250 P. 823 | Mont. | 1926
The court erred in denying the motion to quash the alias
summons and the service thereof for the reasons stated in the motion. This is an action in personam and not an action inrem, and is not an action in which service of summons and complaint may be made by substituted service. It is generally held that an action for the specific performance of a contract is an action in personam. The complaint shows that the action is based entirely upon the idea of compelling certain persons to do some certain thing. The following cases show what is an actionin personam, and that service of process must be personal:Silver Camp Min. Co. v. Dickert,
Where it appears that persons claiming to be heirs are nonresidents of the United States a proceeding to determine heirship is mandatory, and in this way alone can the heirs of the estate be legally found and authoritatively ascertained. *264
(State v. District Court,
"Public policy requires that claims against the estate of the dead should be established by very satisfactory evidence, and the courts should see to it that such estates are fairly protected against unfounded and rapacious raids." (Van Slooten v.Wheeler,
Oral declarations that declarant had adopted one as his heir are insufficient to show a legal adoption which can only be made as provided by statute. (Powell v. Ott (Tex.Civ.App.),
A parol agreement, under which a child went to reside in the family of a person, that, if the child's parents would allow such person to adopt the child, he would take her to his home, and when he died she should have his property as though she were his own daughter, is within the statute of frauds, part of the property left by him being land, and the contract being entire. (Grant v. Grant,
A contract to make a will, if in parol, must be established by the testimony of disinterested witnesses. (Hamlin v. Stevens,
Statements of an intention to make a will do not amount to a contract. (Mitchell v. Pirie,
The following cases are all cases wherein an oral contract, such as the one here in question, was specifically enforced:Owens v. McNally,
Thomas v. Maloney,
A footnote to the case of Baumann v. Kusian,
On October 27, 1923, one Anna Gravelin filed in the district court of Silver Bow county a complaint in which she named all of the individual defendants herein as heirs at law of Euphemie Leger Vautour. The complaint alleged that Rosamund Vautour died in 1918, leaving his wife, Euphemie, surviving him, and that all of the property acquired by either of them then stood in the name of the wife. It is then alleged that the wife died on the fourteenth day of April, 1922, leaving an estate consisting of real and personal property in Silver Bow county, and that the individual defendants would take said property as the heirs at law of Euphemie Leger Vautour, except for the agreement set up in the complaint. The complaint then alleges that the plaintiff was born in 1889 and came, with her mother, to the home of the Vautours in 1890, where she lived for a period of two years, when the mother entered into an agreement with the Vautours that she would yield the care, custody and control of said child to the Vautours in consideration of their agreement to adopt said child, care for her, educate her, and treat her as their own child and would each make a will leaving to said child the share in their property which a natural child would receive, and that she "would receive a child's share in their estate" at their death. The complaint alleges that the father of said child had deserted the mother and child, and that at the time the agreement was made his whereabouts was unknown and that the mother was the guardian of the child. *269
It is further alleged that the mother and child performed all the conditions of the agreement, and that the Vautours did receive the child and care for her, educate her, exercise custody and control over her, and lavish affection upon her, and, in fact, treat her as their own child until she became of age; that plaintiff was given and took the name of Anna Vautour and addressed the Vautours as father and mother, and rendered service, obedience and affection to them in the same manner as would a natural child.
It is then alleged that the Vautours failed to evidence the adoption in the manner and form prescribed by law, which fact was not known to plaintiff and her mother until after the death of Rosamund Vautour, and that each of the Vautours failed to leave a will as agreed. The prayer of the complaint is that the court enforce the contract of adoption, declare the defendants holders of the estate in trust for the plaintiff, and decree that the plaintiff is entitled to the distribution of the whole estate.
Summons having been issued and returned unserved for the reason that none of the defendants resided within the jurisdiction of the court, an alias summons was secured and publication thereof made in the manner prescribed by law. The affidavit for publication of summons gives the last-known residence of all defendants, and shows that most of them were residents of Canada, and the others of states other than Montana.
The defendants named in the original complaint appeared by counsel and duly moved to quash the service on the ground and for the reason that all of the defendants were nonresidents of the state of Montana and the action was one in personam, in which service by publication could not confer jurisdiction of the persons of defendants on the court. This motion was overruled, and the defendants saved their exception to the ruling, and thereafter a bill of exceptions thereon was duly served, settled and allowed. Thereupon the defendants moved the court that the plaintiff be required to separately state *270 and number her alleged causes of action, to-wit: (1) For the specific performance of a contract of adoption; (2) on a contract to make a will; and (3) to have plaintiff declared the owner of and entitled to the entire estate. This motion was denied, and a bill of exceptions thereon settled and allowed.
