 S.E.2d at 373–74.
10
implied contract and specific performance. 5 See, e.g., Calista Corp. v. Mann, 564 P.2d 53,

62 (Alaska 1977); Barlow v. Barlow, 463 P.2d 305, 308–09 (Colo. 1969). Our Supreme

Court has stated that courts applying this theory “enforce the promise of the adoptive parent

[against their estate,] provided that sufficient consideration is given in return for the

promise of adoption.” Browning, 333 Md. at 288.

Next are the states that rely on principles of equitable estoppel, including

detrimental reliance, to support their application of equitable adoption. See, e.g., In re

Painter’s Est., 67 N.W.2d 617, 618–19 (Iowa 1954); Cubley v. Barbee, 73 S.W.2d 72, 79–

80 (Tex. 1934). Under this theory, “the personal representative of the estate of the adoptive

parent is estopped from asserting that the child was not an adopted child.” Browning, 333

Md. at 288. The situation arises ‘“when, by performance upon the part of the child, the

adoptive parents have received all the benefits and privileges accruing from such

performance, and they by their representations induced such performance under the belief

of the existence of the status of adopted child.”’ Id. (quoting Jones v. Guy, 143 S.W.2d

906, 908 (Tex. 1940)).

Third and finally, representing what may be the current trend, are the states that seek

generally to promote fairness and to honor the decedent’s intent. See, e.g., North Ford, 200

A.3d at 1214; DeHart v. DeHart, 986 N.E.2d 85, 103 (Ill. 2013); Ford, 82 P.3d at 754.

Under this approach, for purposes of inheritance at least, the focus is not on whether a

5
In North Ford, 200 A.3d at 1214, the District of Columbia Court of Appeals
suggested that Maryland falls into this group, citing our Supreme Court’s decision in
Browning, 333 Md. at 287–88. As we discuss below, however, Maryland has not expressly
adopted any specific equitable adoption theory.
11
contract was formed or whether there was reliance by the child but rather on “ensuring that

the decedent’s wishes regarding the disposition of her property are realized” and whether

the child was functionally the child of the decedent. North Ford, 200 A.3d at 1214. Resting

on a “de facto, lifetime-family-member rationale,” First Nat’l Bank in Fairmont v. Phillips,

344 S.E.2d 201, 204 (W. Va. 1985), this theory analyzes a set of factors aimed at discerning

the decedent’s intent, subjectively and objectively, to treat the child the same as a natural

or adopted child along with other relevant circumstances demonstrating a close and

enduring familial relationship. See DeHart, 986 N.E.2d at 103–04; Ford, 82 P.3d at 753–

54; Wheeling Dollar, 250 S.E.2d at 373–74.

II. Equitable Adoption in Maryland

Appellants, the legal heirs, contend that Maryland applies either the

specific-performance theory or the estoppel theory of equitable adoption but that it does

not matter which because both require an express agreement to adopt. According to

appellants, the undisputed facts show no such agreement. Consequently, the orphans’ court

should not have transmitted any issues but, instead, granted them summary judgment.

Ms. Ellis, in contrast, contends that Maryland has not adopted any particular theory of

equitable adoption and urges that we should adopt the flexible fairness approach.

Regardless, in her view, the facts demonstrate an implied agreement by the decedent to

adopt her with the consequence of making her his beneficiary.

Maryland appellate courts have discussed equitable adoption only a few times,

sometimes in dicta. The prior cases largely focus on circumscribing the doctrine’s reach,

rather than determining its threshold criteria. We review them here.

12
A. Clayton v. Supreme Conclave, Improved Order of Heptasophs, 130 Md. 31
(1917)

Before the doctrine had a name, our Supreme Court laid the foundations for

equitable adoption in a case about life insurance benefits.

William Montgomery was a member of what the Court described as a “mutual

order[.]” Clayton, 130 Md. at 35. The Order issued Mr. Montgomery a certificate by which

it promised to pay $1,000 on Mr. Montgomery’s death to his named beneficiaries, whom

he identified as his “adopted children John Carves and Annie Carves[.]” Id. at 32 (quotation

marks omitted). The children were Mr. Montgomery’s niece and nephew by marriage. Id.

at 33. They lived with him after their parents died, from the time they were three and five

years old. Id. But when Mr. Montgomery died, the Order sought to avoid payment. Id. It

contended that the children had not been adopted, and that under the Order’s laws, only

natural children or “children by legal adoption” could be beneficiaries. Id. at 34 (quotation

marks omitted).

