the agreement until the death of Minerva Taggart, which occurred on January 2, 1900. After her death the relation between petitioner and Francis S. Taggart continued as it had existed in the past, until petitioner's marriage, which was solemnized December 11, 1901, with the sanction of said Francis S. Taggart. It is also related that after said marriage petitioner and her husband made their home for a time with said Taggart, at the latter's request.

It is an admitted fact that said Francis S. Taggart and his wife treated petitioner in all respects as a parent should treat a natural child, and in turn she rendered unto each of them the affection, society, and services attending that relationship. Sometime after her reception into the Taggart family, and during the life of Francis S. Taggart and his wife, petitioner was informed by them, and believed, that she was their legally adopted daughter, and did not know until after the demise of Francis S. Taggart that she had not been legally adopted as their child. Benjamin F. Jordan, the father of petitioner, died in Chicago, state of Illinois, on May 1, 1903, about two years after his daughter's marriage. The court also found that under the laws of the state of Illinois a female person ceased to be a minor and attained her majority upon attaining the age of eighteen years, and that neither said Francis S. Taggart nor his wife, nor the said Francis S. Taggart after his wife's death, proceeded to or attempted to adopt petitioner as their child in accordance with the statutory law of said state, or of any state. It further found the last will and testament of said decedent, Francis S. Taggart, failed to provide for said petitioner or to name her therein, and that there was not, at any of the times mentioned in the petition, any statute or law in the state of Illinois providing that a person omitted from the last will of his or her natural or adopted parent was entitled to that

portion of such parent's estate which he or she would have inherited had such parent died intestate, and that the laws of Illinois permitted a testator to disinherit a child of the blood or an adopted child, by omitting to mention or provide for such child in his last will or testament. By its findings the court decreed that the testator left surviving neither wife nor issue of his blood, nor any adopted child, nor any descendant of such issue or of any adopted child. As a conclusion of law from the foregoing facts the court found that petitioner, Edna Taggart Boland, is not an heir at law of Francis S. Taggart, deceased, and therefore not entitled to any portion of his said estate as an heir at law or as a pretermitted child of said decedent, and thereupon denied her petition. Judgment was entered accordingly.

The contract upon which the action has its inception was made in the state of Illinois, where the parties then resided, and where they continued to reside until about the year 1901, when the principal actors removed to this state.

Estoppel-to con

It is the admission of petitioner that no formal statutory adoption exists in her favor. Her claim seems to be that an estoppel in pais should test claim of be invoked in her adoption. favor on the untenable theory that petitioner has been misled by the declarations and conduct of the Taggarts, or that some species of fraud has been committed against her by them, jointly or separately. No dispute exists as to the facts of the case, and we feel satisfied that the authorities cited by petitioner have no application to the statement of facts as related in the record. No question arises in the instant case of a promise or agreement broken to execute a will in another's favor, or in fact a violated promise to adopt a child, or a promise to convey property for the benefit of another upon condition that the promisee would change his or her situation or station in life

for the benefit of the promisor, nor are there any facts present in this case such as undoubtedly controlled the decisions in the cases cited of the character of Rogers v. Schlotterback, 167 Cal. 37, 138 Pac. 728, and others involving questions of fraud, mistake, and kindred questions. The rights of the parties in the instant case are defined and limited by the clear terms of a written contract, about which no doubt can exist as to the intent of the parties. Undoubtedly it was the wish and hope of Francis S. Taggart and his wife to have fully adopted the petitioner while she was in her minority. The father, Benjamin F. Jordan, however, having recently lost his wife by death, was attempting to restore as far as humanly possible the motherly love, care, and protection that every right-feeling man would wish his infant daughter to enjoy or possess. Clearly, it was no mercenary thought as to future financial benefits or inheritable possibilities that moved the father to place the custody of his daughter with the Taggarts, but rather it was his desire that she might enjoy the advantages of a wholesome home life which he was not in a situation to supply. He seems in this respect to have been guided by a high and commendable purpose, and, true to paternal instinct, he was not willing to surrender absolutely all possible control of his only child so long as he should live. He was not willing that another should in a full sense be substituted in his place. By his contract he reserved the right at any time upon the death of Minerva Taggart to resume

the care, custody, and control of his child by paying to Francis S. Taggart all reasonable charges and expenses incurred by him in the care and maintenance of said child. This provision shows very clearly that he desired for his daughter, without losing the right to regard her as such, the influence and direction of a woman to take the place of a mother; but at no time did he

consent to the adoption of his child while he was in life.

Adoption

ought to have

Petitioner has invoked the familiar maxim that equity will treat as done that which ought to have been done; but there is nothing presented by the case at bar upon which the well-known and favored rule may treating as done operate. There is that which nothing of fraud, been done. deceit, or mistake in the case. What is there that should have been done, or could have been done, that was not done? Surely Francis S. Taggart could not have ruled the fates of men. upon the death of Jordan during the period of Edna's minority would it have been legally possible for the Taggarts to have adopted her. The adoption of one

rights.

