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tionate character, and it appeared that said that such an agreement, executed
the adoptive parent took an interest in at that time in the respondent's life,
the child and her affairs, and treated could have served but one purpose, and
her with the utmost kindness and con- that was to establish beyond all ques-
sideration, and had expressed her in- tion the child's status of an adopted
tention of providing for the child in child and prospective heir, and to make
her will. The evidence of adoption, certain that she would thereafter re-
however, was based upon an alleged main with them.
lost contract, and the court said: In Dillmann v. Davison (1922)
“There is not only grave doubt as to Mo. —, 239 S. W. 505, the court said
the existence of the contract relied that an agreement in writing to adopt
on, but the proof of its terms and a child and make him one of the heirs
provisions is of a most unsatisfactory of the adoptive parent was clearly evi-
character. It rests entirely upon the dentiary of a previous parol agreement
memory of two witnesses, neither of to adopt the child.
whom was interested in it, or had any In Quinn v. Quinn (1894) 5 S. D.
occasion to remember its terms or pro- 328, 49 Am. St. Rep. 875, 58 N. W.
visions, and who made a casual ex- 808, the adoption proceedings were
amination of it some six years before, apparently regular and valid, but, as
and at a time and under such circum- an inducement to the consent of the
stances that they had no reason what- parent of the child to the adoption,
ever for fixing any of its terms or the adoptive parent agreed that the
provisions in their minds."

child should be an heir to such por-
In Merchant v. White (1902) 77 App. tion of his property as a natural child
Div. 539, 79 N. Y. Supp. 1, it was held would be entitled to, and this oral
that an oral contract to adopt a child agreement was enforced by the court,
and make her the heir of the adoptive where the adoptive parent in his life-
parent must be established by a pre- time undertook to avoid the obligation
ponderance of the evidence, and, the thus created by disposing of the prop-
trial court having found against the erty to others.
authenticity of the contract, a revers- But it has been held that the mere
al of this finding was not warranted attempted adoption of, or agreement
by the evidence.

to adopt, an infant as a child of the

adopting parents, even though the d. Mere ineffectual adoptive proceeding

term is used that such infant shall beas evidence of contract.

come the heir of the adopting parSee supra, II. a.

ents, does not raise any contract in In Young v. McClannahan (1919)

favor of the child, binding the par187 Iowa, 1184, 175 N. W. 26, in a

ents to make it their heir. Corison v. suit for partition, the cross petitioner

Williams (1922) Cal. App. —, 208 claimed the real estate involved as

Pac. 331. The court said that it was the foster child of the deceased owner,

plain that the adoptive parents, “in and, the adoption proceedings having

using the term 'ligitimate heirs, in the been defective, the court held that

petition for adoption, intended only they were sufficient to constitute a

to put [the child) in the same place contract of adoption, which was en

in their family which a child of their forced in behalf of the foster child.

blood would have occupied, or, as we So, in Kerr v. Smiley (1922) Mo.

have already said, they were merely 239 S. W. 501, the court sustained

employing the petition for the pura contract for adoption established

pose directed by the law; that is, to almost entirely by proof of a formal

show that [the child] was to be adoption, invalid because not recorded

adopted, and treated in all respects as in the proper county, although the

[their] own lawful child should be adoption proceeding was had after the

treated.'' adopted child became of age, and The fact that a good-faith attempt she had lived with her adoptive par- was made to adopt a child by deed or ents since a small child. The court contract will not induce the court to


enforce the contract as one to adopt, making an express agreement to that where there is no statutory provision effect, but it is held that the mere in the state for the adoption of a formal adoption of a child with the inchild, so as to make the child an heir tention that she should be treated as at law of the adoptive parent. Wall his own, and that she should have a v. McEnnery (1919) 105 Wash. 445, child's interest in his estate, does not 178 Pac. 631. The court said: "To constitute an agreement which will hold that a contract to adopt would have the binding force to impair the give a right of inheritance, in the ab- adoptive parent's right of testamensence of a statute permitting such re- tary disposition of his estate. Follation, would be to hold that that lowed in Masterson v. Harris (1915) could be done indirectly which could Tex. Civ. App. 179 S. W. 284. not be done directly. If there can be In Renz v. Drury (1896) 57 Kan. no adoption by contract, it follows that 84, 45 Pac. 71, in a proceeding to equity cannot enforce an agreement quiet title between the widow of the to adopt; for the subject-matter of adoptive father and the adopted child, the contract had no countenance in it not appearing that the statute relaw at the time the writing was en- lating to adoption had been complied tered into. Equity will take juris- with, it was held that the adopted child diction to do justice in all those could sustain no claim to the right of things whereof the law, by reason ownership to, or inheritance of, the