The Court upheld the designation of beneficiary. Id. at 37. It observed that

Mr. Montgomery reared the children “as though they were his own[.]” Id. at 33. During

the relevant time period, there was no statute in effect providing for a “legal” adoption. 6

Id. at 35. Acknowledging that, the Court stated: “What was done amounted to an adoption

in fact, and was so acted upon by both the [children] and Mr. Montgomery during [his]

life.” Id. at 33.

6
Maryland’s first adoption statute was enacted in 1892, two years before
Mr. Montgomery joined the Order and was issued the certificate, but “some ten or eleven
years” after he “had in fact adopted the children[.]” Clayton, 130 Md. at 35.
13
In discussing its reasoning, the Court referenced, among other things, cases in other

states addressing property rights. It stated that they:

generally establish the proposition, that a parole obligation by a person to
adopt the child of another as his own, accompanied by the virtual though not
statutory adoption, and acted upon by both parties during the obligor’s life,
may be enforced upon the death of the obligor, who dies without disposing
of the property by his will; nor is such a contract rendered invalid by statutory
provisions requiring the execution of wills to be in writing.

Id. at 36–37.

This quote could lead one to believe that the Court’s decision was resolved on

contract principles. But another factor the Court noted was that Mr. Montgomery made the

beneficiary designation more than two decades before his death, and the Order accepted

his dues and assessments the whole time without question. Id. at 33–34. That and other

references—to us—sound in estoppel. See generally id. Indeed, when discussing this

decision in later cases, the Supreme Court describes its holding as such. See, e.g.,

McGarvey, 311 Md. at 239 (stating that Clayton “applied an estoppel theory”); Besche v.

Murphy, 190 Md. 539, 545–46 (1948) (describing Clayton as holding “that the Heptasophs

were estopped from raising the question that the children were not entitled to the

proceeds”). Another relevant consideration in applying estoppel was that

Mr. Montgomery’s intent that his equitably adopted children be paid under the certificate

was manifest and clear. See Clayton, 130 Md. at 33.

B. Besche v. Murphy, 190 Md. 539 (1948)

Three decades after Clayton, our Supreme Court considered another case touching

on equitable adoption.

14
Annie Ripple died testate. Besche, 190 Md. at 541. The residuary clause in her will

provided that the rest and residue of her estate would go to “those persons who under the

laws of the State of Maryland would take in case of intestacy.” Id. (quotation marks

omitted).

The claimant under the residuary clause lost her parents when she was a young child.

Id. She was then cared for by an “elderly aunt[.]” Id. Three to four years later, when the

claimant was about eight years old, Ms. Ripple and her then husband offered to adopt her

on the condition that all care was relinquished to them. Id. The claimant then lived with

Ms. Ripple and her husband “as their daughter.” Id. at 542. Ms. Ripple and her husband

told the claimant: ‘“We are adopting you, we will be good parents to you.”’ Id. at 541–42.

They changed her name (first and last). Id. at 542. But they never completed the legal

adoption process. Id.

The Court observed that the elderly aunt was in loco parentis and that words and

actions could support the finding of an agreement by the aunt to relinquish all rights. Id. at

545. In discussing cases from other jurisdictions, the Court stated that a non-consummated

agreement to adopt can be enforced with respect to the right of inheritance, the agreement

can be oral, and that the basis is “the full performance of the contract by the child[.]” Id. at

547.

The Court held, however, that Ms. Ripple did not die intestate and that the residuary

estate passed under the will. Id. at 550. Thus, the statute of intestate succession controlled

and could not be amended by the Court—i.e., the child did not inherit from the estate. The

holding is logical because a contrary result would have disregarded Ms. Ripple’s clear and

15
manifest intent based on the language in the will that expressly referred to the intestacy

‘“laws of the State of Maryland.”’ Id. at 541. A reasonable interpretation of the language

is that it meant statutory intestacy laws.

With respect to an agreement, in reviewing cases from other jurisdictions, the Court

observed that, generally, “there must be an agreement to adopt[.]” Id. at 548. The opinion

is notable, however, in that it recognizes that an agreement to adopt can be oral and can be

proved by conduct. Id.

