(dissenting).
As a result of a careful examination of the record and briefs in this case, I feel impelled to respectfully dissent to the majority opinion. This is an action involving the rules of construction primarily of a written indenture or contract made by a third party for the benefit of an infant. On August 7, 1922, the New York Foundling Hospital, a corporation of the State of New York, as party of the first part, hereafter referred to as The Hospital, and Henry Lange and wife, Barbara Lange, both of Castro County, Texas, and both now deceased, as parties of the second part, hereafter referred to as the Langes, executed a written indenture or contract, witnessed by two witnesses, concerning the future interest of appellee, Martha. Bridget Schulte, then a child one year of age known as Bridget Lynch, hereafter referred to as the child.
The Hospital had the legal care, custody, control and power to make disposition of the child and by the expressed terms of the indenture agreement transferred the care and custody of the child to the Langes under such provisions as made its relationships to the Langes the same as if it were their natural.child. Under the terms of the agreement the child was obligated to live with and obey the Langes until she was 18 years of age, to be employed by them in and about their home and the affairs of the household under the instruction of the Langes and according to the child’s power, will and ability so to do and to honestly and orderly demean herself properly toward the Langes. In consideration of such obligation on the part of the child, the Langes promised and obligated themselves to keep, treat, maintain, support, educate and discipline the child as though she were their natural child and to permit the child to inherit from them at death and succeed to such a share of their property as she would have received under the law of descent and distribution had she been their natural child, regardless of whether they died testate or intestate. However the Langes reserved an option to return the child to The Hospital any time before she became 18 years of age if they so desired and by so doing the terms of the contract *895would have been nullified. But the Langes did not return the child but elected to keep her when they saw fit to legally adopt her on April 18, 1928, when she was about seven years. old, which adoption, as I view the matter, did not contravene or violate any terms of the indenture agreement between the parties.
The material facts were not controverted and were stipulated by agreement of the parties. Such stipulated facts reveal that the child was accordingly delivered to the Langes and continuously lived in their home conducting herself as an affectionate, obedient cjaughter should do and performing the household services required of her, as provided for under the terms of the indenture or contract, until she married Ray Schulte on or about October 15, 1940, with the consent and approval of the Langes when she was 19 years of age; that Barbara Lange died on or ' about August 9, 1949, leaving a will duly executed on July 2, 1934, devising all of her property to her surviving husband, Henry Lange, who died thereafter on or about February 9, 1951, devising by will duly executed February 27, 1950, one-half section of land in fee simple title to appellant, The New Subiaco Abbey, a corporation of the State of Arkansas, provided the said corporation would pay $1,000 in cash within one year to each of the testator’s sisters, namely: Elizabeth Lange, also known as Sister Xavier, O.S.B., and Mary Lange, also known as Sister Adeline, O.S.B., both of whom are appellants herein. The testator likewise devised and bequeathed the remainder of his estate to his said sisters, who reside in the State of Arkansas. His will further recited a previous gift made to appellee, Martha Bridget Schulte, and her husband as evidenced by a deed executed by him on January 11, 1950, conveying one-half section of land to her and her husband, Ray Schulte. The child was also given a $500 government bond as an additional gift. Neither of the Langes had been married before and no children were born to their marriage. The only child they ever had was appellee, their adopted child.
In her' pleadings appellee, Martha Bridget Schulte, joined pro forma by her husband Ray Schulte, sought specific performance of the contract in question, a copy of which she attached thereto and made a part thereof. Appellants answered with a number of special exceptions and a general denial. They further alleged as defenses lack of a valid consideration, that the adoption of the child nullified any agreement the Langes may have, made to devise their property to it, that the relinquishment of the child’s' custody for its enrichment was contrary to good morals and against public policy and that the previous gifts to ap-pellee and her husband by Henry Lange fulfilled any obligations the Langes may have owed the child. The case was tried to the court without a jury on May 13, 1952, and the same was taken under advisement by the trial court until May 16, 1953, when judgment was rendered for appellee as stated in the majority opinion.
