This action is brought to enforce the specific performance of a contract whereby William H. Brown in the year 1890 agreed in consideration of plaintiff’s father forever surrendering plaintiff and all his natural and legal rights as her father to Brown and his wife, the latter would take plaintiff (then of the age of seven years, her mother "being dead) and adopt her when their then surviving parents died; that they would rear, support and educate plaintiff and treat her in all respects as their own child, and that said Brown and his said wife further jointly and severally agreed that on their death plaintiff should be their heir and receive all of their respective estates.
A case such as this, founded upon an oral contract claimed to have been made many years ago with a person now deceased, falls within the category of those agreements which the Court of Appeals often characterized as easily fabricated, hard to disprove, to be regarded with suspicion, requiring to be established clearly by satisfactory evidence, and necessitating proof of their consideration, their equitable nature and their certainty and definiteness. (Shakespeare v. Markham, 72 N. Y. 406; Gall v. Gall, 138 id. 675; Brantingham v. Huff, 174 id. 53; Hamlin v. Stevens, 177 id. 39; Mahaney v. Carr, 175 id. 454; Rosseau v. Rouss, 180 id. 116; Tousey v. Hastings, 194 id. 79; Taylor v. Higgs, 202 id. 65.) And yet there is no reason, either in law or in equity, why such a contract should not be specifically enforced if the proof measures up to these tests, and meets the requirements laid down in Tousey v. Hastings, of being “ clear, credible and satisfactory.” I think the case now under consideration is so established.
The proof shows that in 1890 plaintiff, then known as Florence Cugle, was of the age of seven years, and was living *74with her father, Robert M. Cugle, at 405 Lenox avenue, New York city, her mother being dead since May 26, 1889. Cugle and William H. Brown were intimate friends and their social and business relations were close and cordial. They were together a great deal, and Brown and his wife often visited Cugle’s home. They became very much attached to plaintiff, and being without any hope of offspring of their own often expressed their desire to have her as their own child, secured permission to have her visit their home continually and finally Brown said he did not want to keep on borrowing the child, but wanted her as his own. Cugle at first objected, saying he did not want to give her up, but was willing that she should visit back and forth for a couple of years until he made up his mind whether he would give her up permanently! But the Browns persisted and said repeatedly that they wanted to take plaintiff into their home, adopt her by a court proceeding, and that she should be their heir to all their property and estate, and they would both leave their estate to her. Cugle insisted on the adoption being a legal one, if it was to take place. Mrs.- Brown said she wanted Cugle to look at things in the right way, as Florence was going to be made an heiress and have her future protected; that she would be the heir of Mrs. Brown’s estate, which would be a good thing to look forward to, as Cugle had become insolvent. Brown and his wife said they wanted plaintiff to use her own name of Cugle until their respective mothers were dead, at which time they could by court proceedings make plaintiff their legal heir. To a business friend who maintained close social relations with him Brown repeatedly declared, dining a period of twelve years dating back to 1902, that plaintiff was all he and his wife had in the world and they were very fond and proud of her. He referred to her always as their daughter and said that all that he and his wife possessed would be hers; that he was going to make a will in her favor leaving her everything. In January, 1914, Brown spoke to this witness of the death of Mrs. Brown’s mother and said that both his mother and his wife’s being now dead, they were free to legally adopt plaintiff and their entire estate would be hers. At the funeral of plaintiff’s father Brown told a witness that he was devoted to plaintiff, who would eventually be a *75very rich girl, as she would inherit all of the money belonging to himself and his wife; that he had legally adopted plaintiff, taken care of her, maintained and supported her and paid all her school and clothing bills. Brown also told the witness that he had taken complete charge of plaintiff and that plaintiff’s father had turned her over to him and Mrs. Brown, to rear and raise, thinking it best for her, and that the arrangement he had made with Cugle was that plaintiff was to be the heir of his wife, as well as his own. This witness also testified that plaintiff’s father had told him the same thing. Another witness testified that in 1915 Brown told her how fond he was of plaintiff; that she was everything in the world to him; that he had made his will in her favor upon returning from Philadelphia, where her name had been changed to Florence Brown. He said that he had made an arrangement with plaintiff’s family when he took her into his household that he would make her his heir, and not only that but Mrs. Brown would make her her heiress; that plaintiff had Mrs. Brown’s money, who had died a short time before making the former her heir, and she would be a very rich girl. He expressed the opinion that no man was good enough for her. Brown told this witness the agreement of adoption was made with plaintiff’s father. To another witness Brown said that plaintiff was a wonderful girl; that they had adopted her and that she was a daughter and more to them; that her name had been Cugle, but she had taken that of Brown; that Mrs. Brown was going to make her her heir and he, Brown, would do the same. Later Brown told the witness that his wife had made plaintiff her heir and he was going to make her his heir, and some day she would be a very rich girl; that his wife’s estate would amount to between $200,000 and $250,000. He again told witness that he was going to give plaintiff his entire estate and make his will accordingly, as he wanted her to have all he possessed. Then in November, 1916, Brown told this same witness that plaintiff had married without his consent and he was going to cut her off in his will and would leave her nothing; that he always intended to leave his estate to her, and on one occasion he said that he had taken plaintiff with him to Philadelphia where he had made his will, as he wanted her to understand its terms, as he had left all his estate to her.
