tionate character, and it appeared that the adoptive parent took an interest in the child and her affairs, and treated her with the utmost kindness and consideration, and had expressed her intention of providing for the child in her will. The evidence of adoption, however, was based upon an alleged lost contract, and the court said: "There is not only grave doubt as to the existence of the contract relied on, but the proof of its terms and provisions is of a most unsatisfactory character. It rests entirely upon the memory of two witnesses, neither of whom was interested in it, or had any occasion to remember its terms or provisions, and who made a casual examination of it some six years before, and at a time and under such circumstances that they had no reason whatever for fixing any of its terms or provisions in their minds."

In Merchant v. White (1902) 77 App. Div. 539, 79 N. Y. Supp. 1, it was held that an oral contract to adopt a child and make her the heir of the adoptive parent must be established by a preponderance of the evidence, and, the trial court having found against the authenticity of the contract, a reversal of this finding was not warranted by the evidence.

d. Mere ineffectual adoptive proceeding as evidence of contract.

See supra, II. a.

In Young v. McClannahan (1919) 187 Iowa, 1184, 175 N. W. 26, in a suit for partition, the cross petitioner claimed the real estate involved as the foster child of the deceased owner, and, the adoption proceedings having been defective, the court held that they were sufficient to constitute a contract of adoption, which was enforced in behalf of the foster child.

So, in Kerr v. Smiley (1922) — Mo. 239 S. W. 501, the court sustained a contract for adoption established almost entirely by proof of a formal adoption, invalid because not recorded in the proper county, although the adoption proceeding was had after the adopted child became of age, and she had lived with her adoptive parents since a small child. The court

In Quinn v. Quinn (1894) 5 S. D. 328, 49 Am. St. Rep. 875, 58 N. W. 808, the adoption proceedings were apparently regular and valid, but, as an inducement to the consent of the parent of the child to the adoption, the adoptive parent agreed that the child should be an heir to such portion of his property as a natural child would be entitled to, and this oral agreement was enforced by the court, where the adoptive parent in his lifetime undertook to avoid the obligation thus created by disposing of the property to others.

But it has been held that the mere attempted adoption of, or agreement to adopt, an infant as a child of the adopting parents, even though the term is used that such infant shall become the heir of the adopting parents, does not raise any contract in favor of the child, binding the parents to make it their heir. Corison v. Williams (1922) Cal. App. —, 208 Pac. 331. The court said that it was plain that the adoptive parents, "in using the term 'ligitimate heirs, in the petition for adoption, intended only to put [the child] in the same place in their family which a child of their blood would have occupied, or, as we have already said, they were merely employing the petition for the purpose directed by the law; that is, to show that [the child] was to 'be adopted, and treated in all respects as [their] own lawful child should be treated.'"

The fact that a good-faith attempt was made to adopt a child by deed or contract will not induce the court to

enforce the contract as one to adopt, where there is no statutory provision in the state for the adoption of a child, so as to make the child an heir at law of the adoptive parent. Wall v. McEnnery (1919) 105 Wash. 445, 178 Pac. 631. The court said: "To hold that a contract to adopt would give a right of inheritance, in the absence of a statute permitting such relation, would be to hold that that could be done indirectly which could not be done directly. If there can be no adoption by contract, it follows that equity cannot enforce an agreement to adopt; for the subject-matter of the contract had no countenance in law at the time the writing was entered into. Equity will take jurisdiction to do justice in all those things whereof the law, by reason of its universality, is deficient and it will give a remedy for every wrong; but it will not create a legal right in the absence of legislation or some sustaining principle of the common law. Equity is essentially. and thoroughly remedial, and it will never extend its hand to defeat the policy of the law. The policy of the law may be declared by legislative enactment, or, if the common law be certain, by the want of legislative enactment; the adoption of children being in derogation of common law, and there being no statutory method provided by the legislature at the time the contract is said to have been entered into, it logically follows that there can be no adoption from which a right of inheritance would flow unless it is accomplished by or through some method recognized by law-either under a general law, or by special act of the lawmaking power. The mere living of a child with those who have assumed a care and custody over its person will not make an adoption, although the child may believe that it has been adopted, and such belief may be sustained by family tradition or by neighborhood gossip."