Appellants present three points of error consistent with their claims made in their pleadings previously herein referred to and have made a very able argument in support thereof. While the majority opinion disposes of the case by discussing only one point, I believe it will be necessary for me to discuss all three points because of my views here stated.
A large part of the agreement not previously herein mentioned concerned periodical reports to be made to The Hospital by the Langes, the right of visitation privileges of the child by Hospital representatives, the necessity of the Langes procuring the consent in writing of The Hospital before they could transfer the custody of the child to others and other provisions not here material. However, since a proper construction of the provisions contained in paragraph VIII of the agreement is very material, the same is being here considered without recopying the said paragraph,, which is fully and satisfactorily set forth in the majority opinion.
It has been held that in order to give a proper construction of a written instfu*896ment, the entire contents thereof should be •considered together with the surrounding circumstances, in order to determine the intention of the parties at the time it was execiited (and not by their acts and conduct, which may have reflected different intentions some years thereafter). The intention should be gathered, if possible, however, from the contents of the instrument itself. Brown v. Payne, 142 Tex. 102, 176 S.W.2d 306. This court recently held that a written instrument, not alleged to be ambiguous, must be so construed as to •carry out the primary intent of the parties, .and the same must be considered as a whole and must be given its reasonable, natural .and probable meaning from the language used without resorting to subtle or forced construction that seem inconsistent with the language therein used. Brown v. Brown, Tex.Civ.App., 245 S.W.2d 995 (writ refused).
In applying the rules of construction, it appears to me that paragraph VIII is composed of two long sentences, each expressing a complete thought within itself, not conditionally depending upon the other. The first sentence provides that if the child is not returned to The Hospital or is not legally adopted by the Langes, nevertheless, it will be deemed that the Langes have elected to keep it and treat and maintain it the same as if it were their own natural •child according to the terms of the agreement. The Langes did not return the child but adopted it when it was about 7 years of age. Therefore, the Langes elected to keep the child when they adopted it. If the .second sentence in paragraph VIII bears any relationship to the first sentence, it means that if the Langes elect to keep the •child in any event, which they did, they will at their death unconditionally leave a child’s share of their property to the child •as governed by the laws of descent and distribution whether they should die testate or intestate. And the said sentence means the same thing if considered alone.
The indenture or contract can be' logically divided into three essential parts: {1) the authority of the' New York Hospital to make disposition of the subject (the child) about which there is no question, and the placing of the child with the Langes by the New York Hospital through its officers who said in part we “do hereby place and indenture the said Bridget Lynch to the said parties of the second part, as their own child in every respect”; (2) the commitment and promises made in behalf of the child that it would “live with and be employed by the said parties of the second part in and about their house and household * * * according to her power,- will and ability” so to do until she attains the age of 18 years. With reference to the promises or obligations the New York Hospital committed the child to perform, it was stipulated in part by the parties to this suit that “during the time she remained in the home, of Henry Lange and wife Barbara Lange, Martha Bridget Lange complied with the terms of the written indenture or agreement in every respect, giving them the affection and obedience a daughter should do, performing the duties in and about the house and household, and the affairs thereof and according to her power, will and ability” so to do. Then there can be no question but what the child performed all of the requirements made of her by her legal agent or custodian, the New York Hospital, as party of the first part; (3) then the promises or covenants made by Henry Lange and wife Barbara* Lange, parties of the second part, who obligated themselves to take, care for, discipline and educate the child and treat her as their natural child until she was 18 years of age (unless they returned her in the meantime, which they did not do) and finally at their death, the said child would inherit and succeed to such share of their property as she would have received under the law of descent and distribution had she been, their natural child, regardless of whether they died testate or intestate. The Langes kept faith with covenants and promises-made by them except for the unconditional obligation they made, as part of the consideration of the indenture or contract, to the effect that the child at their death, should inherit and *897succeed to such share of their property as a natural child should share under the law of descent and distribution whether they died testate or intestate. It is clear that according to this provision, if there had been other natural children of the Langes, such children would have shared equal rights with this child, in which event this child would not have been entitled to all of the Langes’ estate, but appellee, being the only child of the Langes, she would have inherited and succeeded to all of the estate of the Langes at their death under the law of descent and distribution, in which event appellants as party defendants would not be entitled to any of the estate of Henry Lange, deceased..