*76In May, 1914, Brown, his wife and plaintiff left for Philadelphia and on their return Brown told the room clerk at the hotel where he was living that he had adopted plaintiff and intended to make her his heir, and that the three of them had gone to Philadelphia because of some restrictions on adoption in the State of New York.
It was shown that the safe deposit vault in the National Park Bank containing Brown’s securities (amounting to $105,000) was rented in the name of “ William H. Brown or Florence C. Brown.” It was not changed to Brown’s sole name until after plaintiff’s marriage. The securities were still therein at the time of Brown’s death. The lawyer iri Philadelphia who attended to the legal business there, was called to testify to the adoption proceedings and to the various wills.
The documentary evidence in the case is most important, and to my mind conclusively establishes the plaintiff’s version of the contract. It is her claim that she was to be legally adopted by Brown and his wife only after both their then surviving parents were dead. The last to die was Mrs. Charlotte Manley (mother of Mrs. Brown), who died in December, 1913. The other parent, Mrs. Matilda Brown, had died in 1910. Plaintiff’s father died in 1911. In May, 1914, Brown and his wife, taking plaintiff with them, went to Philadelphia. On May 20, 1914, Brown and his wife verified a petition to the Court of Common Pleas No. 3, for the city and county of Philadelphia, wherein they set forth:
“ 1.' That petitioners were born in the State of Pennsylvania and have been married to each other for upwards of 32 years.
“ 2. That petitioners have for many years past resided in the City of New York; that their last and recent residence there was No. 134 West 86th street, and within the last few days they have quit and abandoned the same as their home and residence, and have not determined where they will permanently reside in the future.
“3. That petitioners are frequent visitors to the City of Philadelphia, in the State of Pennsylvania, and are at present temporarily residing at the Hotel Bellevue-Stratford in said City.
*77“ 4. That petitioners are childless and their family consists of themselves and Miss Florence A. Cugle. That the said Florence A. Cugle was born in the State of New York on March 1st, 1883, and she is just past 31 years of age; that she is the daughter of fiobert McDowell Cugle and Melvina Cugle, both of whom are deceased; that she is a single woman and has no brother or sister.
“ 5. That the said Florence A. Cugle has lived with the petitioners since she was seven (7) years of age, and since then has been wholly supported and educated by them, and during all that period to the present has been reared and treated by them as if she were their own offspring.
“ 6. That the petitioners are desirous of adopting the said Florence A. Cugle, as their child and as one of their heirs, and she the said Florence A. Cugle consents to be so adopted and to be subject to the duties of such child, as will appear by her joining in the prayers hereof.
“ 7. The petitioners are also wi ling and desirous that the said Florence A. Cugle shall assume and bear their name and the said Florence A. Cugle is also desirous of assuming and bearing the surname of the said petitioners.
“ Wherefore your petitioners pray your Honorable Court to order and decree that the said Florence' A. Cugle shall have all the rights of a child and heir of your petitioners and be subject to the duties of such child, and that the said Florence A. Cugle may assume and bear the surname of your petitioners.
“ And your petitioners will ever pray.