C. McGarvey v. State, 311 Md. 233 (1987)

Almost forty years after Besche, Maryland formally recognized the doctrine of

equitable adoption for the first time.

In McGarvey, the factual basis for equitable adoption existed and was not disputed:

the child’s natural parents and the decedent agreed that the latter would adopt the child, but

the decedent “never got around to” completing the formal adoption process. McGarvey,

311 Md. at 235. When the equitably adoptive parent died, she named the child as the sole

legatee under her will. Id. The question was whether an equitably adopted child was subject

to the rate of tax for collateral or lineal descendants. Id. at 234. Based on statutory language

governing inheritance tax, the Court concluded that “children” includes only formally

adopted children and equitable adoption is not enough to provide favorable tax treatment.

Id. at 241–42.

The Court stated that, in general, the doctrine of equitable adoption:

involves the notion that if an individual who is legally competent to adopt a
child enters into a contract to do so, and if the contract is supported by
consideration in the form of part performance that falls short of completion

16
of statutory adoption, then a court, applying equitable principles, may accord
to the child the status of a formally adopted child for certain limited purposes.

Id. at 234.

We note that the McGarvey Court characterized the facts in Besche as being

sufficient to find an equitable adoption. Id. at 236 (“In Besche, Stella Besche alleged facts

that would have established an equitable or virtual adoption.”). Again, that Court

recognized that any requisite agreement can be proved by conduct. Besche, 190 Md. at 548.

D. Board of Education of Montgomery County v. Browning, 333 Md. 281 (1994)

Paula Browning’s natural father, Lawrence Hutchison, married Marian Gibson.

Browning, 333 Md. at 283. Ms. Browning was reared in the Hutchison–Gibson household.

Id. Ms. Gibson died. Id. She had a sister: Eleanor Hamilton. Id. Ms. Hamilton died intestate

without any heirs. Id. Ms. Browning claimed a right to inheritance from her step-aunt’s

estate based on equitable adoption. Id. at 283–84.

The Supreme Court assumed that Ms. Browning had been equitably adopted, id. at

286, but held that the status did not entitle her to inherit from Ms. Gibson’s sister’s estate.

Id. at 293. The Court reviewed the elements of equitable adoption, in a footnote, and said

that it has been explained under two theories: specific performance of a contract to adopt

or estoppel based on performance by the child and the receipt by the adopting parent of the

benefits and privileges accruing from that performance. Id. at 287 n.3. The Court also stated

that the theory employed is unimportant because application of the doctrine is the same:

“The courts under either theory focus upon the equities involved and require ‘clear and

17
convincing evidence’ of the adoption contract.” Id. at 288 (quoting McGarvey, 311 Md. at

238).

Interestingly, before stating the above, the Court explained that the basis of the

doctrine “is that it is inequitable and unjust to allow the parent to escape the obligations of

an adoptive parent by failing to comply with the agreement[,]” referring to Thompson v.

Moseley, 125 S.W.2d 860, 862 (Mo. 1939). Browning, 333 Md. at 287.

That said, the equities in Browning are not the same as in the case before us.

Ms. Browning’s claim was through her equitably adoptive parent, not from, and, as such,

there was no adequate basis for finding intention or estoppel. But see id. at 298 (Eldridge,

J. dissenting) (“In effect, the Court has said today that . . . [Ms.] Hamilton . . . would have

preferred to leave her estate to the government rather than to [Ms.] Browning who,

although never formally adopted, presumably because of oversight, was a member of the

family for over seventy years. I do not believe that such a result would have been intended

by the deceased.”). This case illustrates the difference between the West Virginia decisions

determining the status of an equitably adopted child is for all purposes as distinguished

from specific purposes.

E. Geramifar v. Geramifar, 113 Md. App. 495 (1997)

The most recent Maryland appellate decision on equitable adoption is this Court’s

only reported opinion on the subject. It also arises outside the context of intestate

succession.

Gholam and Caroline Geramifar married in 1976 but were unable to have children.

Geramifar, 113 Md. App. at 497. In 1992, after deciding to adopt a child of Iranian heritage,

18
they successfully obtained guardianship of an infant named Ashkan from an Iranian court.

