in the form of an indenture binding him to entitled to receive his reward; and that deceased until he became twenty-one years equity will enforce this understanding, deold; that this indenture was dated January spite the failure of the law. On the other 29. 1868; that his name was then Frank Creer, hand, it is contended by complainants that but subsequently deceased and his wife, act- the case is barren of any proof of contract to ing under the statute then in force, filed their will or devise the property to defendant, only petition in the probate court declaring their as defendant might have inherited it, had intention to make him their heir at-law, and there been a law under which he might have praying that his name be changed to Frank- been adopted, and had legal proceedings been in P. Wright; that the order was accord- had under such law to accomplish such puringly made on January 30, 1875, defendant pose; that there is no such thing as adoption being then about eight years old; that defend-known to the common law; that the proofs 'ant remained in the family, and at the time of fail to show an agreement, except the agree the death of Phineas R. Wright was twenty-ment to adopt, which has failed because of two years and three months old; and that he the unconstitutionality of the statute; and had performed his duty to his adopted par- that the defendant's claim is set up, apents faithfully, and given them his entire parently, to have the court find an agreement time, never receiving any compensation for to let him have the estate, and then enforce such services. It was testified by Mrs. Rich-it. It is also contended by counsel for comardson on the hearing in the court below that plainants that the order of the circuit court it was understood between her husband (the made upon the appeal from the probate court deceased) and herself that the defendant is an adjudication upon the question here in should, as the result of the adoption, be their controversy and is res judicata as to all matheir, and ultimately come into possession of ters here involved. their property, and that it was always so in- The statute under which defendant was tended. She was asked: “Did that inten- adopted was held unconstitutional in People tion continue to your knowledge, during v. Congdon, 77 Mich. 357. It is apparent, Mr. Wright's lifetime?" Answer. "It did." however, that Phineas R. Wright and his Question. "Do you know whether or not Mr. wife supposed that defendant's adoption had Wright expressed from time to time a belief been successfully accomplished by the prothat that was successfully accomplished by ceedings taken for that purpose. During all the adoption papers?" A. "He told me a these years they treated defendant as their son number of times that he had seen the lawyers and heir, and Mr. Wright died in the belief about it, and they all said it was just as that he would inherit the property the same safe." Q. "State whether or not the defend- as an own son would have done. So careful ant, to your knowledge, understood that he had the parties been to show him their love was to be the heir-at-law?" A. "He ex- and affection, that he never knew until after pected— He did not know but what he was Mr. Wright's death but that they were his our child until after Mr. Wright's death." own parents. During all these years he had The witness further testified that there was rendered them filial affection, and given them never any talk between herself and her hus- his labor upon the farm, with the belief that band about paying the defendant in any way, at their decease he would inherit all they and that about three months before Mr. possessed. We think there may be said to be Wright's death he was at a neighbor's house, a contract, impliedly at least, that defendant and was speaking about these heirs coming was to have this property, and that there had up to break down this adoption, when he been such a performance on the part of the said: "Rather than have it done, he would defendant as to take the case out of the operado most anything, for he intended his prop- tion of the statute of frauds. If this arrangeerty should go to Frank, if he used it up in ment so solemnly made by Mr. and Mrs. four weeks after he died." The witness Wright cannot be carried out, -if strangers further testified that Mr. Wright meant and may now step in and take this inheritance expected that Frank would inherit the prop- which the defendant has been led to believe erty, the same as a son, and that he died in would be his, -the defendant would be most that belief. After Phineas R. Wright's outrageously wronged. He has lived since death, proceedings were taken under the his adoption upon this farm, in the full bestatute, in the probate court for Jackson lief that he was under his own father's roof, county, to determine who were the heirs-at-and in the full expectation and belief that, law. Upon the hearing in that court, the as a son and only child, he would inherit it. defendant was so adjudged. An appeal was taken to the circuit court, and on the 1st of February, 1890, the proceedings of the probate court were reversed, and the complainants in the present case adjudged the heirsat-law.

Defendant claims that in effect, and by force of the arrangement actually made, there was an agreement upon the part of Phineas R. Wright to reward him for his services and love and affection as a son, with such property as he might be seised at his death; that defendant, acting under that belief, performed the duties which made up the consideration of the contract, and is therefore

It would be technical, indeed, to say, from all these circumstances, no contract could be implied which a court of equity would enforce to save the rights of the defendant.

