be reduced or destroyed, must be clearly made out.

As to the measure of proof necessary to establish an oral contract of adoption, the court said, in Daniels v. Butler (1914) 169 Iowa, 65, 149 N. W. 265: "Some of the cases say that the terms and character of such a contract must be established by evidence so clear and forcible as to leave no reasonable doubt in the mind of the chancellor. We apprehend this does not mean to be beyond all reasonable doubt, as in a criminal case. A mere preponderance of the evidence is not enough, but it must be so clear and satisfactory as to convince the mind. As some of the cases put it under similar circumstances, where one of the parties is dead and unable to give his version of the matter, and the heirs are necessarily limited to collateral facts and circumstances and to matters affecting the credibility of the witnesses, we are not compelled to believe a witness, simply because he testifies to the contract, but such testimony, often given by interested witnesses, should be closely scanned, and must be tested by its own inherent probability or improbability, and by ordinary rules of human conduct under similar circumstances."

In Parks v. Burney (1919) 103 Neb. 572, 173 N. W. 478, the court said that, if there is but one witness to the terms of the contract, the circumstances of entering into the contract must be entirely consistent with its existence as testified to by this witness.

Declarations of intention as to the disposal of property in behalf of one living as the child of the declarant are to be received with great care, and, where not supported by other evidence, are generally entitled to but little weight. Kinney v. Murray (1902) 170 Mo. 674, 71 S. W. 197.

However, in Lee v. Bermingham (1916) 199 Ill. App. 497, in sustaining the action of the trial court in refusing to instruct the jury that an oral contract of adoption must be established by direct and positive evidence, the court said that proof of the agreement by a preponderance of

the evidence satisfied all legal requirements.

As to the necessity of direct evidence to establish a contract to adopt. in Roberts v. Roberts (1915) 138 C. C. A. 102, 223 Fed. 775, certiorari denied in (1915) 239 U. S. 639, 60 L. ed. 481, 36 Sup. Ct. Rep. 160, the court said: "The argument by which we are asked to reverse the decree is that there was no direct and clear evidence of an agreement to adopt at the time Myra J. Roberts was received into the family of Charles J. Roberts. There is good reason why such evidence is wanting. All of the parties to the transaction are dead, and Myra J. Roberts was herself a babe at the time of the adoption. It seems to us that in such a case it is not necessary that the court first have direct proof of the making of the contract, and then proceed forward from the contract thus established to the conduct evidencing its existence. We think it is possible to reverse that process, and if the statements and conduct of the adopting parents are such as to furnish clear and satisfactory proof that an agreement of adoption must have existed, then the agreement may be found as an inference from that evidence."

The contract of adoption may be established by the acts, conduct, and statements of the parties, direct proof not being essential. Kay v. Nichaus (1923) Mo. 249 S. W. 625.

but it is said that it was established by clear convincing, and unequivocal evidence.

In Prince v. Prince (1915) 194 Ala. 455, 69 So. 906, the court said: “Looking to the adoption paper filed by the decedent, it appears that his purpose was to make complainant capable of inheriting his estate. His conduct and declarations thereafter for thirty years uniformly show that he regarded complainant as his son, and intended that he should be his heir, and he died without making any testamentary or other disposition of his estate that would defeat his own purpose and the expectations of his supposed son. Their relations were always affectionate, and their conduct mutually dutiful. The decedent was childless, a circumstance which gave peculiar emphasis to his plans and illuminated his declared intentions. We are of the opinion that the evidence fairly supports, by just implications, the allegation of the bill that it was agreed between the complainant's mother and the decedent that complainant should inherit the latter's estate at his death."