Thereafter the plaintiff filed herein an amended complaint, being the same as the original complaint except that John Lindsay, as administrator of the estate of Euphemie Leger Vautour, was made a defendant. No motion was made either by the original defendants or the defendant administrator to require the plaintiff to separately state and number the alleged separate causes of action set out in the amended complaint, but by separate demurrer John Lindsay and the individual defendants challenged the sufficiency of the complaint upon the grounds: (1) That it did not state facts sufficient to constitute a cause of action; (2) that causes of action were improperly united therein; and (3) that it was ambiguous and unintelligible in the particulars stated. These demurrers were overruled, and thereafter the defendants answered, denying the allegations of the complaint and affirmatively alleging laches, the statute of frauds, and the statute of limitations. Replies were filed denying the affirmative allegations of the answers, and issue thus joined November 10, 1924. In July, 1925, the plaintiff died and thereafter the administrator of her estate was substituted as plaintiff.
The cause was tried on October 30, 1925, Hon. George W. Winston, of the third judicial district, presiding. At the opening of the trial defendants objected to the introduction of any evidence on the ground that the court was without jurisdiction and that the complaint did not state facts sufficient to constitute a cause of action. These objections were overruled, and both sides introduced evidence, and at the close of the trial the court took the matter under advisement, and later made findings of fact and conclusions of law on all points raised in the pleadings and in the evidence, in favor of plaintiff. Judgment followed in accordance with the findings and the prayer *271 of the complaint, and from this judgment the defendants have appealed.
There is but one appeal before us, the notice of which is signed jointly by counsel for John Lindsay, as administrator, and counsel for the individual defendants, and recites that "the defendants hereby jointly and severally appeal" from the judgment. A joint brief was filed in which, however, such joining counsel separately specify error. Counsel for the administrator has numbered his specifications successively from 1 to 11, but No. 11 predicates error upon nine findings of the court, merely designating them by number, and upon the action of the court "in making each and all of the conclusions of law set forth," while counsel for the individual defendants makes seventeen specifications of error raising the same and additional questions. Having thus defined the issues on appeal, counsel again get together in a joint argument, which, however, deals only with certain of the questions presented by the specifications of error, does not refer directly to any of those specifications, and so mingles the presentment of the points involved that we have found it rather difficult to follow many of the arguments presented to their ultimate conclusion.
Counsel for plaintiff complains in his brief, rather bitterly of this treatment of the matter, and we here call attention of the profession thereto in the hope that a more strict adherence to the rules of this court respecting the preparation of briefs will be indulged in in the future.
From a careful reading of appellants' brief we conclude that[1] only the questions hereinafter discussed are relied upon, and that those questions presented by specifications of error, but not thereafter argued, have been abandoned. (Stephenson v.Home Ins. Co.,
1. The first question presented by defendants is as to the[2] jurisdiction of the persons of the defendants. The bill *272 of exceptions thereon discloses that the written motion and notice of motion were served and filed on December 14, 1923, by counsel, whose appearance for the defendants is not and cannot be questioned. The notice of motion advised counsel for the plaintiff that counsel for the defendants would, on the twenty-second day of December, 1923, at 9:30 A.M. or as soon thereafter as counsel could be heard, "at department No. 1 of said court," move the court to quash the service. It further appears from said bill of exceptions that, under the rules of court in the district, this cause was "allotted" to Department No. 1, and that on the twentieth day of December, 1923, or two days before said motion was to be heard in that department, the following order was entered in the minutes of Department No. 1:
"This day, on application of counsel for defendants and for convenience, this case was by the court ordered transferred to department No. 2 of this court, Hon. William E. Carroll, judge presiding, for all further hearings and trial.
"JOSEPH R. JACKSON, Judge."
On December 29, 1923, counsel for defendants, with counsel for plaintiff, appeared in Department No. 2 and presented the motion, which was thereupon taken under advisement by Judge Carroll, who, on March 8, 1924, entered his order in the journal of Department No. 2, denying the motion, and therein, "on the court's own motion," granted the defendants leave to prepare, serve and file their bill of exceptions to this ruling "without waiver of any rights and without requiring any general entry of appearance for that purpose," and also on the court's own motion granted defendants ten days' time in which to "enter an appearance and plead to the complaint."