In Masterson v. Harris (1915) 107 Tex. 73, 174 S. W. 570, it is recognized that a person may bind himself to make a testamentary disposition in favor of a child he is adopting, by

making an express agreement to that effect, but it is held that the mere formal adoption of a child with the intention that she should be treated as his own, and that she should have a child's interest in his estate, does not constitute an agreement which will have the binding force to impair the adoptive parent's right of testamentary disposition of his estate. Followed in Masterson v. Harris (1915) Tex. Civ. App. 179 S. W. 284.

In Renz v. Drury (1896) 57 Kan. 84, 45 Pac. 71, in a proceeding to quiet title between the widow of the adoptive father and the adopted child, it not appearing that the statute relating to adoption had been complied with, it was held that the adopted child could sustain no claim to the right of ownership to, or inheritance of, the property of the parent, based upon any alleged parol adoption, although the child had fully performed upon her part.

In Jordan v. Abney (1904) 97 Tex. 296, 78 S. W. 486, the rule is stated that a mere contract to adopt, followed by the assumption and performance. of the duties of parent and child, and the execution of adoption papers not filed for record, does not comply with the statute regulating adoption, and does not establish the right of inheritance thereby provided as a consequence of lawful adoption. This right arises by operation of law from the acts of the parties done in compliance with the statute, and does not depend on or arise from contract.

In Albring v. Ward (1904) 137 Mich. 352, 100 N. W. 609, where the adoption proceedings were based upon an unconstitutional statute, and the child lived with the adoptive parent from the time that she was a small child until the time she arrived at the age of seventeen years, when she married, it was held that no implied contract arose that she should be an heir to the property of her adoptive parent, based merely upon the adoption proceedings. The court, in undertaking to distinguish this case from the Wright Case (Mich.) (cited supra, II. a), said: "Complainant when a mere child knew who her real father was.

She had rendered no service in the belief that she was the real daughter of Mr. Ward, or that she would be an heir to his property. About as soon as she was old enough to render to Mr. and Mrs. Ward any valuable service, she was married, and soon after left them. Some witnesses testified to statements made by Mr. and Mrs. Ward, in which they spoke of her as their daughter, and that she called them father and mother. Such statements are consistent with the theory of supposed legal adoption. They are not evidence of a contract to make her an heir, or to convey her any property. If there were any evidence of a legal contract on the part of Mr. Ward to make complainant his heir, such statements might be of some value in proof of the contract. But, as already stated, the proceedings for adoption afford the sole basis for any claim to such a contract, and they are valueless for that purpose."

In Bowins v. English (1904) 138 Mich. 178, 101 N. W. 204, the court said: "We held in Albring v. Ward (Mich.) supra, that heirship, except that based upon consanguinity, can be created only by a constitutional law. If excuted articles of adoption under a void law are not a sufficient basis to make one a legal heir and to constitute an agreement to convey land, certainly an agreement to adopt, and to take steps, if necessary, to secure such adoption, cannot be made the basis of an agreement to convey land, and cannot be held to be sufficient to take the place of adoption under a constitutional law."

In Carroll's Estate (1908) 219 Pa. 440, 123 Am. St. Rep. 673, 68 Atl. 1038, the court refused to find that there was any parol contract by the wife of the adoptive father to adopt the child, although there were valid adoption proceedings by which the husband adopted the child.

In Evans's Estate (1911) 47 Pa. Super. Ct. 196, an instrument in writing by which parties agreed to adopt, receive, care for, and pay all doctor bills of, a small child, was held not to confer upon the child any rights of inheritance.

In Dorsett v. Vought (1916) 89 N. J. L. 303, 98 Atl. 248, where the question was raised in a proceeding for the construction of a will devising the life estate of the testator's property to his wife, but making no disposition of the remainder, it was held that the fact that a child was referred to in the will as the testator's adopted daughter did not confer upon her or her heirs the right of inheritance. The court said: "There is no contention made that Ida Vought was formally and legally adopted by the testator as his daughter, and, this being so, the allusion to her by the testator as his adopted daughter cannot be held to confer upon her a legal status which the law recognizes only after the adoption to that end, in solemn form of certain prescribed statutory requisites."