Id. at 498. A year later, the parties separated without having begun formal adoption

proceedings in the United States. Id. Mr. Geramifar announced that he did not want custody

or visitation, waived his right to adopt, and refused to provide child support. Id. at 499.

This Court observed that the case was “a textbook example of equitable adoption.” Id. at

501. Interestingly, in doing so, we described the doctrine of equitable adoption as a specific

form of equitable estoppel. Id. at 500 n.3. We ultimately held that, as an equitably adoptive

parent, Mr. Geramifar could not shirk the responsibility of support without court approval.

Id. at 504.

III. Analysis

We glean from the above cases that Maryland will enforce an unconsummated

contract to adopt. See McGarvey, 311 Md. at 238; Geramifar, 113 Md. App. at 500. We

also note, however, that no such contract or agreement was alleged in Browning, where the

Court assumed the requirements of equitable adoption were met, presumably because one

could have been inferred or implied from the surrounding circumstances and

representations of the decedent. See Browning, 333 Md. at 284.

In our view, Maryland precedent does not require us to hold that a contract or

agreement to adopt, express or implied in fact, is required. We are mindful that equitable

adoption has continued to develop since 1997, when the most recent Maryland case was

decided, and in that time has been recognized by courts applying principles of fairness,

19
looking to the intention of the decedent and all relevant circumstances. 7 We conclude that

this approach fits within Maryland precedent, and its rationale is sound.

Exclusive reliance on principles of estoppel, as employed by some courts, is

questionable. Equitable adoption is a form of equitable relief employed to “supplement the

law as applied to particular circumstances[.]” Equity, BLACK’S LAW DICTIONARY (11th ed.

2019). A court employing equitable principles to fill a statutory gap should do so only to

further the statute’s aim or purpose. See Manning v. Potomac Elec. Power Co., 230 Md.

415, 421–22 (1963). Cf. Equitable Tr. Co. v. Imbesi, 287 Md. 249, 261 (1980) (stating that

when interpreting lien instruments, “equity looks rather at the final intent and purpose than

at the form” (cleaned up)). As mentioned above, the purpose of Maryland’s intestate statute

“is to make such a will for an intestate as he would have been most likely to make for

himself[.]” Barron, 225 Md. at 234–35. Although applying equitable estoppel is not

inconsistent with the legislative intent because it seeks to implement the decedent’s likely

intent, it follows, however, that equitable estoppel should be employed to further the

decedent’s interest, not the putative child’s interest or detrimental reliance by the child, and

the analysis should focus on intent and overall relationship.

The pure estoppel rationale has been criticized because “it seems unlikely that a

putative child, particularly one taken in by the decedent as an infant, would have altered

his behavior or performance depending on whether he expected to inherit[.]” North Ford,

7
Although this rationale underlies West Virginia’s application of the doctrine, as
noted above, Maryland has expressly rejected West Virginia’s reasoning only with respect
to the result of equitable adoption—i.e., that it creates a status identical to a legal adoption.
See McGarvey, 311 Md. at 240.
20
200 A.3d at 1214. And again, “the equitable interest is in ensuring that the decedent’s

wishes regarding the disposition of [their] property are realized[,]” not in the child’s

inheritance right. Id.

The specific-performance theory of equitable adoption has been similarly criticized

as it “diverts the inquiry from discerning to whom the decedent would have wanted to

distribute [their] property to examining whether a contract was formed.” Id. Additional

problems arise when identifying the parties to that contract and the requisite consideration.

Logically, a minor child lacks capacity to enter into an enforceable contract to be adopted.

It follows that the child must instead be a third-party beneficiary of a contract between

others, presumably the adoptive parent and the natural parent or legal guardian of the child.

