154 Iowa 507 | Iowa | 1911
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 wit
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
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.