While counsel for defendants earnestly contend that this[3] action is purely in personam, and counsel for plaintiff as earnestly contends that, under the facts shown in the complaint, the action is in rem or quasi in rem, and that, under the authority of Gassert v. Strong,
Before answering defendants' contention, counsel for plaintiff submits that, by applying to the court before which the cause was pending for an order transferring the case to another department, defendants made a general appearance and thereby waived their right to assert that the court originally had no jurisdiction over their persons. With this contention we are forced to agree.
"When a defendant desires to challenge the jurisdiction of the court over his person on the ground that there has been no valid service of summons, he must restrict his challenge to that ground only, and keep out of court for all other purposes." (Hinderager v. MacGinniss,
Where defendant's counsel, who had appeared specially for the purpose of moving to quash and, on the overruling of his motion, asked for additional time in which to answer on the merits, such application was held to constitute a general appearance and waive the objection to the jurisdiction of the court (State ex rel.Mackey v. District Court,
This rule applies where a defendant appeals from a judgment rendered in a justice court (Gage v. Maryatt,
Here it must be presumed that the defendants sought to derive some benefit from the order of transfer or they would not have applied for the order; for some reason which was considered sufficient by counsel for the defendants, they invoked the jurisdiction of the court, and it is immaterial that such application was made orally. (Zobel v. Zobel, above;Honeycutt v. Nyquist,
Defendants urge that the order made by Judge Carroll shows that he ruled upon the merits of the motion and did not consider the application in question a general appearance. All that we gather from the language used by Judge Carroll is that he sought to protect the rights of the defendants under their motion in the event his ruling was erroneous; he merely guarded against any act of the defendants which might thereafter be construed as a general appearance. The act which constituted such appearance was committed before Judge Carroll appeared in the case, and,[4] whatever his reason *275
for the ruling, he ruled correctly; if based upon wrong reasoning, the ruling must still be upheld. (Claussen v.Chapin,
2. Defendants next contend that the court was without[5] jurisdiction to render the judgment appealed from. Their contention as to jurisdiction over their persons, under which counsel discuss the treaty rights of citizens of the Dominion of Canada, has already been disposed of; but they contend further that this is a matter involving the rights of heirs to an estate, and that, while the complaint attempts to fix defendants as the only heirs of Euphemie Leger Vautour, it does not show that they are the only heirs of said deceased and that plaintiff is seeking to establish their heirship to the entire estate, and that for these reasons an action for the establishment of heirship, under the provisions of sections 10324 to 10327 of the Revised Codes of 1921, "within the probate matter," is the only method by which the plaintiff can proceed.
It would seem that the decision of this court in Burns v.Smith,
In the Rubin Case this court held that ordinarily proceedings to determine heirship under section 7670, of the Revised Codes of 1907, are not necessary as a condition precedent to distribution, but that, under the provisions of section 7673, as amended by Chapter 54, Laws of 1913, whenever it appears from the files and record of an estate matter that there are persons claiming to be heirs or claiming a right to share in said estate who are nonresidents of the United States, the court must *276 determine heirship in such a proceeding before decreeing distribution. This decision was rendered in an action wherein a citizen of a foreign country was claiming to take under the laws of descent as the mother of the deceased.
In Kirk v. Baker, the plaintiffs sought to establish interests in privity of the estate, and through alleged heirs of the deceased; while in the Colbert Case the plaintiff sought directly to establish heirship in privity with and within the estate; the action was prosecuted under the provisions of the statute for establishing heirship, and the language relied upon by counsel was employed in holding that a former abortive attempt by the plaintiff to maintain a civil action for the same purpose did not warrant the admission of depositions taken in such civil action, as no court of the state could have had jurisdiction of the action, since the sections quoted must be held to be exclusive. Taken literally and interpreted as counsel for defendants would have us construe the opinion, it would bar the determination of all questions as to whom there should be a distribution of an estate in any other manner than that prescribed in section 10324 of the Revised Codes of 1921, and would be contrary to the holding in the Rubin Case above, as well as that in Burns v. Smith. We do not, however, so interpret the language used in the Colbert Estate Case, or that of other decisions of like tenor; it applies to the facts presented in the given case only and those in which the facts are the same or similar, and must be interpreted in the light of those facts and limited in its scope to a situation like unto the one there presented. (Hunt v. S.Y. Cattle Co.,
It is significant that the Colbert decision does not mention the case of Burns v. Smith; had this court there intended to announce a rule contrary to its former holding, on facts which it deemed analogous, such mention would have been made and the former decision distinguished or overruled; its reason for not so doing is apparent. In the case of Burns v. Smith the contention now under consideration was made, and the case of *277 In re Burton's Estate,
The distinction between such cases as Kirk v. Baker andIn re Colbert's Estate, and such cases as Burns v. Smith and the case now under consideration, is that, in the first class of cases, the endeavor made is to establish a right to take in privity with the estate as an heir at law or through such an heir, while in the second class of cases the attempt is to establish a right adverse to the heirs at law and adverse to the estate; in the first class of cases the proceeding prescribed must be followed in order that the executor or administrator may be advised in the probate proceeding, and before distribution, as to whom he shall recognize in the payment of money or the delivery of property; in the second class of cases this necessity *278 does not appear, and the claimant is not precluded by the provisions of those sections from maintaining an independent action. The right to maintain such an action is upheld, and the above distinction, more or less clearly stated, is recognized in the following cases:
McCabe v. Healy,
Hickox v. Johnston,
In Anderson v. Blakesley,
In this action the provisions of our Code for the establishment of heirship are not controlling, and no error was committed in assuming jurisdiction of the cause.