its universality, is deficient property of the parent, based upon and it will give a remedy for any alleged parol adoption, although every wrong; but it will not create a the child had fully performed upon legal right in the absence of legisla- her part. tion or some sustaining principle of In Jordan v. Abney (1904) 97 Tex. the common law. Equity is essentially. 296, 78 S. W. 486, the rule is stated and thoroughly remedial, and it will that a mere contract to adopt, followed never extend its hand to defeat the by the assumption and performance policy of the law. The policy of the of the duties of parent and child, and law may be declared by legisla- the execution of adoption papers not tive enactment, or, if the common law filed for record, does not comply with be certain, by the want of legislative the statute regulating adoption, and enactment; the adoption of children does not establish the right of inherbeing in derogation of common law, itance thereby provided as a conseand there being no statutory method quence of lawful adoption. This right provided by the legislature at the time arises by operation of law from the the contract is said to have been en- acts of the parties done in compliance tered into, it logically follows that with the statute, and does not dethere can be no adoption from which pend on or arise from contract. a right of inheritance would flow un- In Albring v. Ward (1904) 137 Mich. less it is accomplished by or through 352, 100 N. W. 609, where the adopsome method recognized by law-either tion proceedings were based upon an under a general law, or by special act unconstitutional statute, and the child of the lawmaking power. The mere lived with the adoptive parent from living of a child with those who have the time that she was a small child assumed a care and custody over its until the time she arrived at the age person will not make an adoption, al- of seventeen years, when she marthough the child may believe that it ried, it was held that no implied conhas been adopted, and such belief may tract arose that she should be an heir be sustained by family tradition or to the property of her adoptive parby neighborhood gossip."

ent, based merely upon the adoption In Masterson v. Harris (1915) 107 proceedings. The court, in undertakTex. 73, 174 S. W. 570, it is recognized ing to distinguish this case from the that a person may bind himself to Wright Case (Mich.) (cited supra, II. make a testamentary disposition in a), said: “Complainant when a mere favor of a child he is adopting, by child knew who her real father was. She had rendered no service in the In Dorsett v. Vought (1916) 89 N. belief that she was the real daughter J. L. 303, 98 Atl. 248, where the quesof Mr. Ward, or that she would be tion was raised in a proceeding for an heir to his property. About as the construction of a will devising the soon as she was old enough to render life estate of the testator's property to Mr. and Mrs. Ward any valuable to his wife, but making no disposition service, she was married, and soon of the remainder, it was held that the after left them. Some witnesses fact that a child was referred to in testified to statements made by Mr. the will as the testator's adopted and Mrs. Ward, in which they spoke daughter did not confer upon her or of her as their daughter, and that she her heirs the right of inheritance. called them father and mother. Such The court said: “There is no constatements are consistent with the tention made that Ida Vought was theory of supposed legal adoption. formally and legally adopted by the They are not evidence of a contract to testator as his daughter, and, this bemake her an heir, or to convey her ing so, the allusion to her by the testaany property. If there were any evi- tor as his adopted daughter cannot dence of a legal contract on the part be held to confer upon her a legal of Mr. Ward to make complainant his status which the law recognizes only heir, such statements might be of some after the adoption to that end, in solvalue in proof of the contract. But, emn form of certain prescribed statuas already stated, the proceedings for tory requisites." adoption afford the sole basis for any In Durkee v. Durkee (1886) 59 Vt. claim to such a contract, and they are 70, 8 Atl. 490, it was held that no valueless for that purpose.”

