The majority opinion holds that the conveyances made by decedent to defendants are void, and with that part of the opinion I agree. On the question of adoption I believe *Page 602 the opinion goes too far in applying the rule of circumstantial evidence to this class of cases.
The circuit court found:
"That a short time after the death of Clara's mother, her father and the Helds entered into an oral contract by the terms of which Alex Linton agreed to relinquish any further right to Clara and to give her to the Helds, who agreed to adopt her as their daughter and to treat and consider her as though she were their natural child, not having children of their own."
The right of intervenor to inherit the estate of Joanna Held, deceased, depends on the sufficiency of the evidence to justify this finding.
It is generally accepted as a rule that where a contract of adoption is made on behalf of a child, by its parents or by some other person having its control and custody, whereby parental rights are relinquished and the child is reared by foster parents, and where the child renders to the foster parents all the duties and services of a natural child until majority, the child acquires the property rights given by statute to an adopted child. These property rights include the right of inheritance in the absence of a will.
When the alleged contract is oral, the evidence of it must be clear, cogent and convincing, so far as to leave no reasonable doubt about it. Evidence of the relinquishment of parental rights; the performance of duties and services of a natural child; the fact that the child was given the care and affection of a natural child in return for its companionship and affection; that it was educated; that its name was changed; statements of intention or desire to adopt, or other conduct, acts or admissions of the parties are admissible as material circumstances which may be considered in corroboration of direct evidence of an agreement to adopt. However, none of these circumstances, nor any combination of them, is sufficient, by itself, to prove the contract. Clemons v. Clemons, 193 Okla. 412,145 P.2d 928; Heath v. Cuppel, 163 Wis. 62, 157 N.W. 527; In re Norman's Estate, 209 Minn. 19, 295 N.W. 63; Benjamin v. Cronan,338 Mo. 1177, 93 S.W.2d 975; Stillman v. Austin, Mo. Sup., 148 S.W.2d 573; Taylor v. Coberly, 327 Mo. 940, 38 S.W.2d 1055; *Page 603 Thorton v. Miller, Mo. Sup., 151 S.W.2d 1101; Neihaus v. Madden,348 Mo. 770, 155 S.W.2d 141; Pemberton v. Pemberton, 76 Neb. 669, 107 N.W. 996; Hutton v. Busaytis, 326 Ill. 453, 158 N.E. 156; Pantel v. Bower, 104 Kan. 18, 178 P. 241; In re Candelaria's Estate, 41 N.M. 211, 212, 67 P.2d 235; Mahaney v. Carr, 175 N.Y. 454,67 N.E. 903; Hamlin v. Stevens, 177 N.Y. 39, 69 N.E. 118; Middleworth v. Ordway, 191 N.Y. 404, 84 N.E. 291.
In the case of Clemons v. Clemons, supra, this question was considered. Plaintiff claimed that the "Contract of adoption may be shown by conduct, acts, and admissions of the parties." The court said [193 Okla. 412, 145 P.2d 929]:
"The authorities cited support the general propositions advanced by the plaintiff, but they have only a limited application to the issue which this appeal presents for determination, * * *. As pointed out above the issue involved in the trial court was whether Leon H. Clemons had ever contracted to adopt plaintiff as his child. * * * If a contract for the adoption of the plaintiff had been made by Leon H. Clemons in his lifetime, then undoubtedly the plaintiff would have been entitled to maintain an action to enforce it. Eggstaff v. Phelps, supra [99 Okla. 54 226 P. 82]. The existence of the contract for adoption, however, was the sine qua non without which plaintiff could not prevail and with respect to which she was required to produce clear, cogent and convincing evidence." Authorities cited.