Evidence

Only

He

person by another common-law was unknown to the common law. The right to adopt a child and the right of a person to be adopted as a child of another are wholly statutory. who claims that an act of adoption has burden of proof been accomplished adoption. must show that every essential requirement has been complied with. Re Sharon, 179 Cal. 447, 177 Pac. 283; Re McCombs, 174 Cal. 211, 162 Pac. 897; Ex parte Clark, 87 Cal. 641, 25 Pac. 967; Re Johnson, 98 Cal. 531, 21 L.R.A. 380, 33 Pac. 460; Re Stevens, 83 Cal. 331, 17 Am. St. Rep. 252, 23 Pac. 379. The right being entirely a creature of the statute, we must necessarily look to the statute alone for the authority to adopt, and if not expressed it cannot legally exist.

The statute of California provides only for the adoption of a minor child, and no provision is to be found for the adoption of one adult by another. Civ. Code, §§ 221 et seq. Neither is there to be found authority in the laws of Illinois permitting the adoption of . adults. Bartholow v. Davies, 276 Ill. 505, 114 N. E. 1017. Thus, it will be seen that at no time after the execution of the contract giving

the custody of petitioner to the Taggarts was it legally possible for Taggart to have adopted petitioner. At the time Minerva Taggart died petitioner had passed the age of twenty-three years. Petitioner was of the age of twenty-seven years at the time Benjamin F. Jordan, her father, died. Her age at the time of her marriage was twenty-five years. So it will be seen that there was no time when an adoption was possible. The father at no time gave his consent, and surely it will not be contended that under the terms of the agreement petitioner could have been regarded as an abandoned child under the statute of this state, or by the laws of any other state of which we are advised:

The cases relied upon by petitioner, as observed earlier in this opinion, are not in point. Thomas v. Maloney, 142 Mo. App. 193, 126 S. W. 522, presents a question of the enforcement of an oral contract of adoption. Barney v. Hutchinson, 25 N. M. 82, 177 Pac. 890, is an action to enforce a similar promise or agreement. In the latter case the adoptive parent agreed, upon receiving the child into his custody, to immediately adopt it. This was not done. Rogers v. Schlotterback, supra, was an action to specifically enforce an oral contract made by the promisor in favor of the promisee, to the effect that the former would make the latter an heir to share in his estate equally with his own issue. Re McCombs, 174 Cal. 211, 162 Pac. 897, reaffirms well-established legal principles governing the law of adoption and inheritance, but offers nothing specially favorable to petitioner's claim. Steinberger v. Young, 175 Cal. 81, 165 Pac. 432, announces the doctrine that a contract to dispose of property upon death in a particular way may, under proper conditions, be specifically enforced. The legal principles recited in these cases cannot be combated. They have, however, no application to the facts of the present case.

We are unable to understand how petitioner could have been prejudiced by the agreement made by her father with the Taggarts. It has been suggested that she should have been informed by the Taggarts that she was not their adopted child, and it is also stated, as though the fact had some significance, that, had she known she was not the adopted child of the Taggarts, she would have been able to have named her guardian upon arriving at the age of fourteen years. Just what advantage may have accrued to her from such knowledge is not made clear. Her father was her natural guardian, and surely no one would have been permitted to adopt her without his consent. It has not been suggested that he was an improper person to have the care, custody, and control of his natural daughter. From aught that appears in the record it must be presumed that he possessed the requisite qualifications. Whether petitioner knew her father and was advised by him is not shown by the record. In this respect we are only told that she had been informed that she was the adopted daughter of the Taggarts, no further reference being made as to her relations with or knowledge of her said father. She was, however, past twenty-seven years of age at the time of his demise.

Adoption-es

absence of fraud.

In a review of the whole situation we are satisfied that Francis S. Taggart discharged every legal and moral obligation that rested upon him, and there can be no imputation tablishment that he violated any after deathduty or promise made either to the father of petitioner or to petitioner herself. If as a fact he led her to believe that he and his wife were her adopted parents, it was doubtless done that discipline might be more complete and mutual respect and domestic tranquillity be better preserved.

Our conclusion being that the pe

titioner is not the adopted child of Francis S. Taggart and his wife, Minerva, or either, it becomes unnecessary to discuss the question as to whether the testator had petitioner in mind when he omitted to

provide for her in his will, and that such omission was intentional. The decree is affirmed.

We concur: Wilbur, Ch. J.; Lennon, J.; Myers, J.; Kerrigan, J.; Lawlor, J.; Waste, J.

The cases considering the matter are in substantial harmony in sustaining an estoppel in pais to preclude adoptive parents and their privies from asserting the invalidity of adoption proceedings, or, at least, the status of the adopted child, 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.

