(dissenting.) I am unable to concur in the opinion of my Brother Long. The defendant admits the acts which constitute waste, unless he can establish his right to the premises under his answer, which partakes of the nature of a cross-bill. The undisputed testimony shows that he was bound to the intestate in 1868, when an infant *180of less than two years of age. This imposed upon him the obligation of rendering service to his master until he should reach the age of 21 years. In 1875 — he having lived with the intestate during the interval — proceedings were had for his adoption under the statute, and with the intention of making him the heir of his foster parents. These proceedings are regular, but unfortunately the act was declared unconstitutional some years later, and hence the defendant did not become the heir of the intestate by force of the statute. If he can be held to have been his heir at law, it must be by reason of our ability to find that the intestate made a valid contract to make him such.
Whether a man can, in the absence of statutory authority, make another his heir, and procure recognition for him as such, is a question not discussed. If he could, that question is concluded for this case by the adjudication by the circuit court, which, in the proceeding appealed from probate court, in which all of the parties were heard, determined that he was not such heir, and that the complainants were the lawful heirs of the intestate. Accordingly, we find that the defendant is not claiming upon the theory that he is the heir, but upon the theory that he is not the heir, and that he has the right to the specific performance of a contract whereby the intestate undertook and promised to give him his property at death in consideration of service until the defendant should reach his majority, which service he says has been rendered. Unfortunately for him, however, the testimony conclusively shows that the intestate never made any such promise. The indentures of apprenticeship are not pretended to have been based on any such promise.- The adoption proceedings contain no more than the consent to make him an heir, the same as the intestate's own children; and if we shall, viewing these proceedings in the light of the unconstitutional law under which they were had, think that the *181intestate may be held to have promised to make bim such heir, there is yet a fatal variance between the contract relied upon and the one proved. Were this an express .and unqualified agreement to make him such heir, and were it based on the promise of service to which the intestate was not already entitled, it could not be enforced as a contract whereby the intestate had promised to give to the defendant his property in consideration of his rendering certain service. The defendant cannot recover upon the theory which he is relying upon. He is precluded by the former adjudication from recovering as the heir, if that ■could otherwise be- permitted, which we do not intimate.
The evidence, so far as it appears in the record, shows an intention on the part of the intestate to allow his property to go to the defendant. Whether the complainants ■could have produced evidence to the contrary, we have no means of knowing, as they appear to have relied upon “their legal rights. Perhaps, however, it is fair to infer that they could not, and, if so, it is a hardship upon the ■defendant'to be deprived of the property. But he was under the obligation to render the service to the intestate before the adoption, and he incurred no further obligation by reason of the adoption. It is therefore difficult to see how the case differs from any other nudum pactum. The disappointment is one that comes from finding that. he has labored under a mistake in relation to his .ancestry and ancestral rights. I find no case which holds that proceedings like those shown in this case can be construed into a contract to convey property by will i>r otherwise, where the evidence conclusively shows that the undertaking was merely to adopt and make an heir of a child, subject to the right upon the part of the foster parent to ■cut him off as he might his own child, especially where the child adopted was not only ignorant of the transaction, but already under a legal obligation to perform all *182of the services which constitute the consideration for such agreement.
I think the decree of the circuit court was correct, and should be affirmed, with costs.
Montgomery, J., concurred with Hooker, J.