But this contradicts the requirement by courts using this theory that the child give “filial

affection, devotion, association[,] and obedience to the [adoptive parent] during the latter’s

lifetime[,]” to satisfy the consideration element. In re Lamfrom’s Estate, 368 P.2d 318, 321

(Ariz. 1962). If the child was a third-party beneficiary to the adoption contract, no

performance or consideration would be required from them. See WM. T. Burnett Holding

LLC v. Berg Bros. Co., 235 Md. App. 204, 212–13 (2017). Thus, we find the doctrine of

equitable adoption is not well-suited to the logic of specific performance. 8

8
Illinois recognizes a cause of action, which it calls a “contract-to-adopt” theory, as
separate and distinct from the doctrine of equitable adoption. See DeHart, 986 N.E.2d at
98–101. It is functionally identical to the specific-performance theory except that it clarifies
that the child is a third-party beneficiary to the contract and, as such, not obligated to
perform or provide consideration to be entitled to seek specific performance of the contract
for succession purposes. Id. at 100.
21
In Browning, our Supreme Court observed that any distinction between equitable

estoppel and specific performance is meaningless because “[t]he courts under either theory

focus upon the equities involved and require ‘clear and convincing evidence’ of the

adoption contract.” 333 Md. at 288 (citation omitted). As just discussed, however, requiring

a contract to adopt presents an analytical quandary.

We note that several courts have discussed the uncertain and confusing rationale for

equitable adoption, and some have changed their rationale over time. For example, in

Texas, early cases focused on representations and detrimental reliance—the classic

elements for equitable estoppel. See, e.g., Cubley, 73 S.W.2d at 79–80. Later, a contract

requirement was added, which makes the rationale look more like specific performance. A

later court noted that the addition of a contract requirement seems antithetical to an estoppel

theory because, traditionally, “[t]he representations need not rise to the dignity of a

contract.” Adler v. Moran, 549 S.W.2d 760, 762 n.2 (Tex. Civ. App. 1977), rev’d on other

grounds sub nom. 570 S.W.2d 883 (Tex. 1978). The court questioned why a contract was

required for a theory resting on estoppel, recognizing that this—seemingly arbitrary—

requirement precluded relief in otherwise clear cases of equitable adoption—e.g., “where

the representation was to the effect that the child is the natural child of the adoptive parent.”

Id.

That leaves the fairness rationale, with focus on the decedent’s intent and all other

relevant circumstances, supported by evidence of facts demonstrating that the

stepchild-parent relationship was treated as a de facto parent-child relationship. In our

view, the underpinnings of this rationale can be found in our Supreme Court’s earlier

22
decisions in Clayton and Besche. There, the Court placed a clear emphasis on assessing

and furthering the decedent’s intent—i.e., the decedent’s equitable interest along with other

circumstances. See Besche, 190 Md at 150; Clayton, 130 Md. at 33. The rationale can also

be inferred from the Court’s holding in McGarvey. If the Court viewed the equitable

interest as lying in the child’s inheritance right, it presumably would have furthered that

interest by subjecting the child to the tax rate for lineal descendants rather than collateral

ones. The Court’s contrary decision suggests, instead, that the equitable interest is in

ensuring that the decedent’s property went to whom the decedent would have wanted. The

decedent had no interest in the rate at which that property might be taxed.

We find nothing inconsistent in the Court’s decision in Browning in which the Court

limited application of equitable adoption to the parent-child relationship. Clearly, the

doctrine has been applied sparingly and for good reason. The more attenuated the familial

relationship, the less likely it is an intestate decedent would have included an equitable

relative in a will had the decedent executed one. That reasoning is mirrored in the intestacy

statute’s hierarchy of succession. “[I]n an area of law where consistent, bright-line rules

are greatly needed[,]” Ford, 82 P.3d at 753 (cleaned up), confining the doctrine’s reach

merely frees future courts from the burden of delving into whether an equitably adopted

child was close enough with a deceased, intestate extended-equitable-family member for

the court to infer that the decedent would have intended to leave the decedent’s estate to

the child.

The conclusions we express are limited to the issue of intestate inheritance, the issue

before us. We conclude that if a person seeks to establish that they are an intestate

23
decedent’s equitable child and heir, the person must prove that they and the decedent,

objectively and subjectively, intended to and did live as child and parent. We stress from

the outset that it is insufficient merely to prove that a close familial relationship existed

between the decedent and the putative child.

Rather, a putative child claiming equitable adoption must prove that the decedent

intended to treat them as the decedent’s own child and that the child was “functionally,” as

the District of Columbia Court of Appeals put it, the decedent’s child. See North Ford, 200

A.3d at 1214. The intent element is not necessarily an intent to statutorily adopt. Rather,

the intent is that the child be regarded and treated the same as a natural or legally adopted

child. In the context of intestate succession, this intent may be proved by the totality of the

circumstances, including evidence that the decedent represented to both the child and the

world that the child was the decedent’s child and by evidence demonstrating that intent.

