
    Nellie Finger, Appellant, v. Lena Anken et al.
    Wills: contract to devise: evidence: sufficiency. The evidence in this action is reviewed and held insufficient to establish an agreement on the part of decedent that if plaintiff would live with his family he would leave her a portion of his estate.
    
      Appeal from Scott District Court. — Hon. A. P. Barker, J udge.
    Friday, June 9, 1911.
    Suit to establish title in two-thirds of the estate of David Anken, deceased, resulted in the dismissal of the petition. The plaintiff appeals.
    
    Affirmed.
    
      Wade, Dutcher & Davis and Ely & Bush, for appellant.
    
      Lane & Waterman, for appellees.
   Ladd, J.

The parents of plaintiff resided at Rock Island, 111. Her mother died in 1880, and' her father three years afterwards. Three children 'survived them. Albert, who was adopted by Charles H. Ritter, Thomas L., who was born in 1871 and lived with Ritter from 1888 until 1887, and the plaintiff. The latter was cared for by one Marshall for 'about a year 'and a half after her mother’s death, and then took up her home with Ritter, who, at the father’s instance, undertook to find her a •suitable home. In doing so he addressed a letter to his acquaintances David Anken and wife explaining the situation and the joy of having an adopted son, and suggesting that he had “a bright, nice and very good looking sister as sweet as a peach whom we have now in our family and for whom we are looking out for a good home;” that he had concluded to inform them of the fact, and requested that they let him know as soon as possible if either had a disposition to adopt -a child. As a result, plaintiff went to Ankens in the fall or winter of 1885 for about a month, when, according to the testimony of her brother, Thomas, she returned to Ritter’s home, where 'She remained nine months or a year, and then returned to the home of Anken, where she lived until her marriage October 19, 1898. David Anken died testate October 19, 1908, and his will leaving all his property to the defendant, his widow, has been admitted to probate. The plaintiff claims two-thirds of the estate because of the alleged agreements testified -to by Thomas L. Clinton. According to this witness, Anken repeatedly requested Ritter' after plaintiff’s return to him to 'allow Anken to take her to live in his family, and that he was present when the finally arranged tha-t Mr. Anken should have her. He testified that: “Mr. Anken said to Mr. Ritter, ‘You better leave me have Nellie, and better leave me take her over and live with me.’ And Mr. Ritter said: ‘Mr. Anken, if you want to take Nellie, you must take her over and adopt her as your own child, and leave her have a child’s share in your estate. If you will do that, you can have Nellie.’ Mr. Anken agreed to that. He said: ‘Charlie, I will agree to that. I was very much attached to Nellie the last time she was over.’ ” The witness further testified that: “Mr. Ritter turned right around to him at the desk, and said, ‘Tom, don’t you think that would be far better for Nellie? Anken is better fixed than I am, and could do more for her, and, in fact, Nellie would be well fixed.’ And I -said, ‘I think it would; whatever you agree to.’ ” The witness was then fourteen years of age. He testified, further, that he went to Mr. Anken’s home at -different times to visit his sister, and that he and Anken would go over -to the Turner Hall and have beer and that at one time he said: “Mr. Anken, do you think it is anything more than right that I ask you to make out these adoption papers for my sister as you 'agreed 'to with Mr. Ritter.” And he said then, in ■substance, to him: “ ‘I went up to have them made out at first, but there was -some hitch in it about your mother’s maiden name. Nellie could not give it. Could you?’ And I said, ‘No; I don’t know it myself,’ 'and he said, ‘I will have those papers made out, I have been putting it off.’ ” The witness also testified that shortly after he was married on November 22, 1893, he had a conversation with Mr. Anken at the hall where they had gone for beer, when he said to him: “ ‘Mr. Anken, I am married and have a home of my own, and I want Nellie to come and stay with me -and my wife, and she would be company for her while I am out on the road.’ And he said: ‘No, no; I could not think of it now. I could not part with Nellie at all. She is just the same as my daughter.’ And I said, ‘Mr. Anken, you have never done what you agreed and made them papers out.’ And he said, ‘Tom, you leave her with me. I could not think of parting with her. You leave her with me, and I will fix up the papers and she will have a child’s share in the estate the same as my own child.’ And I said: ‘Mr. Anken, if you will do that now, as you say, why it is all right. I have not got nothing, and that would be better for my sister in the future.’ ” This is the only direct testimony concerning the alleged arrangement under which the plaintiff made her home with David Anken and his wife. That Anken and his wife became greatly attached to her and regarded her with practically the same consideration and affection as though she had been their own daughter is put beyond cavil by this record. In all respects she was treated as a daughter, and, in return, gave to them a daughter’s confidence and love. Moreover, the record leaves little, or no doubt, of decedent’s expectation as well as that of his wife that plaintiff should Share generously in the property he might leave, lie talked of willing a portion -to her, and mentioned what she would do when she had his property; while his wife seems to have repeatedly assured her that she would be well paid for all that she did in thein interest. But evidence of this kin-d furnishes slight, -if any, -corroboration 'of the alleged contract. While it was consistent with an agreement -to leave - property to plaintiff, it was not inconsistent with the -absence of such an agreement. ‘ It no moro than indicated the cordial -and -affectionate relations existing between the parties and evidenced the intentions then existing. But the testimony of Clinton that decedent undertook to adopt plaintiff finds stong corroboration in the testimony of several witnesses, and much of appellant’s argument proceeds on the theory that, if decedent promised to adopt, plaintiff is entitled to recover. If so, such recovery must he for damiages resulting from the breach of such contract or by way of specific performance. The latter would now be impossible owing to the death of Anken, and, moreover, it is doubtful whether, as the manner of adoption is statutory with terms specifically prescribed' and exacting written consent of the parties and relinquishment by those possessing rights to and over the child, specific performance ever would be decreed in such a case. See Kofka v. Rosicky, 41 Neb. 328 (59 N. W. 788, 25 L. R. A. 207, 43 Am. St. Rep. 685); Long v. Hewitt, 44 Iowa, 363.