contract to adopt was proven, and In Bowins v. English (1904) 138 hence there could be no decree for Mich. 178, 101 N. W. 204, the court specific performance,

specific performance, notwithstandsaid: “We held in Albring v. Ward ing the child was reared by the fos(Mich.) supra, that heirship, except ter parents under the belief that he that based upon consanguinity, can was legally adopted, and performed be created only by a constitutional for them labor of considerable value, law. If excuted articles of adoption and the foster parents procured an under a void law are not a sufficient act of the legislature changing the basis to make one a legal heir and to name of the child to that of his fosconstitute an agreement to convey ter parents, and adopting and making land, certainly an agreement to adopt, him their heir at law, the same to be and to take steps, if necessary, to effectual when the foster parents secure such adoption, cannot be made signed and filed their consent thereto, the basis of an agreement to convey which they failed to do. land, and cannot be held to be suffi- It has been held that no implied concient to take the place of adoption tract to leave real estate to an adopted under a constitutional law."

child arises from a legal adoption, In Carroll's Estate (1908) 219 Pa. which will entitle the child to inherit 440, 123 Am. St. Rep. 673, 68 Atl. 1038, real estate situated in another state the court refused to find that there the statutes of which exclude from was any parol contract by the wife of inheritance the children adopted unthe adoptive father to adopt the child, der the laws of this state, for the reaalthough there were valid adoption son that the parties must be presumed proceedings by which the husband to have accomplished all they intended adopted the child.

to accomplish, i. e., the adoption; and In Evans's Estate (1911) 47 Pa. if they are mistaken as to the legal Super. Ct. 196, an instrument in writ

consequences of the act, it is a mising by which parties agreed to adopt, take of law against which equity will receive, care for, and pay all doctor not grant relief. Hood v. McGehee bills of, a small child, was held not (1911) 189 Fed. 205, affirmed in (1912) to confer upon the child any rights 117 C. C. A. 664, 199 Fed. 989. of inheritance.

A. G. S.




ANNA BELLE TAGGART et al., Respts.

California Supreme Court (In Banc) - February 27, 1923.

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Estoppel — to contest claim of adoption.

1. The estate of one who takes a child into his family under a written contract to nurture, maintain, provide for, and educate her, according to his ability, is not, by the fact that he informed her and led her to believe that she was his adopted daughter, estopped to contest her rights in the estate because no legal adoption has ever been effected.

[See note on this question beginning on page 1365.] Adoption treating as done that adoption has been accomplished must

which ought to have been done. show that every essential require

2. In the absence of fraud, deceit, ment has been complied with. or mistake, the court will not, under the maxim that "equity will treat as

Adoption — establishment after death done that which ought to have been

absence of fraud. done,” treat as adopted a child which 5. Where by statute one adult canwas not in fact adopted, merely be- not be adopted by another, and the cause of an intention to adopt it, and

parent of a child who placed it in anstatements leading it to believe that

other's family for maintenance and adoption had been effected.

nurture without consenting to its - common-law rights.

adoption lived until it attained its 3. The adoption of one person by majority, no fraud or deceit exists another was unknown to the common

which will require the establishment law. [See 1 R. C. L. 593; 1 R. C. L. Supp.

of the status of adoption after the 209; 4 R. C. L. Supp. 42.]

death of the foster parent, merely beEvidence burden of proof


cause he led the child to believe that tion.

it had been adopted and treated it as 4. He that claims that an act of an adopted child.

APPEAL by petitioner from an order of the Superior Court for Los Angeles County (Rives, J.) denying a petition filed for distribution of the whole of decedent's estate to her as an adopted child. Afirmed.

The facts are stated in the opinion of the court.

Mr. James S. Bennett, for appel- Ga. 654, 44 L.R.A.(N.S.) 773, 78 S. E. lant:

30; Fisher_v. Davidson, 271 Mo. 195, The estate of decedent is estopped L.R.A.1917F, 692, 195 S. W. 1024. to deny the adoption of petitioner. Petitioner has sought her proper