As noted above, it is not essential to prove the existence of an express contract or

agreement to adopt although such evidence is relevant. Moreover, evidence of an intent to

devise is different from an intent to treat a child the same as an adopted child and, standing

alone, cannot prove equitable adoption. In other words, equitable adoption is not

tantamount to equitable inheritance or equitable estate planning. On the surface, this may

appear to clash with our statement that the purpose of the intestacy statute is to “make such

a will for an intestate as he would have been most likely to make for himself[.]” Barron,

225 Md. at 234–35. But the statute rests on the presumption that, absent a living spouse,

an intestate decedent would most likely have left the estate to the decedent’s natural or

legally adopted children had the decedent died testate. Thus, it is reasonable to require

24
proof that a decedent intended a putative child to be treated as the decedent’s natural or

legally adopted child and that they, in fact, treated the child as such before declaring the

child an heir.

This approach recognizes that the relationship between a stepchild and a stepparent

may vary greatly from family to family. A stepchild may live with a stepparent from

infancy to majority and beyond and be treated as a child for all purposes. In our view, there

is every bit as much equitable justification for finding an equitable adoption in this type of

case as there is in a case with an unconsummated adoption contract as required by some

courts. To not recognize an equitable adoption in such cases would be manifestly unjust

and contrary to the decedent’s clear intent to treat and continuously hold out the putative

child as the decedent’s natural or legally adopted child.

On the other hand, a stepchild might not live with a stepparent and/or may have no

meaningful relationship with a stepparent, especially when the stepparent enters the child’s

life when the child is an adult. As an equitable remedy, to accommodate these variations,

the doctrine of equitable adoption must be flexible enough to permit a “right result” on the

facts of each case while providing as much guidance as reasonably possible. It is often

impossible or inadvisable to attempt to fashion too fine a standard, and this is especially

true in the context of equitable relief where the principles need to be pliable enough to

permit an equitable result on the facts. After all, the result is to depart from the strict letter

of the law in order to achieve equity.

Courts in other jurisdictions have set forth various criteria to be considered. See,

e.g., North Ford, 200 A.3d at 1215; Wheeling Dollar, 250 S.E.2d at 373–74. Some or all

25
of those criteria may be relevant in a particular case. In determining the intent of the

decedent and assessing whether the decedent and putative child functioned as a parent and

natural or adopted child would function, the court should consider all relevant

circumstances related to the relationship between the decedent and the putative child,

including but not limited to:

• Whether the decedent cared for the putative child and took charge of the child’s

health, education, and general welfare until the child reached the age of majority,

as a parent would;

• Whether the decedent expressly agreed or promised to adopt the putative child

but failed to do so;

• Whether the decedent made an invalid or unconsummated attempt to adopt the

putative child;

• Whether the putative child was incorporated into the decedent’s broader family;

• Whether the decedent gave the putative child the decedent’s surname;

• Whether the decedent represented to others in the community that the decedent

was a parent to the putative child;

• Whether the putative child continued to maintain a relationship with the child’s

biological family and, if so, if that relationship conflicted with the decedent

assuming the role of parent to the putative child;

26
• Whether the natural parent or guardian expressly or implicitly consented to the

relationship, the effect of which could affect the child’s right to inherit from the

natural parent under Maryland’s intestacy laws; 9 and

• Any other act or statement directly showing that the decedent intended the child

to be, or to be treated as, a natural or legally adopted child and facts

demonstrating how the relationship functioned.

Consistent with courts in other jurisdictions, the standard discussed herein is a high

bar—one that we anticipate will rarely be cleared. As noted above, a putative child must

prove an equitable adoption claim by clear and convincing evidence.

IV. Conclusion

Procedurally, in this case, the orphans’ court denied, without prejudice, appellants’

petition for summary judgment. That petition was supported by Ms. Ellis’s answers to

interrogatories. Ms. Ellis opposed the petition, supported by an affidavit and other exhibits.

In addition, the orphans’ court granted Ms. Ellis’s petition to transmit issues for trial by

jury. Appellants filed an opposition, supported by answers to interrogatories.

The record reflects that, beginning with Ms. Schappell’s marriage to the decedent,

the decedent was a father figure in Ms. Ellis’s life. He referred to Ms. Ellis as his daughter.