In Durkee v. Durkee (1886) 59 Vt. 70, 8 Atl. 490, it was held that no contract to adopt was proven, and hence there could be no decree for specific performance, notwithstanding the child was reared by the foster parents under the belief that he was legally adopted, and performed for them labor of considerable value, and the foster parents procured an act of the legislature changing the name of the child to that of his foster parents, and adopting and making him their heir at law, the same to be effectual when the foster parents signed and filed their consent thereto, which they failed to do.

It has been held that no implied contract to leave real estate to an adopted child arises from a legal adoption, which will entitle the child to inherit real estate situated in another state the statutes of which exclude from inheritance the children adopted under the laws of this state, for the reason that the parties must be presumed to have accomplished all they intended to accomplish, i. e., the adoption; and if they are mistaken as to the legal consequences of the act, it is a mistake of law against which equity will not grant relief. Hood v. McGehee (1911) 189 Fed. 205, affirmed in (1912) 117 C. C. A. 664, 199 Fed. 989.

A. G. S.

claim to the decedent's property as a pretermitted heir, he must first show an actual adoption by showing that every essential requirement of the statute of adoption has been complied with.

Re McCombs, 174 Cal. 214, 162 Pac. 897; Re Sharon, 179 Cal. 447, 177 Pac. 283.

An adult cannot be and never could be adopted under the laws of Illinois, and cannot under the laws of California.

Bartholow v. Davies, 276 Ill. 505, 114 N. E. 1017.

The contract of July 11, 1881, if it be so construed as to provide for the adoption of appellant after her majority, lacked mutuality and cannot be enforced.

Baumann v. Kusian, 164 Cal. 582, 44 L.R.A. (N.S.) 756, 129 Pac. 986.

Mr. James W. Hyde also for respondents.

Seawell, J., delivered the opinion of the court:

Petitioner, Edna Taggart Boland, sought to have distributed to her by the probate court of Los Angeles county the whole of decedent's estate, inventoried at the sum of $45,426, under the provisions of § 1307 of the Civil Code, claiming said estate as an adopted daughter and only heir at law of Francis S. Taggart, deceased, who unintentionally omitted her in his will. The court decided adversely to petitioner, and its decision is here for review.

The court's findings are that Francis S. Taggart died on the 3d day of December, 1919, leaving a will, which was duly admitted to probate. Anna Belle Taggart, a sister of decedent, was made the sole legatee and devisee under said will. William Herbert Taggart, a brother of decedent, was named sole executor. At the time he executed said will, and thereafter until his death, decedent was a resident of the county of Los Angeles, state of California.

Petitioner, Edna Taggart Boland, was born on the 19th day of March, 1876, the only issue of the marriage of Benjamin F. Jordan and Harriett Loretta Jordan, residents of the state of Illinois. Said Harriett 27 A.L.R.-86.

Loretta Jordan died in the state of her residence in 1880. Thereafter, and on the 11th day of July, 1881, said Benjamin F. Jordan Jordan and Francis S. Taggart and Minerva Taggart, his wife, joined in the execution of an agreement by the terms of which Benjamin F. Jordan committed to Francis S. Taggart and his wife, Minerva, the legal custody and care of said child, Edna Lucinda Jordan, who was the only child of said Benjamin F. Jordan, and said Taggart and his wife agreed with the father of said minor that they would nurture, maintain, provide for and educate said child, according to their ability, means, standing, and position in life. It was further provided that, in the case of the death of said Taggart's wife, the father, Benjamin F. Jordan, should have the right to "retake and repossess to himself," his said child upon reimbursing said Francis S. Taggart for moneys expended by him for all reasonable costs, charges, and expenses incurred in and for the care, custody, maintenance, and education of said child, if he should, upon the happening of this contingency, retake said mentioned child into his custody and charge. It was also further agreed that, in case of the death of Benjamin F. Jordan, the said Francis S. Taggart and his wife, or the survivor of either, would forthwith proceed according to the laws of the state of Illinois to adopt said child as their own, or, if one should be dead, as the child of the survivor. It is also a part of the findings that said Francis S. Taggart and Minerva Taggart, his wife, expressed a desire to adopt petitioner, and that petitioner, being then of the age of about four years, went to live with said Taggart and his wife, and was given and assumed their name, became a member of the family, was entered in the public schools and Sunday schools of the family church as their daughter, and was supported, maintained, and educated by them as their daughter from the time of