3. It is next asserted that the complaint herein does not[6] state facts sufficient to constitute a cause of action, in that it does not show that the father of the child either gave his consent to her adoption or was legally deprived of her custody. Counsel rely upon State ex rel. Thompson v. DistrictCourt,
It is asserted that it does not appear from the complaint that[7] the Vautours, husband and wife, were more than ten years older than the child, but this assertion is rather weak; it appears that they were married, and that the agreement was entered into when the child was but three years old.
Again, it is claimed that it is not alleged that the Vautours were capable of adopting the child, as it does not appear that they were citizens of the United States. It is true that the complaint is silent in this respect, but it is one that could have been obviated by the Vautours, and, under their agreement to adopt, if not then citizens, it was their duty to become such in order to carry out their agreement as made.
4. It is next contended that the complaint is bad in that[8, 9] three separate causes of action are united therein. While certain defendants attacked the original complaint by motion to require the plaintiff to separately state and number these alleged different causes of action, the amended or supplemental *280
complaint is attacked only by demurrer. On filing this substituted pleading the original became functus officio, and what took place theretofore as to that complaint became immaterial in this action. It is not contended that the complaint states causes of action which could not be united if separately stated and numbered, and the defect thus asserted cannot be reached by demurrer, but can be reached only by motion. (Marcellus v. Wright,
5. As an additional ground on which counsel contended the trial court should have sustained their demurrer, they assert that the complaint is ambiguous and unintelligible, in that they cannot determine therefrom the theory on which plaintiff claims a right to recover. There is no merit in this contention; the complaint is couched in plain, intelligible English. It contains "a statement of the facts constituting the cause of action, in ordinary and concise language," with "a demand of the relief which the plaintiff claims" (sec. 9129, Rev. Codes 1921), and nothing more.
6. The defendants alleged affirmatively that the agreement[10] pleaded falls within the statute of frauds; the evidence discloses that the agreement was not in writing.
Section 10613, Revised Codes of 1921, provides that: "In the following cases the agreement is invalid, unless the same or some note or memorandum thereof be in writing, and subscribed by the party charged: * * * 1. An agreement that by its terms is not to be performed within a year; * * * 4. An agreement for the sale of goods, chattels, or things in action, at a price not less than two hundred dollars, unless the buyer accept and receive part * * * or pay * * * part of the purchase money; * * * 5. * * * for the sale of real property."
Our statute is, in all essential particulars, a copy of the original statute of frauds passed in England in 1677, the preamble of which declared it to be "for the prevention of *281 many fraudulent practices which are commonly endeavored to be upheld by perjury and subornation of perjury." Similar statutes exist throughout the United States. In discussing this statute, John W. Smith, LL. D., in his work on the "Law of Frauds" said: "It is not within the scope of this work, or the province of the writer, to discuss the legislative wisdom of the statutes, or whether such legislation has not been the actual means of perpetrating more fraud, perhaps many times over, than would or could possibly have been perpetrated without the statutes." (Sec. 311, p. 326.)
As courts have, from the beginning, recognized the fact that the statute may be turned into an instrument of fraud and its original purpose thus perverted, "there has been, from the beginning, a persistent attempt to evade the enforcement of the statutes in individual cases where their enforcement would necessarily result in the infliction of unjust judgments and the judicial sanction of wrong and injustice between man and man." (Smith on Law of Frauds, p. 327.)