“ WILLIAM H. BEOWN,
“ CHAELOTTE P. BEOWN.”
The petition was verified by both of them; plaintiff, signing as Florence A. Cugle, joined in writing in the application, and consented to the proposed adoption of her by the Browns and to the assumption by her of the name “ Brown.” A decree of said court was accordingly made on May 25, 1914, granting the prayer of the petitioners, and ordering and decreeing “ that said Florence A. Cugle shall have all the rights of a child and heir of the said William H. Brown and his wife Charlotte P. Brown, the petitioners, and be subject to the duties of such *78child; ” and plaintiff was to assume and bear the name “ Brown.” On May 26, 1914, Mrs. Brown made her will describing herself as formerly residing in the city and State of New York but then temporarily residing in the city of Philadelphia. By the 2d paragraph thereof she gave and bequeathed all her silverware, jewelry and such personal effects as she might select, with $10,000 in cash “ unto my adopted daughter, Florence A. Cugle Brown (her adoption by me having been confirmed by a decree of the Court of Common Pleas No. 3 of the City and County of Philadelphia, dated May 25th, A. D. 1914).” After gifts of the income on $7,000 and $3,000 respectively for life to an aunt and a friend, and of $500 for the care of her burial plot in Woodlawn Cemetery, she created a trust fund of her residuary estate; the income thereof was to be paid to her “ adopted daughter Florence A. Cugle Brown ” for life, with power of disposition of the principal at her death. A clause in the will read: “ Fifth. I desire to note in this my last will that I have not made any devise or bequest to my husband William H. Brown, because he has specially requested me not to, he having advised with me concerning the propriety of the provisions of this my will, all of which meet with his approval.”
Mrs. Brown died in October, 1915. Her will was duly probated and plaintiff is still receiving the income from the residuary estate amounting to $6,375 annually. That Mrs, Brown deemed her will to amount to a gift of all her property to plaintiff is shown by the testimony of defendants’ witness, Mrs. Annie S. Brown, that Mrs. Brown said she had made a will leaving everything she had to Florence; and Mr. Brown said that was his wish, he wanted her to have everything. On October 29, 1915, Brown made his will in Philadelphia whereby he gave “ unto my adopted daughter Florence A. Cugle Brown (her adoption by me having been confirmed by a decree of the Court of Common Pleas No. 3 of the City and County of Philadelphia, dated May 25th, 1914) ” all his books, silver and silverware, household goods and furniture and personal effects. After bequeathing $10,000 to Charlotte Brown Chichester' he directed his interest in his business to be sold to his partner, Howard Chichester, for $50,000, payable in promissory notes, and the interest on the notes as paid *79and the income from his entire residuary estate hereto be paid over to plaintiff for life with power of appointment to her to dispose of the entire estate upon her death. A few days later Brown executed the will with some unimportant changes. Among the changes he suggested to her attorney was one whereby if plaintiff should die leaving a husband and no legal issue, the money should not go to her husband.
The plaintiff had been married in April, 1916, but concealed the fact from Brown, who did not learn of the marriage until November, 1916. The idea of a marriage between plaintiff and Ennis seems to have been particularly repugnant to Brown, who was greatly angered when he learned of it, and on November 16, 1916, at the city of Philadelphia, Brown made his final will whereby he left nothing to plaintiff and set forth the reasons as follows:
“ Eleventh. It is proper that I should state that my reason for not leaving any portion of my estate to my adopted daughter, Florence C. Brown, is because she has already been mentioned in the will of my wife, and because she has recently been secretly married without my knowledge or consent, in violation of a solemn promise made to my wife, Charlotte P. Brown in her life time.”
William H. Brown died at the city of New York on April 24, 1917. He had no heir or next of kin save his adopted daughter, the plaintiff.
The will of November, 1916, was duly admitted to probate by the Surrogates’ Court of New York county October 4, 1917, after objections had been filed by plaintiff on the ground of testator’s incapacity and fraud and undue influence exercised by Howard Chichester.