We should bear in mind that the indenture or contract here involved is not one for adoption, although I think its terms leave the way clear for the Langes to adopt the child without violating or changing any of the material terms thereof. I find no expressed terms therein which release the Langes from their inheritance obligation if they should adopt the child. Neither do I find any language therein contained that would have the effect of doing such a thing by implication. It also appears to me that the consideration expressed in the indenture or contract is a promise made for a promise made, or reciprocal promises. Such can be a valuable consideration and it is not essential that both parties be obligated to perform at the same time. Mutuality of obligation is essential, however, and the promises must be certain and not vague or indefinite. 10 Tex.Jur. 129-130, Sec. 75, and authorities there cited. When it appears that a decedent has agreed to make a devise or bequest as compensation for services performed it must be shown that such services have been performed before right of recovery can be enforced in an action for such. A performance of the promise is a condition precedent to a right of recovery on such a claim of devise or bequest. 44 Tex.Jur. 668, Sec. 123, and authorities there cited. In the case at bar it is admitted by stipulation that appellee had performed her part of the agreement in every respect.
The New York Hospital was a long way from the home of the Langes in Castro County, Texas, but it took every precaution in placing this child in a proper home when it was but one year old. The language used in the agreement of indenture is not questioned and no ambiguity is charged. The child was obligated to live with and be “employed” by the Langes in conducting the affairs of the Lange household under their instructions and according to the child’s power, will and ability to do so until she was 18 years of age. It would naturally be presumed that the Langes would not expect any valuable services out of the child as an infant but, certainly they must have expected something of her when she grew older. The Langes loved the child so well they adopted her when she was. seven years of age and cared well for her, but I fail to find that the adoption proceedings changed any of the material terms of the agreement. It is agreed by stipulation of the parties that the child complied with all of the promises and obligations made in the agreement on her behalf and it appears from the record that her promises were not vague or indefinite, although her duties under her employment were somewhat general to be performed under the direction of the Langes in their household.
This is an “agreement if indenture” and the word “indenture” is often used in the agreement. The child was placed by “indenture” and it was therein referred to as an “indentured child”. In construing the terms of the agreement, we must give the language and the words therein used their ordinary and natural meaning and must presume that the parties who used such knew the meaning thereof. The New Century Dictionary defines the word “indenture” as meaning a contract or sealed agreement but specifically it means “a contract by which a person, as an apprentice, is bound to service”. Webster’s International Dictionary gives such word a similar definition. As one of its meanings and in fact the specific meaning there given is the same in substance as that given by the New Century Dictionary. There was no evidence showing the child to have been *898“an apprentice” but the word “indenture” as used in the , agreement seems to denote service of some sort required of the child.
This is not a proceeding in which the relationship was severed between a natural parent and his child. Neither is this a suit involving a contract to relinquish custody of a child for the sole purpose of enriching it in the future.