In that case the plaintiff tried to establish the contract by evidence that Clemons was thinking some of adopting plaintiff at a subsequent date; that the child's father told Clemons he was agreeable to such adoption and would do anything necessary to cooperate; that the child was taken into the Clemons home when it was about a month old; that there was no agreement between the parties as to how long she should remain or what her status should be; that she was given all the care, attention and affection which a child of the Clemons could receive as long as Clemons and his wife lived; that Clemons said that while at one time he had thought of adopting plaintiff he later decided not to do so. The court then said: *Page 604
"This evidence falls far short of creating a contract of any kind and more particularly a contract on the part of Leon H. Clemons to adopt the plaintiff and to make her his heir. * * * Plaintiff also seeks to invoke the rule that where a child has been taken into a home and treated as a member of the family that this may be considered as evidence of a contract to adopt the child. Some of the cases cited upon casual reading would seem to lend credence to this view. However, a careful examination thereof will disclose that they rather involve the sufficiency of the evidence to support a contract shown to exist rather than to make a contract where none existed nor was intended. * * * The fact that a man has taken a child into his home and has bestowed upon such child the care and affection which he would ordinarily give a child of his own does not compel such individual to adopt such child or to make it his heir."
The court held that the evidence was insufficient to show plaintiff's claim.
The same question was before the Supreme Court of Wisconsin in Heath v. Cuppel, 163 Wis. 62, 157 N.W. 527, 528. That was an action brought by plaintiff against the estate of Charles Cuppel, deceased, for specific performance of a contract of adoption claiming to have been made by decedent. Plaintiff's evidence showed that decedent wrote the person with whom the child was living stating that the plaintiff's mother, then the wife of decedent, would call for the child and bring him to Milwaukee and that decedent would adopt plaintiff as his son. The letter was lost or destroyed. Plaintiff was taken to and lived at the Cuppel home as one of the family. He took the name of Cuppel. He was supported, sent to school and worked on the farm. Relations became estranged, and at the age of twenty-two the plaintiff left, married, raised a family, lost his home and with the aid of decedent returned to the Cuppel home with his family. There he was furnished with a house, necessaries and money by the Cuppels. There was further disagreement and plaintiff left again. Plaintiff claimed that these circumstances constituted an adoption agreement. The court said: *Page 605
"The contents of the letter as established are in their most favorable aspect no more than a declaration by Charles Cuppel, deceased, that he intended to adopt plaintiff. This, however, is no more than a personal declaration that he had determined to adopt him, and fails to show that a contract of adoption had, in fact, been made with plaintiff's mother, the only person who could contract for plaintiff in this matter. * * *
"These facts and circumstances fail to establish that the mother and stepfather at any time consummated an agreement for his adoption, and that plaintiff, pursuant thereto, entered the family and rendered the services to the deceased."
After reciting the salient facts of the case the court said:
"These conditions also refute the contention that the court erred in not finding an express contract of adoption, as plaintiff claims. * * * It is considered that the evidence fails to establish the alleged contract of adoption.
In Re Norman's Estate, 209 Minn. 19, 295 N.W. 63, 65, the facts were that the Normans took a strange child into their care and custody to rear. The child was baptized in the name of Norman and bore that name until she was married. She was treated and raised by the Normans as their own daughter and natural child, and she treated and regarded the Normans as her parents. After the foster father died she made no claim to being his child or heir. After the widow died, she intervened in the estate, claiming all the property. Appellants claimed the evidence proved a contract of adoption but the court held:
"The record is barren of proof that a contract to adopt was made between the Normans and the natural parents of Clarice, or that any such agreement or arrangement was made for or in her behalf at any time by anyone. Admittedly she was but a babe in arms when she came to the Norman home. How and when did such contractual relationship come into being? The record is wholly silent on this important phase. All she relies upon is the fact that she was received in the Norman home in infancy; that from that time and until she married at the age of 18 years while away from home and at school she was treated by *Page 606 them with the same kindness and consideration as if she were their natural child. But as was said in Re Estate of Hack,166 Minn. 35, 37, 207 N.W. 17, 18 (a case where the facts are in principle similar to those here appearing): `Whenever, in the absence of an adoption pursuant to some legislative enactment, a child received from the natural parents into the home of foster parents and treated by the latter as a natural child, has been allowed to share in the estate left by the foster parents, it was only where a contract to legally adopt such child or to give it a share in such estate is clearly proven. * * * Simply that a child of another is received into a home, cared for, and educated until the age of 16 years cannot well indicate that such a child has further claims upon those who so took it in. No doubt such a child has received much more than it has parted with.'"