The testimony for the defendants does not controvert the main facts testified to on plaintiff’s behalf. A clergyman testified that after learning of plaintiff’s marriage, Brown was much disturbed because she had married against his wishes, and he told the witness he and his wife had both determined to leave her the bulk of their property, as they were very fond of her; that she had already received her inheritance from Mrs. Brown and he (Brown) was going to Philadelphia to make a new will, so she would not get anything from him. Later he told the witness he had been to Philadelphia, had *80changed his will and had stricken out the provision for her because she married against his wishes. He said plaintiff had promised him and his wife that she would not marry but would stay with Brown and take care of him the rest of his life. Another witness said that Mrs. Brown told her that the reason for adoption proceedings so long after plaintiff had lived with them was to avoid gossip and scandal when Mrs. Brown died, if plaintiff still lived in the Brown home. This witness said Mrs. Brown had told her plaintiff’s father would not let her be adopted while he was able to provide for her. The witness admitted that Brown had told her that his wife’s will was made by his wish; that he wanted plaintiff to have everything and she would probably be one of his heirs unless she married one of the good-for-nothing fellows who were hanging around her, in which case she would not get one penny. The witness further testified that plaintiff, when she heard a will had been made which did not leave her anything, said it was no more than she expected, as Brown had always said he would cut her off if she married and she did not care as she had Mrs. Brown’s money and he could do as he liked with his. Plaintiff testified to leaving home and going to live with the Browns at the age of seven, and in rebuttal testified that Brown offered her money through Mrs. Annie Brown if she would leave her husband and return to his home and sign a statement that she had promised never to marry.
The executor was called to identify certain checks drawn by Cugle, showing monthly payments of $175, the amount of the rent of the house in which both families were living at one time.
In my opinion this record establishes by clear, credible and satisfactory evidence that Brown and his wife, in the year 1890, when plaintiff was seven years of age, made a contract with plaintiff’s father (her mother being dead) • whereby in consideration of said father surrendering the plaintiff forever to Brown and his wife, the two latter agreed to support, rear and educate plaintiff and treat her in all respects as their own child, and to adopt her legally as soon as the last surviving parent of either Brown or his wife died, and to make her their heir and to leave her by will their respective estates.. *81Plaintiff’s father did in fact surrender his daughter. Brown and his wife proceeded in good faith to carry out their contract based on this consideration. They reared, supported and educated plaintiff and treated plaintiff in all respects as their daughter-. Mutual love and confidence existed between them. When the last parent of the Browns had died, they legally adopted plaintiff, going to Pennsylvania to do it, where an adult could legally be adopted. The petition for adoption in its details corroborates the testimony as to the relations between plaintiff and the Browns. It is their verified proof of the earlier agreement and its carrying into effect. Not only is plaintiff sought to be made their daughter but their heir as well. It is so ordered. Immediately Mrs. Brown makes her will, reciting the adoption and leaving practically all her estate to plaintiff for life, with power of appointment. She regarded it as performance of her agreement to leave plaintiff all her estate and the latter so accepted it. The will was made with her husband’s approval though he received nothing under it. Some months thereafter Brown made a will also leaving practically all his estate to plaintiff for life, with power of appointment. All this is in harmony with plaintiff’s claim and with the continued, frequent and uniform statements for all those years made by Brown that plaintiff was to be the heir of his wife and himself, and was to receive both their estates. This was to be the performance by them of the contract which Cugle had already performed as his part by turning his daughter over to them to be cared for, adopted and made then* heir by them. Mrs. Brown carried out her contract to the end. Brown never wavered in the performance of his contract until his resentment at plaintiff’s marriage led him to change his will and disinherit her. But he could not then disavow his responsibility for the performance of his part of a contract whereof the other party had made full performance I think this is an honest, fair contract, sufficient and equitable in its terms, fully understood by all parties concerned, entered upon with full knowledge of its terms, and open to neither criticism nor doubt of its meaning. It was founded upon sufficient consideration. It was performed in good faith upon both sides until Brown felt aggrieved at *82something outside its terms and sought to disregard it. The testimony before us meets every fair and reasonable requirement applied to even this particular class of claims and as a contract such as that involved in this action must be enforced if satisfactorily proved. I see' no reason, for disturbing the conclusions reached by the court at Special Term.
The judgment appealed from should be affirmed, with costs.
Merrell, J., concurred.
Judgment reversed, with costs, and complaint dismissed, with costs. Order to be settled on notice.