Upon this point in Baker v. Payne (1917) Mo. App. 198 S. W. 75, the court said: "That plaintiff became a member of the Payne family from a child to manhood is not and cannot be denied. The only point of dispute is the agreement to adopt. And defendants rely upon the cautionary requirements of the law to discredit, or at least to weaken, the evidence in the plaintiff's behalf to such a degree as to destroy his case. The law requires that contracts for adoption be made by deed, .. . though if the contract be oral, and wholly performed by the child, it may be enforced... But on account of the momentous consequences which result from allowing oral evidence to create an heir to a man's property, the courts in this state have uniformly set a guard over uncertain memory and protection against wilful falsehood, by requiring the proof to be cogent and overwhelming, without substantial grounds for reasonable doubt.

In the exercise of this care,

it is far easier to discover and guard against perjury than it is to ascertain when and where memory is at fault. It is true that it is often impossible, after lapse of years, to separate actual facts from new conceptions of what is honestly thought to be the fact. Fortunately, the evidence in this case is of such character and comes from such sources as to relieve us of anxiety as to the good faith of the witnesses. They are people of good standing and reputation for intelligence and veracity. We have no fears of being beguiled by perjury or misled by the self-interest of those who have been called to testify."

In Anderson v. Anderson (1907) 75 Kan. 117, 9 L.R.A. (N.S.) 229, 88 Pac. 743, in considering the question as to the sufficiency of the evidence to establish a contract of this kind, the court said: "With respect to the character of evidence necessary in cases of this kind to warrant a court in decreeing specific performance, the rule is that the agreement should be clearly and definitely established. We are satisfied with the language of the court in Edson v. Parsons (1898) 155 N. Y. 555, 50 N. E. 265, as follows: 'But equally would it be the duty of a court of equity to refuse that relief where the agreement sought to be given effect was not certain and definite. Clearly, it should hesitate to assume the grave responsibility of implying an agreement whose existence depends upon circumstances inconclusive in their nature and permitting an inference either way. It is not essential to the intervention of equity, in order to prevent the accomplishment of fraud, that an agreement should be established by direct evidence. It may be established from such facts and circumstances as will raise an implication that it was made; and may have re-enforcement from the evidence of the conduct of the parties at the time and subsequently.' The proof was sufficient to justify the court in making the findings of fact. While but one witness testified to the contents of the correspondence which made up the contract, the fact that a contract existed, and its terms as

found by the court, are supported and re-enforced by the conduct of all the parties."

In Pemberton v. Pemberton (1906) 76 Neb. 669, 107 N. W. 996, specific performance was decreed where the evidence of the contract to adopt a child and make him the heir of the adoptive parent was general statements by the adoptive parent to the effect that he wanted the adopted son to receive a son's share of his property, he dying intestate, and the fact that this son had previously been adopted in a regular proceeding by other persons, who released him to the decedent, and he at that time scratched out the names of the original adoptive parents and inserted his own and his wife's in their place.

In Baker v. Payne (1917) Mo. App., 198 S. W. 75, an oral contract of adoption was held to be established, although entered into about thirty-six years prior to the time of the trial. The evidence to establish it consisted largely of statements frequently made by the adoptive parent to the effect that plaintiff was his own son, and that he expected him to inherit his property. There were also letters by the adoptive parent, referring to the child as his boy.

In Parks v. Burney (1919) 103 Neb. 572, 173 N. W. 478, an oral contract to take a child and raise him as the promisor's own, and give him a child's share of his property, was sustained where evidence of the contract was testified to by two witnesses, who claimed to have direct knowledge thereof, and one of them was disinterested. Upon the point of the sufficiency of the evidence, the court said: "When this boy was taken into the Smith family, the family consisted of Smith and his wife. They had no children, and never had any children, of their own. The defendants are the brothers and sisters of Smith and the children of deceased brothers and sisters. The plaintiff's mother and Mrs. Smith testified as to the arrangements when the boy was taken into the family. There is no other direct evidence as to the understanding of the parties at the time. Their evidence is that the