There are two cases arising in the New Jersey equity court which sustain this doctrine,- Van Dyne v. Vreeland (decided in 1857), 11 N. J. Eq. 370, and Van Tine v. Van Tine (decided in 1888), reported in 1 L. R. A. 155, in which Van Dyne v. Vreeland, supra, is cited and approved. In the first of these cases, an uncle had made an agreement with the father of an infant child that he would adopt the boy, and after the death of himself and wife all the property should go

to him. There was no formal adoption, but the child lived in the family twenty-five years, assumed their name, and treated them as parents. The court held that there was performance on the part of the child, and the agreement could be enforced. In the latter case, a girl eight years old was adopted by Mrs. Stryker, who assumed the obligation, by parol, with her parents, to treat the girl as her own child, and make her her heir. The girl remained in the family, giving her time and affection to Mrs. Stryker, with the expectation of becoming Mrs. Stryker's heir. The court found that there was a contract with the child, that the contract was performed on her part, and therefore she was entitled to receive the property, which was real estate, as in the present case. The doctrine of these cases finds support in Rhodes v. Rhodes, 3 Sandf. Ch. 279, 7 L. ed. 852, and Sutton v. Hayden, 62 Mo. 101. In Shahan v. Swan, 48 Ohio St. 25, the supreme court of Ohio expressly recognize the doctrines of these cases. It there said: "Notwithstanding that it is the established rule in Ohio that the payment of the consideration, even in the personal service of the party seeking relief, does not ordinarily constitute such part performance as will take a case out of the operation of the statute, we do not wish to be understood to hold that cases may not arise where specific performance of a contract in parol may be had on the ground that the consideration had been paid in personal services not intended to be, and not susceptible of being, measured by a pecuniary standard." This doctrine is also recognized in Sharkey v. McDermott, 91 Mo. 647, 60 Am. Rep. 270. We are aware that the principle laid down here is not supported in Wallace v. Rappleye, 103 Ill. 229, and Wallace v. Long, 105 Ind. 522, 55 Am. Rep. 222, and some other linois and Indiana cases, as well as in Shearer v. Weaver, 56 Iowa, 578, but we think the better reasons support the conclusions reached by the New Jersey court.

to adjudicate and determine who are the legal heirs or legal representatives, and entitled to such lands. Section 3 of the Act provides that such "adjudication shall be entered on the journal of said court, and which entry, or a duly certified copy thereof, shall be prima facie evidence of the facts therein found." The inquiry to be instituted under that statute would give the probate court no jurisdiction to determine the questions involved in the controversy here. That proceeding was to determine who were the legal heirs or legal representatives entitled to take. Here the claim set up by the defendant by way of cross-bill is for the enforcement of a contract, which he insists that equitably he is entitled to have enforced against the legal heirs. The probate court had no jurisdiction to hear and determine that question, and, on appeal from the probate court, the circuit court would have no such jurisdiction. Nester v. Ross' Estate (Mich.) 57 N. W. Rep. 122; Linneman v. Moross' Estate (Mich.) 57 N. W. Rep. 103.

It follows that the decree of the court below must be reversed, and decree entered here dismissing complainants' bill, and finding that the title to the estate of Phineas R. Wright vested, by reason of this contract, at his de cease, in the defendant, the same as if he had been the son. By reason of the stipulation between the paries, no costs will be allowed to either party.

Grant, J., concurring:

Each case of this character stands upon its own peculiar circumstances and facts, upon which relief is granted or denied. The pres Il-ent case forms no exception. Mr. and Mrs. Wright were childless. They desired to adopt some one as heir, who should inherit their property. They first took the defendant under articles of apprenticeship. The adoption It is contended, however, that in the cases superseded these articles, and from that time referred to a contract was shown to have been until the date of his majority the relations entered into between the party adopting the existing between them were understood by child and the parent, or some one who had all to be those of parent and child, and not the right and authority to make the contract. of apprentice and employer. In no more We think it has already been sufficiently solemn manner could Mr. Wright and his demonstrated that such a contract is to be wife have declared that upon their death defound in the arrangement made for defend-fendant should receive their property. It is ant's adoption, and the acts of the parties subsequent thereto, and that it has been fuliy performed on the part of the defendant, so that it is taken out of the operation of the statute. It was expressly held in Carmichael v. Carmichael, 72 Mich. 76, 1 L. R. A. 596, that a person may enter into a valid agreement by parol, binding himself to make a particular testamentary disposition of his property. In that case, Van Dyne v. Vreeland was cited with approval.