Confusion and conflict in the authorities have arisen by reason of the difference in the temperament of judges; some holding to the strict letter of the statutes, let the result be what it may, while others, while imbued with the spirit of the statute and its purpose, refuse to follow it literally if reasonable means are at hand, sanctioned by law, for the rendition of a just and righteous judgment as between the parties. This latter course is made possible in jurisdictions wherein the court has full equitable jurisdiction, as "the statute, neither by its terms, nor by construction, is directed to the illegality of the transactions, as such, but only to the method of proof where proof is required. It is not prohibitory." (Id.) "The statute relates exclusively to the procedure and simply formulates a rule of evidence." (Pomeroy on Contracts, "Specific Performance," sec. 70.) "The controlling motive of the statute is one of expediency and convenience, and this motive has always been kept in view by the ablest courts in their work of interpretation. As the primary object is to prevent *282 mistakes, frauds, and perjuries, by substituting written for oral evidence in the most important classes of contracts, the courts of equity have established the principle, which they apply under various circumstances, that it shall not be used as an instrument for the accomplishment of fraudulent purposes; designed to prevent fraud, it shall not be permitted to work fraud." (Id., sec. 74, p. 104.)
From the application of these principles there early arose in the chancery courts of England the equitable doctrine of "part performance" as a justification for decreeing specific performance, on the theory, not that the court of equity is annulling the statute, but that, in equity and good conscience, such part performance takes the case out of the statute. (Lester v. Foxcroft, 1 Colles' Par. Cas. 108.) "The doctrine has been adopted in nearly all of the American states." (Pomeroy, above, p. 136.)
Thus in Wells v. Waddell,
In Story v. Black,
As no equitable consideration enters into a case for the enforcement of a contract not to be performed within a year, equity will not grant relief when an agreement falls within the first subdivision of our statute above, but that subdivision is no bar to the proof of the agreement here under consideration. "Subdivision 1, supra, is applicable to those contracts only which by their terms are not to be performed within one year by either of the parties. Therefore, where a contract may be performed by one of the parties within one year, the statute does not apply, especially so where the performance has been fully carried out." (Ayotte v. Nadeau,
As to subdivisions 4 and 5, however, the equitable doctrine of part performance does not apply to all such contracts, but "courts of equity decree specific performance of contracts, not upon any distinction between realty and personalty, but because damages at law may not, in the particular case, afford a complete remedy." (Sir John Leach in Adderly v. Dixon, 1 S.
S. 610, quoted in Pomeroy, above, p. 8.) So in this class of agreements, equity will grant specific performance of an agreement concerning personalty, only in those cases where, by reason of the peculiar nature of the consideration for the agreement, the injured party cannot be returned to the situation in which he was at the time the agreement was made, and pecuniary compensation would be inadequate or well-nigh impossible of ascertainment, and this test is applied generally to contracts involving realty as well. (Pomeroy, above, secs. 104 to 114.) Cases such as the one before us fall squarely within this rule, and are generally enforced by courts of equity. (Best v.Gralapp,
The full performance of the agreement by the mother of the child, and by the child herself, took this case out of the statute of frauds.
7. The defendants further alleged affirmatively that by her[11] failure to assert her rights after the death of Rosamund Vautour and during the life of the wife, plaintiff's intestate was guilty of laches and the statute of limitations ran against her claim.
As the agreement alleged the joint promise of Vautour and his wife, the final consummation of which could only be reached by death, and it appears that at the time of the death of Rosamund Vautour all of the property which had been acquired during his lifetime by their joint and several efforts stood in the name of the wife, there was no reason for asserting a claim against the "estate" of Rosamund Vautour, which was nonexistent. During the lifetime of the wife there was no breach of the agreement, as she could not "leave" a child's share in her estate until death created such an estate. It is therefore apparent that the action was commenced within time. (Furman v. Craine,
8. The findings of the court and the conclusions drawn therefrom are challenged. For this purpose counsel contend that the findings are based upon the testimony of Mrs. Sherman, mother of the child, and point out at length testimony of witnesses on behalf of the defendants which tends to contradict her testimony and to show that the Vautours during their lifetime did not intend to leave their property to the child, or woman.