Smith family had heard of this boy, and that his mother was a widow with other children, and they wrote a letter to his mother requesting an interview and to see the boy. In answer to this letter, the mother took the boy to the Smith home, and the arrangements were made. Mr. and Mrs. Smith agreed that they would treat the boy as their own son, and that if he remained with them as their son he would have a child's share in the property.' It is seriously contended that this evidence as to what he should have is too indefinite to amount to a contract. It is urged that a child has no share in his parents' property if the parents see fit to dispose of the property otherwise, and that if Smith and his wife were then young people, it is very indefinite and uncertain as to what any particular child's share would be if there should be other children. If, however we apply the rule of construing this contract as the parties themselves then evidently understood it, and intended, these objections are not well taken. If the agreement to reat this boy as their son and give him a child's share of the property would not prevent the Smith's from disposing of their property, or a part thereof, to others by will, it, at least, was equivalent to a contract to make him an heir, and, as such, he would inherit with other heirs, if any, such property as Smith owned, undisposed of, at his death."

In Roberts v. Roberts (1915) 138 C. C. A. 102, 223 Fed. 775, certiorari denied in (1915) 239 U. S. 639, 60 L. ed. 481, 36 Sup. Ct. Rep. 160, the court said: "We are satisfied from the evidence that Charles J. Roberts was the father of plaintiff. This, together with the conceded fact of his childless married life, gave to him a natural motive, and imposed upon him a moral duty to plaintiff and her mother, to make plaintiff his child in law as she was in nature. These two facts enter into all of plaintiff's evidence, giving to it reasonableness and probative force. The record at the time the plaintiff was taken by Mr. and Mrs. Roberts states: 'Infant indentured to C. J. Roberts.' Upon receiving plain

tiff into his family, Mr. Roberts not only gave to her his own name, but the name of his mother. Her foster parents stated repeatedly, both orally and in writing, that they had adopted plaintiff as their child. They treated her as their child.

She was baptized in their name. Not until she was a woman grown was she ever permitted to know that Mr. and Mrs. Roberts were not her natural parents. She was then told the facts by her foster mother upon her deathbead, and her conduct at the time shows how completely she had become identified with her foster parents."

c. Cases illustrative of evidence deemed insufficient.

In Heath v. Cuppel (1916) 163 Wis. 62, 157 N. W. 527, the court refused specifically to enforce an alleged written adoption contract claimed to have been lost, where the principal evidence to establish it was a letter by one of the parties to the person with whom the child was living, stating that the child's mother would call for him and bring him to the home of the writer, who would adopt him as his son. In this case the relation between the alleged adoptive father and his alleged adoptive son were not always harmonious, and while the son lived with his adoptive father to some extent, he once or twice left the home. The court said: The evidence "tending to show that the deceased regarded the plaintiff as an adopted son is meager and unconvincing [in this case]. treatment of [the child] during his minority, and providing for him as he did, is more in harmony with the treatment that a stepfather, under like circumstances, bestows on a stepson. These conditions also refute the contention that the court erred in not finding an express contract of adoption, as plaintiff claims."

In Hanly v. Hanly (1905) 105 App. Div. 335, 93 N. Y. Supp. 864, a contract to take a child into the home of the promisor and, at his death, give the child all his property, was held not to be established by the testimony of two interested witnesses as to the substance of conversations with

the deceased some years prior thereto, there being circumstances indicating the improbability of such an agreement, although it was admitted that the promisor had agreed to take the child and treat it as his own.

Casual statements or declarations by a stepfather to third persons, in effect, that he would give or leave his entire property to a stepson whom he had brought up, and that he intended the boy should have all of his property at his death, without further designation as to how the property would be conveyed to the son, were held in Haubrich v. Haubrich (1912) 118 Minn. 394, 136 N. W. 1025, to be insufficient to establish the existence of a contract to the effect that if the boy should continue to live with the promisor, and care for him as a son would for a father, the latter would, in consideration thereof, at his death, leave the boy all of his property, it appearing that the boy had been away from home at times as long as a year, and had made statements inconsistent with the theory of a contract, and had received a considerable sum of money from his stepfather.