Even if this were possible, however, no advantage could be attained thereby for -adoption would not confer rights greater than that of a natural child and these would be of no avail as against disposition of property by will. Nor is it perceived on what theory damages might be recovered, for had plaintiff been adopted as we think, Anken promised her status would not have been other than that of a daughter, and this would not have entitled her to any interest in the property as against its testators disposition. To authorize a finding in plaintiff’s favor, there must have been something more than an agreement to adopt. There must have 'been a distinct promise that upon his death plaintiff should share in his estate.

No one testified to this other than Thomas L. Clinton, and his testimony in -this respect finds no corroboration save its consistency with decedent’s expectations as mentioned above. The persons whose conversations he undertook to repeat -after -the lapse of more than twenty-three years have departed this life. His story is without contradiction, and its credibility can only be tested by comparison and the ordinary rules of human conduct. Holmes v. Connable, 111 Iowa, 298; Watson v. Richardson, 110 Iowa, 673. He was then but fourteen years of age, and his subsequent testimony indicates 'his anxiety not that Anken leave a child’s share in his property, hut that lie execute adoption p apere, and this is true of other witnesses testifying to conversations with decedent concerning the adoption of plaintiff. Thus no mention was made of this feature of the alleged arrangement with Ritter in Clinton’s talk with Anken at Turner Hall, and in that after his mai’riago he does not claim to have spoken of his promise as to property, but says at that time that decedent after saying he would fix up the papers added “and she will have a child’s share in the estate the same as my own child.” This if said was entirely consistent with the thought that he was expressing his notion of the effect of such adoption. It did not purport to be an admission that he had agreed to leave her a child’s share of his estate. She was then with him under the arrangement with Ritter, and Clinton had no control of her. He was without right to her custody, and no court properly could have given it to him even if he had elected to take her with him. Even if the conversation between decedent and Ritter took place, it is not at all clear what the parties intended. If, as Clinton testified, Ritter said to Anken, “If you want to take Nellie, you must take her over and adopt her as your own child and leave her a child’s share in your estate” — and he answered that he would “agree to that,” what was the understanding, that the plaintiff was to be assured a child’s share of the estate independent of the adoption or- as the result of adoption? If it was not the intention that the child’s share should be in pursuance of the adoption, what was meant thereby? Was she to have all that she would have inherited had she been his own child or merely to be treated as though his child in the distribution of property after death? The adoption would confer the right to inherit and for this reason, - the parties in what they said anight well have had this in mind. Moreover, the witness, after the lapse of so miany years, could not well be expected to reproduce the exact language of the parties, and, having in mind, the effect of adoption on their child’s property rights, may have confused his conclusion with respect thereto with what was 'actually said. His subsequent anxiety concerning adoption must have been owing to such adoption conferring the right of inheritance, for no other advantage is apparent from the record. If there was such a contract, she knew of it, and yet she was shown to have stated that she would acquire no property of deceased except by will, and, though aware of its contents, induced decedent to sign it shortly before' his death. Her excuse is that she did so on the assurance of his wife, the defendant, that the lattes would do right by her. If she were entitled to a child’s share of the estate, why barter it away on an indefinite promise of another to do right? Again, according to her story, while she was sitting at the bedside of decedent in the night following, he inquired “Where is that' paper [the will] ?” and she responded, “I haven’t got it” (though she had placed it in a black bag). He asked, “Are you sure?” and, after reaching the bed added: “Nellie, do you know I am afraid we are stuck.” She responded: “Don’t worry, papa; mamma will do the right thing by me,” and with the exclamation, “No, no,” the conversation ended. If he had disposed of -his estate in violation of his obligation to her, why did she not produce the will and enable him-to undo the wrong? Again, she testified that, when she and the widow were standing by the grave of' decedent, the latter had said: “Poor soul, he did not want me to have it all. 0, Nellie, if the relations knew this, they might contest it.” And that she replied: “Mamma, I will stay with you through thick and thin. You have got to do the right thing by me,” and the widow so promised. If the will deprived her of the estate, and its execution was a fraud on him whom she loved as a father, would she have given it up for .such a promise? Her husband attended to the probate of the will, and not until it had been admitted to probate, and plaintiff was denied financial 'help by the widow, did she .raise any objection to it. The record leaves little doubt but that plaintiff desired deceased to leave his estate to the widow, and that this was with the notion that the latter would deal more generously with her financially than decedent. Her conduct as well as that of her husband was entriely inconsistent with any legal claim on decedent for any interest in his estate. Only upon the widow’s abrupt and somewhat discourteous refusal of assistance was the claim now urged insisted upon. Nothing will be gained by a more extended review of the evidence.

Enough has been referred to to disclose that it fails to establish an agreement that, in consideration of plaintiff living with decedent, he would leave her a portion of his estate by that strictness of proof exacted in such cases. See Stiles v. Beed, 151 Iowa, 86.—Affirmed.  