The opinion distinguishes the case of In re Firle's Estate,197 Minn. 1, 265 N.W. 818, cited in the majority opinion in this case, in the following language:
"The Firle case is probably the nearest in its facts to the instant case. There the proof was (197 Minn. 3, 265 N.W. 819) that the child was taken from the Bethany Home, `a home for orphan children, to the home' of the Firles. `It was the custom of the Home to require people to adopt children whom they took from the home. They "were supposed to adopt them."' In a letter from the home to the Firles it was said: `"You will have to adopthim as a deserted child as no one has any claim on him."' (emphasis supplied.) The Firles took the child with that understanding."
The New York rule is stated in Hamlin v. Stevens, 177 N.Y. 39,69 N.E. 118, 121. In that case the question was whether the appellant was entitled to a share of an estate by virtue of a contract between his parents and the testator. The appellant testified as to the contents of lost letters written to his father by the testator and in which he claimed the testator promised him an equal share in the estate if the appellant would come and live with testator until he reached the age of 21. Other witnesses testified that the testator "repeatedly said he knew no difference between the appellant and his other children and that on several occasions *Page 607 he declared he should make no difference between him and them when he came to divide his estate." The testimony regarding the relationship of appellant and the testator during the appellant's minority was affectionate and paternal.
On the question of the sufficiency of the evidence to prove a contract the court said:
"We are of the opinion that no view of the evidence in the case before us would warrant the conclusion that the alleged contract was made. Assuming that the trial judge believed that the appellant and his mother intended to tell the truth, still, owing to their deep interest, it would be unsafe to base a finding on their testimony when it may be followed by such grave consequences. Such contracts are dangerous. They threaten the security of estates, and throw doubt upon the power of a man to do what he wills with his own. The savings of a lifetime may be taken away from his heirs by the testimony of witnesses who speak under the strongest bias and the greatest temptation, with all the dangers which, as experience shows, surround such evidence. The truth may be in them, but it is against sound policy to accept their statements as true under the circumstances and with the results pointed out. Such contracts should be in writing and the writing should be produced, or, if ever based upon parol evidence, it should be given or corroborated in all substantial particulars by disinterested witnesses. Unless they are established clearly by satisfactory proofs, and are equitable, specific performance should not be decreed. We wish to be emphatic upon the subject, for we are impressed with the danger, and aim to protect the community from the spoliation of dead men's estates by proof of such contracts through parol evidence given by interested witnesses."
The majority opinion in this case refers to Edson v. Parsons, a New York case. The issue there was whether the evidence was sufficient to show that two sisters had entered into an oral agreement to execute mutual wills. The court held that the circumstances were not sufficent to show such an agreement. The rule by which the court determined the sufficiency of the evidence to prove such a *Page 608 contract in a will case is not the rule which prevails in cases involving alleged oral agreements to adopt or to grant a right of inheritance. This is shown by the decisions in the New York cases cited above.