In Rahn v. Hamilton (1916) 144 Ga. 644, 87 S. E. 1061, the evidence was held not sufficient to make out a case for equitable aid in behalf of an alleged adopted child, the nephew of the alleged foster father, who, it was claimed, promised the mother that he would be a father to the child, and that there would be plenty left behind for him.

In Pantel v. Bower (1919) 104 Kan. 18, 178 Pac. 241, the court refused specifically to enforce a contract by which the promisor, agreed to adopt a two-year-old child and to give her such property as she would receive as a natural child, on the ground that this agreement was not sufficiently shown, although it appeared that the child lived with the adoptive parents until after the death of the father, and performed much outdoor labor which was a profit to the adoptive parents, and which aided in their financial advantage. The court said that a parent may disinherit his own child, and evidence tending to show that the

child had rendered valuable services to the parents is not sufficient to raise implication of a contract not to disinherit. That if the father by adoption had desired to carry into effect the intention, expressed in his lifetime, that the child should receive a share of his property, there were very easy methods by which to accomplish such intent. He could have made a will in her favor, or he could have taken the necessary steps for the legal adoption of the plaintiff as his own child, and then, upon his death, she would have acquired a child's portion of his estate. In this case the adoptive father was survived only by his widow, and she died intestate.

Specific performance of a contract to adopt was denied in Teats v. Flanders (1893) 118 Mo. 660, 24 S. W. 126, although it had been performed upon the part of the adopted child, where evidence to establish the contract merely was to the effect that the alleged adoptive parent made some casual remarks from time to time to some of her acquaintances, to the effect that she was going to give her property to the alleged adopted child. They were not made to plaintiff and were without consideration. In so holding the court said that the burden was on the plaintiff to establish the agreement by evidence that was cogent, clear, convincing, and in this he had failed.

In Cain v. Dowling (1921) 105 Neb. 741, 181 N. W. 930, it was held that an alleged oral contract for adoption was not sufficiently definite, and substancial performance thereof was not sufficiently proven to entitle the alleged adopted child to secure specific performance. The court said: "The making of the contract is not proved with definiteness and certainty, and, if made, plaintiff has not shown such performance on his part as would justify a court of equity in decreeing its specific performance. Indeed, a preponderance of the evidence shows that, however faithful and industrious plaintiff may have been as a small boy, when he reached the age of seventeen or eighteen years, he absolved himself from all responsibility to his

uncle, and started out in the world, a free agent, to do for himself."

In Phillip's Estate (1901) 17 Pa. Super. Ct. 103, it is held that the fact that the adopted parent, in his will, referred to the adopted daughter as his adopted daughter, did not, in and of itself, establish the fact of adoption.

In Townsend v. Perry (1917) 177 App. Div. 415, 164 N. Y. Supp. 441, affirmed in (1920) 228 N. Y. 519, 126 N. E. 923, specific performance of an alleged written agreement to adopt the plaintiff and make him the heir of the adoptive parent was denied on the ground that the authenticity of the contract was not specifically established.

In Townsend v. Perry (1911) 146 App. Div. 225, 130 N. Y. Supp. 951, specific performance of a contract in writing to take a child as the child of the promisors, give him a good education, and at the death of the promisors to give him all their property, providing they had no children of their own, and if they did have children that he should share equally with them, was denied, on the ground that the authenticity of this contract was not sufficiently established.

In Re Lind (1916) 90 Wash. 10, 155 Pac. 159, the court refused to establish the right of the petitioner as an only child of the deceased, where based upon evidence as to the existence of some written instrument referred to in the adoption paper, the existence of which was not clearly established, and it did not clearly appear whether the paper was a mere agreement to adopt or a relinquishment by the natural father of the child of his parental control to the deceased and her husband.

The evidence to show a contract to adopt was held insufficient in Mould v. Rohm (1916) 274 Ill. 547, 113 N. E. 991, although the adopted child lived with the adoptive parent from the time that she was a small child, up to the time that she was married, and also subsequently thereto for a considerable period of time, and the relation between herself and the adoptive parent was always of the most affec