concurring:
I concur in the order and in the opinion of Mr. Justice Coleman.
This action was primarily an action for specific performance. The cause rested upon two parol agreements alleged to have been entered into, the first by John and Jane Forsyth and Harriet G. Murdock, the natural mother of respondent, the second by John and Jane Forsyth and William T. Bacon, the natural father of respondent. Each of the parol agreements, according to the allegations of the complaint of respondent and according to the theory of his counsel, consisted of two elements: First, an agreement on the part of the For-syths to adopt Alexander C. Forsyth; and, second, an agreement to leave to Alexander C. Forsyth, the respondent, all property of which John and Jane Forsyth died possessed. Enough is stated in the first section of the amended complaint to correctly set forth the position of respondent. It recites:
“That William T. Bacon and Harriet G. Murdock were married in the year 1879, and the plaintiff, Alexander C. Forsyth, was born to them on the 25th day of March, 1882; that after the birth of the said Alexander *318C. Forsyth, the said William T. Bacon and Harriet G. Murdock were divorced, and by mutual consent the care and custody of the said Alexander C. Forsyth was given to and assumed by the said Harriet G. Murdock; that thereafter and during the year 1882 the said Harriet G. Murdock was married to Jonathan B. Roberts; that thereafter the said Harriet G. Murdock, with her child, the said Alexander C. Forsyth, visited the home of John F. Forsyth and Jane Forsyth, now deceased, who then resided on a ranch in Lassen County, State of California, and that the said Harriet G. Murdock left her son, the said Alexander C. Forsyth, with the said John F. For-syth and the said Jane Forsyth during an illness from which she, the said Harriet G. Murdock, then Harriet G. Roberts, was suifering; that during such time the said Forsyths, and particularly the said Jane Forsyth, became greatly attached to the said Alexander C. Forsyth, and desired to keep the boy and adopt him as their own child, in and about the month of September, 1885, and requested the said Harriet G. Murdock that she give her son to them, the said Forsyths; that the said John F. Forsyth and Jane Forsyth then and there undertook, promised, and agreed to and with the said Harriet G. Murdock that, if she would give them her said son, the said plaintiff, Alexander C. Forsyth, they would adopt him as their own son, and promised and agreed that on their deaths he would become entitled to and inherit and have all the property of which they might be possessed at the time of their deaths; that in consequence of such undertaking, promise, and agreement on the part of the said John F. Forsyth and Jane Forsyth, the said Harriet G. Murdock gave her said son to the said Forsyths, with the express intention of improving the condition and prospects of her said son, and they thereupon took and kept the said plaintiff, Alexander C. Forsyth, gave him their own name of Forsyth, had much affection for him, treated him as their son, brought him up as their own child, educated him, and introduced him as their own child.”
*319Section 2 of the complaint recites as to the agreement between the Forsyths and William T. Bacon at a subsequent date; such agreement being of similar import to that averred in the first section.
It appears to me to be well established by a line of competent evidence that a parol agreement to adopt was made between the Forsyths and the natural parents of respondent. The trial court so found, and in this finding he was, as I view it, amply supported by the facts presented. The proof in this respect meets the test. The second phase of the agreement, namely, to leave to respondent the property of which the Forsyths should die possessed, is not supported by the evidence to that degree of cogency required by the rule applicable to such matters, as that rule has been established and maintained by an almost overwhelming line of authority. The strongest element of proof found in the record which goes to support the contention of respondent as to this phase of the agreement is that furnished by the witness Mary Dickinson, wherein were recited utterances made by Jane Forsyth some years prior to her demise. It was expressed by the witness thus:
“She said that Mr. Forsyth • said that Alex [the respondent] had been very good to them and had spent his time and money on them. The affairs were settled now, and for her to see that he would not be forgotten; that what was left was supposed to be his.”
Again and again writers of the law have given expression to the doctrine that specific performance of a parol contract will be decreed only when the contract itself, as well as the terms thereof, have been clearly proven.
In the matter of estates of deceased persons especially, courts have zealously guarded the avenues by which fraud or misrepresentation might find entrance. Some authorities have gone so far as to say that, where an oral contract is relied upon, the evidence to establish the same must be overwhelming in its probative force. Indeed, it has been asserted by some authorities that such contracts must be so proven as to leave no room for *320reasonable doubt. (Missouri Pac. Ry Co. v. McCarty, 97 Mo. 214, 11 S. W. 52.) The probative force of the testimony of the witness Mrs. Mary Dickinson, giving every word thereof full significance, is not, in my judgment, commensurate with the rule. “What was left was supposed to be his” was testified to as being the assertion of John Forsyth, deceased, repeated to the witness by Jane Forsyth. It would require a long and tortuous stretch of imagination to convert this language into an expression signifying prior established contractual relations. I have already expressed myself as to the first element of the contract, namely, that of adoption. Assuming that a contract for adoption was established as having been entered into between the Forsyths and the natural parents of respondent, the most that can be said is that as a consequence thereof the right of inheritance would flow to respondent. In this, however, he would take no greater right than that of a natural child. If Jane Forsyth had died intestate, then as a consequence of the establishment of a contract to adopt the respondent would have become an heir at law to the estate of the deceased. It is established in this case that Jane Forsyth left a will making disposition of the property of which she died possessed. If the contract of adoption had primarily been established as having been entered into between the Forsyths and the natural parents of respondent, the respondent could have availed himself of the remedy to establish his heirship. Such, however, is not invoked by an action for specific performance.