It seems the principal cases upon which appellants rely for recovery are: Legate v. Legate, 87 Tex. 248, 28 S.W. 281; Logan v. Lennix, 40 Tex.Civ.App. 62, 88 S.W. 364; Hooks v. Bridgewater, 111 Tex. 122, 229 S.W. 1114, 15 A.L.R. 216; and Mulkey v. Allen, Tex.Com.App., 36 S.W.2d 198. In those cases natural parents transferred and relinquished their children to foster parents either by' written or verbal agreement, usually to be adopted, as the only consideration for a promise to devise property to such children, provided any question of gift or inheritance is therein discussed. The case at bar is distinguishable from such cases in that the agreement here under consideration is not one of relinquishment involving the child’s natural parents whose natural parental relationship to the child had already been severed by some means not here reflected by the record; in this action there is a consideration obligating the child to perform services, which she admittedly performed, and a situation in which the foster parents failed to perform in full according to the solemn covenants made in writing by them. The case most extensively quoted by appellants is Hooks v. Bridgewater, supra. In that case a 9 year old boy’s only surviving parent (father) contracted verbally to relinquish custody and control of the child to a bachelor, who never married, in consideration of the bachelor caring for and finishing the rearing of the child as if it were his own child and making it his heir of all of his property at death. The court there held that such a verbal contract involving the transfer of land violated the statute of fraud and was therefore void. The court also said there was no contract there for services but merely an attempt to bargain away the child and it held that a parent should not be permitted to relinquish or barter or bargain away his child even for its enrichment and sever the sacred relation between parent and child and that to permit such to be done was contrary to public policy. In the case at bar a child was not “bartered” or “bargained” away in violation of a sacred relationship existing between a parent and child. On the contrary, a homeless child, who had already lost by some means not reflected by the record the sacred relationship between it and its natural parents, was given an opportunity by a written agreement, as a result of interested parties, to be reared in a good home where it fulfilled and complied with solemn promises made in its behalf .to perform and render services as well as to behave and demean itself properly, for all of which it was to receive an inheritance from the foster parents. By reason of the agreement of indenture a helpless child was saved and given an opportunity to become a valuable citizen.
In the case of Cheney v. Coffey, 131 Tex. 212, 113 S.W.2d 162, 165, 114 S.W.2d 533, cited and relied on by appellants, two minor children were abandoned by parents and were later adjudged dependent children and verbally delivered by a court to foster parents who promised to rear and educate them and the father promised verbally to will his estate to them. The foster parents thereafter adopted the children after the natural mother returned and signed a transfer of parental authority. The foster parents were thereafter divorced and the children were awarded to their foster mother, soon after which their foster father died leaving both personal and real property. That case had many angles to it that clearly distinguish it from the case at bar. The court there held the statute of fraud was involved which foreclosed recovery and the actions of the lower courts were reversed and the cause remanded. However, the court there said:
“ ‘ * * * public policy is that principal of the law which holds that “no one” can lawfully do that which has a *899tendency to be injurious to the public or against the public good; * * * In a judicial sense, public policy does not mean simply sound policy or good policy, but it means the policy of a state established for the public weal either by law, by courts, or by general consent.’ SO C.J. p. 858.
“[7-12] The following quotations sufficiently indicate our view of the principles of law controlling the present question:
“ ‘According to the substantially unanimous current of authority, a contract to adopt or to take a child as an heir, though made with a third person for the benefit of the child, is enforceable by the child.’ 1 Am.Jur. p. 632.”
With reference to the acts there established, the court further said:
“ ‘These acts, neither as a whole nor singly, violated any public policy of this state. * * * How could it be said that an attempt to save a helpless child violated any public policy, * *
So it was here. A child was saved under the affirmative established principles of public policy.
With reference to public policy and the sacred right of parties to execute a binding contract the court said in the case of Erikson v. Hawley, 56 App.D.C. 268, 12 F.2d 491, 494:
“ ‘ “It must not be forgotten that we are not to extend arbitrarily those rules which say that a given contract is void, as being against public policy, because if there is one thing which more than another public policy requires, it is that men of full age and competent understanding shall have the utmost liberty of contracting, and that their contracts when entered into freely and voluntarily, shall be held sacred, and shall be enforced by courts of justice. Therefore we have this paramount public policy to consider — that we are not likely to interfere with this freedom of contract.” That is hut saying that sub-stamtial justice and the obligation of contracts wre entitled to superior consideration to the vague and indefinite notions of public policy, urged to avoid a contract for which the party has received full consideration. Such a defense always comes with a bad grace from a party to the contract who has received full consideration, and enjoyed the fruits of the contract that he alleges to have been made m contravention of law or principles of public policy.’ ”
In so far as the record before us reveals, the Langes had a right to execute a valid contract whether it may seem to be the acts of normal people 30 years later or not. According to the rules of construction and the language used by the parties in the contract here under consideration, it appears to me to be a valid and binding contract that should be enforced by the courts of justice.