Baumann v. Kusian, 164 Cal. 582, 44 remedy by application in the matter L.R.A.(N.S.) 756, 129 Pac. 986; Rog- of the estate of her alleged foster ers v. Schlotterback, 167 Cal. 37, 138 parent. Pac. 728; Re McCombs, 174 Cal. 211, Odenbreit v. Utheim, 131 Minn, 56, 162 Pac. 897; Steinberger v. Young, L.R.A.1916D, 421, 154 N. W. 741; Re 175 Cal. 81, 165 Pac. 432; Thomas v. Sharon, 179 Cal. 447, 177 Pac. 283. Maloney, 142 Mo. App. 193, 126 S. W. Messrs. Carnahan & Clark, for re522; Barney v. Hutchinson, 25 N. M. spondents: 82, 177 Pac, 890; Winnie v. Winnie, Under the law of California, before 166 N. Y. 263, 82 Am. St. Rep. 647, 59 a person who claims to be a child of N. E. 832; Crawford v. Wilson, 139 decedent by adoption can sustain a

(- Cal. 213 Pac. 504.) claim to the decedent's property as a Loretta Jordan died in the state of pretermitted heir, he must first show her residence in 1880. Thereafter, an actual adoption by showing that

and on the 11th day of July, 1881, every essential requirement of the

said Benjamin F. Jordan and statute of adoption has been complied with.

Francis S. Taggart and Minerva Re McCombs, 174 Cal. 214, 162 Pac.

Taggart, his wife, joined in the exe897; Re Sharon, 179 Cal. 447, 177 Pac.

cution of an agreement by the 283.

terms of which Benjamin F. Jordan An adult cannot be and never could committed to Francis S. Taggart be adopted under the laws of Illinois, and his wife, Minerva, the legal cusand cannot under the laws of Cali- tody and care of said child, Edna fornia.

Lucinda Jordan, who was the only Bartholow v. Davies, 276 Ill. 505, child of said Benjamin F. Jordan, 114 N. E. 1017.

and said Taggart and his wife The contract of July 11, 1881, if it be so construed as to provide for the

agreed with the father of said miadoption of appellant after her ma

nor that they would nurture, mainjority, lacked mutuality and cannot be tain, provide for and educate said enforced.

child, according to their ability, Baumann v. Kusian, 164 Cal. 582, 44 means, standing, and position in L.R.A.(N.S.) 756, 129 Pac. 986.

life. It was further provided that, Mr. James W. Hyde also for re- in the case of the death of said spondents.

Taggart's wife, the father, BenjaSeawell, J., delivered the opinion min F. Jordan, should have the of the court:

right to "retake and repossess to Petitioner, Edna Taggart Boland, himself," his said child upon reimsought to have distributed to her bursing said Francis S. Taggart for by the probate court of Los Angeles moneys expended by him for all reacounty the whole of decedent's es- sonable costs, charges, and expenses tate, inventoried at the sum of incurred in and for the care, cus$45,426, under the provisions of stody, maintenance, and education of 1307 of the Civil Code, claiming said said child, if he should, upon the estate as an adopted daughter and happening of this contingency, reonly heir at law of Francis S. Tag- take said mentioned child into his gart, deceased, who unintentionally custody and charge.

custody and charge. It was also omitted her in his will. The court further agreed that, in case of the decided adversely to petitioner, and death of Benjamin F. Jordan, the its decision is here for review. said Francis S.' Taggart and his

The court's findings are that wife, or the survivor of either, Francis S. Taggart died on the 3d would forthwith proceed according day of December, 1919, leaving a to the laws of the state of Illinois to will, which was duly admitted to adopt said child as their own, or, if probate.

Anna Belle Taggart, a one should be dead, as the child of sister of decedent, was made the the survivor.

the survivor. It is also a part of sole legatee and devisee under said the findings that said Francis S. will. William Herbert Taggart, a Taggart and Minerva Taggart, his brother of decedent, was named sole wife, expressed a desire to adopt executor. At the time he executed petitioner, and that petitioner, besaid will, and thereafter until his ing then of the age of about four death, decedent was a resident of years, went to live with said Tagthe county of Los Angeles, state of gart and his wife, and was given California.

and assumed their name, became a Petitioner, Edna Taggart Boland, member of the family, was entered was born on the 19th day of March, in the public schools and Sunday 1876, the only issue of the marriage schools of the family church as of Benjamin F. Jordan and Har- their daughter, and was supported, riett Loretta Jordan, residents of maintained, and educated by them the state of Illinois. Said Harriett as their daughter from the time of

27 A.L.R.-86.

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