“On numerous occasions, [he] stated his intent to leave all of his assets to [Ms. Ellis].” He

9
See ET § 1-207(a) (“[O]n adoption a child may not be considered a child of either
natural parent” except that “[o]n adoption by the spouse of a natural parent, the child shall
still be considered the child of that natural parent.”).
27
also stated his intent to have his “estate planning documents drafted to that effect[.]” And

he named Ms. Ellis as the beneficiary on his only life insurance policy.

The record also reflects, however, that in her answers to interrogatories, Ms. Ellis

conceded that she was “unaware of any communication in which [the decedent] evidenced

any intention, desire, or promise to adopt her.” She does not contend that he would have

done so “but for a legal barrier.” There is no evidence that the decedent took any steps in

furtherance of estate planning other than naming Ms. Ellis on his life insurance policy.

Ms. Ellis did not move into the decedent’s home until a decade after his marriage to

Ms. Schappell, and even then, the home was not “permanent” as Ms. Ellis split time living

with the Schappells and her natural father. The record reflects that Mr. Klenk is alive. There

is no indication as to whether he is aware of this proceeding or has taken any position with

respect to it.

Regardless of whether the orphans’ court could have granted appellants’ summary

judgment motion, the orphans’ court did not commit reversible error in denying it. See

Metro. Mortg. Fund, Inc. v. Basiliko, 288 Md. 25, 28 (1980) (“[W]hereas a court cannot

draw upon any discretionary power to grant summary judgment, it, ordinarily, does possess

discretion to refuse to pass upon, as well as discretion affirmatively to deny, a summary

judgment request in favor of a full hearing on the merits; and this discretion exists even

though the technical requirements for the entry of such a judgment have been met.”

(cleaned up)). Although this proceeding is governed by Title 6 of the Maryland Rules, we

see no reason why the orphans’ court should be treated differently from the circuit court

with respect to the above discretion. Ms. Ellis’s answers to interrogatories identified

28
several potential witnesses who could testify as to the nature of the relationship between

her and the decedent. It may be that there is relevant evidence in addition to that which was

presented on motion. The orphans’ court is allowed to develop a full record.

With respect to the transferability of issues, we conclude that the doctrine of

equitable adoption is a mixed question of law and fact because it “involve[s] the application

of law to fact[.]” Furda v. State, 193 Md. App. 371, 409 (2010) (cleaned up). A mixed

question may be transmitted to a circuit court. See Kao v. Hsia, 309 Md. 366, 378 (1987).

On the current record, issue 7 is the only issue that can be transmitted. It is the ultimate

question that is determined by applying the facts to applicable principles and is thus a

mixed question of law and fact. The first 6 issues are factual in nature and may be

considered by a court, along with other considerations, in reaching its determination.

Nevertheless, the first-level facts are not in dispute. It is a question of applying them to

reach a conclusion. Consequently, we cannot affirm the order transferring issues to the

circuit court. We vacate that order.

On remand, the orphans’ court, if requested by a party, may transfer issue 7 to the

circuit court. If the matter is not transferred, the orphans’ court may proceed to determine

the issues before it. If the orphans’ court does not transfer the issue, and proceeds to an

evidentiary hearing, disputes as to first-level facts may develop.

One other observation is in order. The order transferring issues ordered the issues

to be tried by a jury. Equitable relief, at least ordinarily, is not triable by jury. Mattingly v.

Mattingly, 92 Md. App. 248, 255 (1992). Issue 7 presents the ultimate issue and, if

transferred, it is not subject to trial by jury. Currently, as noted above, first-level facts are

29
not in dispute. The parties have not briefed the question of right to a jury trial. If a factual

dispute arises and the orphans’ court again grants a motion to transfer, we express no

opinion on whether any fact issues are triable by a jury as distinguished from a judge.

ORDER TRANSFERRING ISSUES
TO CIRCUIT COURT BY THE
ORPHANS’ COURT FOR
MONTGOMERY VACATED. CASE
REMANDED TO THE ORPHANS’
COURT FOR FURTHER
PROCEEDINGS CONSISTENT
WITH THIS OPINION. COSTS TO
BE PAID ONE-HALF BY
APPELLANTS AND ONE-HALF BY
APPELLEE.

30