I concur in the holding of the majority that there was no validation of an attempted adoption under Art. 46b, V.A.C.S.
I disagree with the majority in its decision that there was no evidence to support the finding of the Trial Court that an adoption by estoppel had been effected. It is also my opinion that such finding is not against the weight of the evidence. I do not elaborate upon this opinion because the facts are fairly stated in the majority opinion and they speak forcefully for themselves.
I am also of the opinion that the heirs of Helen Mar Hunnicutt are entitled to all of her estate because Art. 2572, V.A.C.S., under which appellees, the collateral heirs of the adoptive parents of Helen Mar Hun-nicutt, claim may be invoked only in behalf of adoptive parents (or their heirs) of an intestate who was their “legally adopted heir.”
In Calvert v. Johnston, Tex.Civ.App., 304 S.W.2d 394, affirmed Tex., 305 S.W.2d 778, it was held that a child not adopted in accordance with the statutes was not a “legally adopted child” within the meaning of inheritance tax statute Art. 7118, Class A, V.A.C.S.
I quote from the concurring opinion in Calvert v. Johnston [304 S.W.2d 399]:
“In Sommers v. Doersam, 115 Ohio St. 139, 152 N.E. 387, 389, Supreme Court of Ohio, the Court in considering a devise in a will conditioned that the devisee remained unmarried until her death and has ‘legally adopted a child’ had this to say:
“ ‘The expression “legally adopted” means in accordance with the laws of the state in force and effect at the time of the execution of the will. These matters are, of course, statutory, as adoption was unknown to the common law of England; * * *. His use of the words “legally adopted” indicates his desire that any adoption made by his widow should be in accordance with the law of the land.’ ”
It is my opinion that the Legislature in enacting Art. 2572, supra, intended by the language used to create an exception to the general rule therein stated only in favor of persons adopted and made heirs in accordance with our statutes.
An adoption by estoppel is not an adoption made in accordance with the statutes and is not a legal adoption. It is an equitable adoption. Cubley v. Barbee, 123 Tex. 411, 73 S.W.2d 72.1
*952The case of Rumans v. Lighthizer, 363 Mo. 125, 249 S.W.2d 397, is strikingly similar to this case and is of especial importance because the adoption statutes of Missouri are much like our own. Cubley v. Barbee, supra. See also Jones v. Guy, 135 Tex. 398, 143 S.W.2d 906, 142 A.L.R. 77.
There the contest was, as here, between the blood kin of an adopted child and the blood kin of an adoptive parent who survived the adopted child but both of whom died intestate, the adopted child dying without issue or surviving spouse.
The Trial Court found that the child had never been legally adopted, because the adoption was not in accord with the statutes, but “was in equity and by estoppel” an adopted child and rendered judgment in favor of the heirs of the adopted child.
Under Missouri law at the time the imperfect statutory adoption of the child was executed the property of an adopted child who died intestate passed to its heirs excluding the adoptive parents and their kin. Subsequently and prior to the death of the adopted child this law was changed, the statute providing, in part, that
“When a child is adopted in accordance with the provisions of this article” Laws 1917, p. 194, V.A.M.S. § 1677
the adoptive parents should inherit from the adopted child as in the case of a natural child. No attempt to adopt under the provisions of this statute was made.
In affirming the judgment of the Trial Court the Supreme Court of Missouri, Division 2, in Rumans, stated:
“Equity acts to protect the child. A deed of adoption or writing is not essential to a decree of equitable adoption. Taylor v. Coberly, 327 Mo. 940, 38 S.W.2d 1055, 1060[3]; Ahern v. Matthews, 337 Mo. 362, 85 S.W.2d 377, 383 [4]. The basis of the doctrine of equitable adoption ‘has been recognized to be that it is so inequitable and unjust to allow one to fail to comply with an agreement made with the parent or custodian of a child to adopt it, when he has taken the child at such an age that it had no will or choice of its own in the matter, that, after the child has performed everything contemplated by the relation provided for, the intended adoptive parent or his heirs will be estopped to deny an adoption.’ Thompson v. Moseley, 344 Mo. 240, 125 S.W.2d 860,862, * * *
“An equitable adoption functions to enforce the rights of the child under the agreement’ to adopt. The child is not chargeable with the adoptive parent’s failure to record the deed, and the enforcement in equity of the agreement to adopt should not confer additional rights upon the adoptive parent. The right of inheritance from the child is a different right from that of the child to enforce the agreement to adopt. That a legal or statutory adoption, binding on all persons in accord with the statutory provisions, differs from an equitable adoption, which is based upon contract for the protection of the child and binding on the parties or those in privity with them, is the effect of Menees v. Cowgill, 359 Mo. 697, 223 S.W.2d 412, 418, a case reaching this court upon transfer from the Kansas City Court of Appeals, Mo.App., 214 S.W.2d 561, 571.” (Italics added.)
As stated the Court in Rumans held that there was no legal adoption and that an equitable adoption could not inure to the benefit of the adoptive parents or their kin by permitting them the right of inheritance from the adopted child by estoppel.
If I am correct in my view that no legal adoption is shown here then if the Missouri case is right, and I believe that it is, the fact that an adoption by estoppel is shown making Helen Mar Hunnicutt an adopted child is not sufficient to confer upon.her *953adoptive parents or their kin the right to inherit from her.
For the reasons stated I concur in the majority holding reversing and rendering judgment in this case.
. See an excellent article in Yol. 36, p. 30, Texas Law Review, entitled Adoption by Estoppel, by Professor Edward W. Bailey.