The doctrine of estoppel to deny the adoption of a child was applied in Holloway v. Jones (1922) Mo. 246 S. W. 587, where a small child was taken into the home of the alleged adoptive parents, who assumed the entire burden of her nourishment, education, and clothing, it further appearing that she married from her adopted home, lived there with her husband; that a child was born to them there; that she was nursed there in sickness, and sent to the hospital from there when occasion made it necessary; and that bills for medical attention from the time she entered their home were paid by her foster parents. During her residence in this home she had grown into the régime of the family; the tradesmen and banker recognized her relation to the family and extended credit, at her suggestion, on checks drawn by her upon her foster mother's account, and in her conduct she exercised, to

corded her as a member of this family. Under these circumstances the court, referring to the former Missouri cases upon the point, said: "In all these cases it is held, in substance, that one who takes a child into his

home as his own, receiving the benefits accruing to him on account of that relation, assumes the duties and burdens incident thereto, and that, where justice and good faith require it, the court will enforce the rights incident to the statutory relation of adoption. The child having performed all the duties pertaining to that relation, the adopting parent will be estopped in equity from denying that he assumed the corresponding obligation. In equity it will be presumed that he did everything which honesty and good conscience required of him in justification of his course. Equity follows the law except in those matters which entitle the party to equitable relief, although the strict rule of law be to the contrary. It is at this point that their paths diverge. As the archer bends his bow that he may send the arrow straight to the mark, so equity bends the letter of the law to accomplish the object of its enactment."

In Horner v. Maxwell (1915) 171 Iowa, 660, 153 N. W. 331, the court, in specifically enforcing an oral contract to give the promisor's adoptive child their property upon the death of the survivor of them, said: "As the writing before us failed in its purpose to effect adoption, through the neglect of the adoptive parents to record, those claiming under them ought not to be permitted to defeat the child's claim to the property under

an independent agreement concerning a subject not touched in that writing. Oral testimony is not ordinarily excluded under like circumstances, nor a party denied the right to establish an oral contract by proof extrinsic of the written agreement. Such written agreement neither evidenced the adoption of plaintiff nor conferred on her the right of inheritance or claim to the property, and therefore did not relate in any way to the subject of the oral agreement."

In Young v. McClannahan (1919) 187 Iowa, 1184, 175 N. W. 26, where the proceedings taken for the adoption of an infant were invalid because the deed of adoption was not filed, the court said: "They [foster parents] either negligently or designedly failed to record the instrument, and thereby prevented the proposed adoption from becoming effective as such. This omission was through no fault of the mother, who departed this life two years after the adoption, or of the child, who was of tender years, and probably knew nothing of the existence of the paper until too late to record, and neither the [foster parents] nor their heirs are in a situation to complain, if the instrument before us is construed independently of the statutes of adoption, and the rights derived thereunder enforced precisely as though no such statutes existed. Whatever may have been the original purpose to be effected, through the omission to record, the instrument never became other than a mere contract between the parties; and upon performance the cross petitioner became entitled to ‘all the right' which would have pertained to her had she been born to the other parties to the agreement in lawful wedlock."

In Fiske v. Lawton (1913) 124 Minn. 85, 144 N. W. 455, the court said: "Moreover, the deceased voluntarily entered into the contract, and pursuant thereto received during her life the benefits of the relation thereby created-the services, society, affection, and devotion of an adopted

daughter made her own. No principle of law or equity requires a holding that respondent can avail herself of technical objections to the child's status, the validity of which, so far as appears, remained undisputed by deceased, after full performance of the contractual relations therein involved."

In Jones v. Leeds (1908) 41 Ind. App. 164, 83 N. E. 526, the court, after pointing out that the validity of the adoption proceedings was recognized by the foster mother during her lifetime, and challenged for the first time by her heirs, said: "Appellees cannot be permitted by a court of equity, to take advantage of a wrong, if any, to the prejudice and injury of the innocent party, after the lapse of many years, during all of which time the status of the child, as fixed by the court, has been recognized by all the parties to the proceed

ings."

In Anderson v. Blakesly (1912) 155 Iowa, 430, 136 N. W. 210, where the adoption proceedings were held to be invalid, but the parties had recog nized them during the life of the adoptive father and during the minority of the child, who had rendered service, love, and companionship to her adoptive parents during her minority, the court said: "There is not the slightest doubt that the defendant and her husband, now deceased, intended to adopt the plaintiff in the full statutory sense, and in good faith believed they had done so. So far as McColm [the adoptive father] himself is concerned, he died without discovering the error made in the writing. The defendant herself acted under the same belief, and even after this litigation began she filed a pleading admitting the adop tion, and not until later in the history of the case did she, or someone in her behalf, ascertain that a flaw existed in the instrument, whereupon she adjusted her defense to make use of the advantage so afforded. A contract so made, so long recog nized and acted upon, and the consideration for which has been duly rendered, should not be open to