The case of Niehaus v. Madden, 348 Mo. 770, 155 S.W.2d 141, 145, cited in the majority opinion, was an action by Theresa V. Niehaus against Madden, administrator of the estate of Henrietta A.S. Borck, deceased, for the specific performance of a contract of adoption. The decedent was the widow of Doctor Edward Borck. The evidence showed that Dr. Edward Borck met Meyer, guardian of plaintiff, and stated that he would like to adopt the plaintiff. He made an offer to adopt the child and to treat her as his own. Henrietta, his deceased wife, was not present. The question in this case was not whether the contract of adoption had been made by Doctor Edward Borck, but whether such a contract had been made by Henrietta Borck, his widow, deceased. The evidence relied upon by the plaintiff was that decedent stated to plaintiff's uncle that she was anxious to make the adoption and asked him to secure the consent of plaintiff's parents. That after the plaintiff came to St. Louis to live with the Borcks, Henrietta Borck said she was glad she was going to get to adopt the child; that she made other statements of her desire and intent to make the adoption; that she admitted to one witness that she authorized her husband to make the contract of adoption; that she ratified the husband's agency in making the contract of adoption; that she took plaintiff into her home after the contract was made by her husband. There was other evidence of statements of desire and intent to adopt made by Henrietta Borck, deceased. In regard to this evidence and the sufficiency of it, the court said:
"If any contract of adoption were actually made in this case, the offer to adopt is to be found in the conversation of Dr. Edward Borck with the witness Meyer had in 1908 and in his letters to the witness Meyer written shortly after that conversation. Assuming that such offer was accepted by the plaintiff when she came to St. Louis, this would at most show a contract between Edward Borck on one part and the plaintiff or her guardian on the other. Henrietta *Page 609 Borck could be bound by that contract only if it be shown that Edward Borck in making the offer acted as her duly authorized agent or that he purported act as her agent without actual authority and that she later ratified such act. * * * Reasonably construed, the offer was one to have the girl adopted by Edward only. It is difficult to see how such an offer could have been later ratified by Henrietta. Appellant insists that her evidence shows that prior to this time Henrietta wanted to adopt her; but this circumstance, taken alone, is far from sufficient to prove that Henrietta authorized her husband to enter into an adoption contract. Nor is appellant's case strengthened by the fact that Henrietta told Charles Weinmann that her husband would write for her to him about the adoption. This was not an authority to the husband to write to Meyer on behalf of his wife. Nor can we conclude from the fact that Henrietta stated after the children had come to St. Loius that she was glad she was going to get to adopt Theresa, that she had authorized her husband to enter into a legal contract of adoption or that she was ratifying his purported agency in that regard. Certainly the evidence offered does not meet the requirements laid down in our cases above cited in that it is not clear, unequivocal and entirely convincing. In the absence of such evidence we could not hold that a contract to adopt had been proven."
The court held that the plaintiff had failed to prove a contract of adoption made by Henrietta A.S. Borck, deceased.
The decision in Roberts v. Roberts, 8 Cir., 223 F. 775, is certainly inconsistent with the Missouri rule as stated and applied in recent cases.
This court has never before passed upon the question of the sufficiency of circumstantial evidence to support a contract of adoption.
In Quinn v. Quinn, 5 S.D. 328, 58 N.W. 808, 49 Am. St. Rep. 875, the question was whether an oral agreement to make an adopted child an heir was within the statute of frauds.
The case of Kroeger v. Warren, 31 S.D. 480, 141 N.W. 395, involved a contract to convey real property in consideration *Page 610 of care and support. No question of adoption or the right of inheritance was involved.
In Gravning v. Olson, 62 S.D. 139, 252 N.W. 13, there was an express contract to take the boy and keep him for their own; that they would later on adopt the child and that when they died the child would get all their property. The question was the sufficiency of the evidence to prove the oral agreement. The surrounding circumstances and the relationship of the parties were shown for the purpose of corroborating direct evidence of the oral agreement.
In Rhode v. Farup, 67 S.D. 437, 293 N.W. 632, the contract to adopt was proved by oral testimony showing an agreement that the foster parents would take the boy and keep him for their own and would leave their property to him. As in the Gravning case, the surrounding circumstances were admitted for the purpose of corroboration of the oral contract.
In Walsh v. Fitzgerald, 67 S.D. 623, 297 N.W. 675, 678, the evidence showed that while the child was a minor, it was agreed between the father of the minor and deceased that the deceased was to adopt the child and was to make said child her heir. The petition for adoption made by decedent after the child had reached majority recited that the petitioner desired to provide "for the care and comfort of the child and make the child her heir." The concurring opinion says in regard to this recital:
"Though this is not evidence in itself of a contract, it is consistent with the claim of the plaintiff and when considered with testimony as to conversations between deceased and Thomas Walsh, the father of the plaintiff, and the conduct of the parties, the evidence in my opinion is sufficient to sustain the findings of fact."
At the time the Helds took this child her mother had died. The alleged contract could have been made only by agreement between the child's father and the Helds. The record contains not one word of evidence to show that the matter of adoption or the right of heirship was ever discussed, orally or in writing, in any communication between them. Therefore, in my opnion, the evidence is insufficient to justify the finding that a contract of adoption was made. *Page 611