I do not believe appellee, Martha Bridget Schulte, waived any rights here asserted by her in her failure to contest the wills executed by her adopted parents or that she by reason thereof is estopped to make the claims here made. First, because appellants did not plead such and have not made such claims either here or in the trial court. Then the record does not reveal when either of the wills was admitted to probate. However, the record does reflect that an inventory and appraisement was sworn to, filed and approved by the probate court in the estate of Barbara Lange, deceased, on January 3, 1950, after her death on August 9, 1949, and that the same showed a community estate between her and Henry Lange of the value of $61,000. About a week after the approval of such inventory and appraisement Henry Lange by deed of conveyance executed on January 11, 1950, gave appellee and her husband a half section of land valued at $32,000 which, together with the $500 bond made payable to Henry Lange or Martha Bridget Schulte, made the total amount given appellee a little more than half the value of the community estate. There was no occasion for contesting the will of Barbara Lange when Henry Lange, in recognition of the child’s rights under the terms of the agreement of indenture, gave to ap-*900pellee even a little more than her mother’s part of the community estate. Naturally appellee accepted it in compliance with the terms of the agreement in question.
Then the very next month thereafter and 28 years after the agreement of indenture had been executed for the benefit of the child, Henry Lange on February 27, 19S0, executed his will leaving none of his property to appellee, although it is admitted that she had performed all of the requirements made of her under the terms of the contract in question. The record does not reflect when Henry Lange’s will was admitted to probate, but it does reflect that the inventory and appraisement returned therein was sworn to and approved by the probate court on May 21, 1952, more than a year for some reason after Henry Lange died February 9, 1951. This suit was filed by appellee on May 5, 1952, some two weeks before the inventory and appraisement in the Henry Lange estate was sworn to and approved. It must be assumed therefore that this suit constitutes a contest of Henry Lange’s will.
I do not believe the acts of Barbara Lange 12 years after the agreement of indenture was executed and the acts of Henry Lange 28 years thereafter would conclusively reveal their intentions at the time the agreement was executed. Neither do I believe Martha Bridget Schulte waived any of her rights or is to be estopped from asserting them here on any grounds reflected by the record herein.
Appellants contend that the gifts made to the child by Henry Lange during his lifetime fully complied with the obligation of the Langes. However, it is my opinion that the agreement of indenture obligated the Langes to leave a child’s share of their property to it under the law of descent and distribution if they elected to keep it, whether they adopted it ®r not and whether they died testate or intestate. They elected to keep the child and adopted it. It being their only child, it was entitled to all of their property under the law of descent and distribution. If such be true a partial compliance of its terms by the Langes by giving the child and her husband only a part of their property did not fulfill their obligation to bestow upon her a child’s part in accordance with the law of descent and distribution at their death. Henry Lange and his wife, Barbara Lange, both made such a solemn covenant. When Henry Lange, after receiving by will his wife’s half of the community estate, gave the child a $500 government bond and deeded one-half section of land to it about five months after Barbara Lange died, leaving himself another half section of land and other personal property, he had given the child approximately only the foster mother’s half of the community estate. According to the solemn covenant he had made, the child was entitled to the other half section of land and the rest of his estate when he died.
For the reasons stated it is my opinion that the trial court was justified in finding and concluding that the agreement of indenture contained a valuable and binding consideration; that the adoption proceedings did not nullify any part of the terms of the agreement with reference to inheritance ; that the terms of the agreement were not contrary to good morals and did not violate public policy; that the previous gifts to the child of land and a government bond by Henry Lange did not fulfill the obligations of the Langes to the child under the indenture or contract; and that the agreement of indenture was a valid and binding obligation. Appellants’ points to the contrary should, in my opinion, all be overruled and the judgment of the trial court should be affirmed.