One other question arises. Are the proceedings had in the circuit court res judicata? These proceedings were taken under the provisions of Act No. 278, Pub. Acts 1887, which gives to any person claiming an interest in the lands to which deceased had title at the time of his death the right to apply to the probate court, and gives that court power

no reply to this to say that, in his lifetime, Mr. Wright might have made other disposition of his property. He did not do so, and died in the belief that defendant would have it, and that he was his legal heir. They gave defendant their own name, and by their conduct, language, and treatment represented to him that he was their own son. He lived with them upon this understanding until some time past the age of majority. He had a right to rest and act upon the belief that he was the legal heir. So long as his reputed father and mother chose to let him repose in this belief, others had no right to interfere. Equity is clearly with the defendant, and, if relief cannot be granted, it must be because the strict rule of law interferes, and permits the accomplishment of an act of the greatest injustice. Unfortunately, the law

in regard to adoption was found to be unconstitutional because the real object of the act was not expressed in its title. Each party acted in the undoubted belief that the defendant, upon the death of Mr. Wright,dered. Unfortunately for him, however, the would take the property. Can equity give validity to such intention, in the absence of an express contract? I see no reason why it may not. Defendant rendered services upon the faith of his relationship. Those services were accepted in reliance upon such relationship, declared in the most solemn manner. There are no children interested. If there were no collateral heirs, the property would otherwise escheat to the state. While it is true, in the cases cited from New Jersey, that the parties who took the complainants to live with them said that if they would remain they should have their property, still great stress is laid upon facts and circumstances similar to, but not as strong as, some in the present case. As I read those authorities, they are not based solely upon the existence of a promise. This is a case where, in my judgment, equity should declare that to be done which the parties clearly intended. I therefore concur in the opinion of my Brother Long.

Hooker, J., dissenting:

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 rentestimony conclusively shows that the intestate never made any such promise. The indentures of apprenticeship were 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 intestate may be held to have promised to make him 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. I am unable to concur in the opinion of my The evidence, so far as it appears in the rec Brother Long. The defendant admits the acts ord, shows an intention on the part of the which constitute waste, unless he can estab-intestate to allow his property to go to the lish his right to the premises under his defendant. Whether the complainants could answer, which partakes of the nature of a have produced evidence to the contrary, we cross-bill. The undisputed testimony shows have no means of knowing, as they appear that he was bound to the intestate in 1868, to have relied upon their legal rights. Perwhen an infant of less than two years of age. haps, however, it is fair to infer that they This imposed upon him the obligation of ren- could not, and, if so, it is a hardship upon dering service to his master until he should the defendant to be deprived of the property. reach the age of twenty-one years. In 1875- But he was under the obligation to render the he having lived with the intestate during the service to the intestate before the adoption, interval-proceedings were had for his adop and he incurred no further obligation by reation under the statute, and with the intention son of the adoption. It is therefore difficult of making him the heir of his foster parents. to see how the case differs from any other These proceedings are regular, but unfor- nudum pactum. The disappointment is one tunately the act was declared unconstitu- that comes from finding that he has labored tional some years later, and hence the defend- under a mistake in relation to his ancestry ant did not become the heir of the intestate and ancestral rights. I find no case which by force of the statute. If he can be held holds that proceedings like those shown in to have been his heir-at-law, it must be by this case can be construed into a contract to reason of our ability to find that the intestate convey property by will or otherwise, where made a valid contract to make him such. the evidence conclusively shows that the unWhether a man can, in the absence of stat- dertaking was merely to adopt and make an utory authority, make another his heir, and heir of a child, subject to the right upon the procure recognition for him as such, is a part of the foster parent to cut him off as he question not discussed. If he could, that might his own child, especially where the question is concluded for this case by the ad- child adopted was not only ignorant of the judication by the circuit court, which, in the transaction, but already under a legal obproceeding appealed from probate court, in ligation to perform all of the services which which all of the parties were heard, de- constitute the consideration for such agreetermined that he was not such heir, and that ment. I think the decree of the circuit court the complainants were the lawful heirs of the was correct, and should be affirmed, with intestate. Accordingly, we find that the de- costs. fendant 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 23 L. R. A

Montgomery, J., concurred with Hooker, J.

KENTUCKY COURT OF APPEALS

NOTE.-Liability of charitable institution for negli- | ages cannot be recovered from a fund held in trust.

The court expressly approved the rule that dam-Mo. 479, a city is held not liable to a nonpaying paL. R. A.

See also 23 L. R. A. 581; 25 L. R. A. 602; 27 L. R. A. 296, 840; 28 L. R. A. 394, 31 L. R. A. 224.

Somewhat akin to these cases is the decision in Clark v. Missouri Pac. R. Co., 48 Kan. 654, to the effect that a railroad company is not liable for al-ployed on the highways, while the managers were leged negligence of its local surgeon in delaying the amputation of an injured limb of an employé, where it did not appear that the company was under any legal obligation to provide medical or surgical aid for him.

That a county which employs physicians to attend poor persons is not liable for his negligence ined by the mayor and paid from the city treasury, treatment of them is decided in Summers v. Daviess County Comrs. 103 Ind. 262, 53 Am. Rep. 512. But this decision is based, like those about city hospitals, on the broad ground that public corporations are not responsible for the negligence of their officers in the exercise of governmental powers, and therefore has little bearing on the present question of liability of charitable institutions.