The testimony referred to presents but a conflict in the[12, 13] evidence, and, while in cases such as this wherein the proof of the agreement rests largely upon the oral testimony *285
of interested parties as to conversations had a third of a century before the trial, such testimony should be "scrutinized with particular care," and the agreement enforced only "upon a satisfactory showing that it is definite and certain and just" (Story v. Black, above; Owens v. McNally,
Here it is not, and cannot be, denied that the mother in 1892[14] turned her three-year old child over to the Vautours and never thereafter exercised custody or control over her; that the Vautours from that time, until the marriage of the girl in 1905, exercised full dominion and control over her, cared for her, educated her, and treated her as their child, and that, in return, she performed the duties of a natural child and addressed her foster-parents as father and mother; that she took to herself the religion of the Vautours rather than that of her natural mother, and addressed her mother as "Nora," and that, after her marriage, she returned to live with the Vautours, thereafter securing a divorce from her first husband, and even after her marriage to Gravelin she resided with them.
The mother testified that all this was done in compliance with an agreement made between the two Vautours and herself that, if she would give them the child, for whom they had developed a sincere affection throughout two years of close association in their home, they would adopt her as their child, care for her, educate her, and that the child "have everything *286 they had"; that this agreement was made in the presence of two witnesses, since deceased, and at a time after she was divorced from the father of the child and remarried, and when she was sick and unable to care for the child; that on making the agreement the Vautours took the child home and took with them her clothes, toys and everything she had.
Gravelin, the husband of Anna, testified that after their marriage Anna conducted the business affairs of Mrs. Vautour while they were living with her; this testimony was contradicted by one Mrs. McGuire, with whom Mrs. Vautour lived at the time of her death and in whose favor she made a will, which was later set aside on the ground of undue influence exerted by Mrs. McGuire over the deceased.
For the defense one witness testified that some thirty-odd years prior to the trial Vautour showed him a piano and stated that it was given him by Sherman for the care of Anna. Mrs. Sherman testified that no such transaction was ever had.
A Mrs. Brian, eighty years of age, testified that Mrs. Vautour had explained to her the presence of Anna in the home by saying that Mr. Sherman had not wanted the child, and that she told Mrs. Sherman to leave the child with her; also that at that time the Vautours had a son, since deceased, of whom they were very fond, though he was not living at home. Mrs. Sherman testified that her second husband had no objection to the child.
One Charles White testified that at about the age of sixteen Anna became somewhat wild, and Vautour told the witness Anna would not get any money, and his wife testified that Vautour told her that Anna thought she was going to get something, but that she would never get anything on account of her conduct. It is insisted by counsel for defendants that this testimony controverts the testimony regarding the agreement. It seems to us rather to support it; it is in the nature of a declaration of a father, when provoked with his child, that he will disinherit such child, but fails to do so. It appears that Anna continued to live with the Vautours, and to *287 return to them when away, until after the death of Vautour, notwithstanding this ill feeling toward her at the time mentioned.
The marriage certificates issued to Anna and her first and second husband were introduced. In the first, while her name is given as "Anna Vautour," the name of her father is given as "Frank Vautour" and her mother's as "Anna Vautour," maiden name Cook; in the second her father's name is given as John Sherman and her mother's name as Nora "Dorothy." Mrs. Sherman's maiden name was Dougherty, while her second husband's given name was "Will." It does not appear that Anna furnished the information contained in either of these certificates, and the fact that none of the information contained is accurate would seem to indicate that she did not; the certificates, therefore, have little evidentiary value.
The record discloses substantial evidence in support of each of the findings made by the learned trial judge, and, considered in its entirety, the evidence clearly and strongly preponderates in favor of those findings, and they must, therefore, stand as made.
9. In connection with the charge of the insufficiency of the[15] evidence, defendants assert that there is a variance in the pleading and proof, in that it is alleged that the Vautours agreed to will their property to Anna, while the proof is to the effect that the word "will" was not used, but that they agreed that she should have everything on their death.
The allegation is that the Vautours agreed that they would "execute a will whereby plaintiff would receive such property as a natural child * * * would be entitled to receive, and that on their death she would receive a child's share of their estate." Mrs. Sherman testified that the Vautours promised in this connection that "when they should die she could have everything they had." While the complaint alleges an agreement to make a will, it also alleges all of the elements of a contract to adopt, with the accompanying right to take a child's *288 share of the estate by reason of such agreement. There is here no such variance as will defeat the right of recovery.
10. It is lastly contended that the agreement was without[16] consideration. Counsel base this contention on the alleged showing that there could have been no adoption, heretofore disposed of, and the evidence to the effect that Anna was not all that she should have been; in their brief they say: "Had Anna done the right thing, there might have been a different result; but the plaintiff's case is one which discloses nothing rendered on the part of Anna, no performance on her part," etc. This statement is not warranted by the proof. Nothing appears in the record to refute the assertion of plaintiff's witnesses that, up to the time Anna was fourteen to sixteen years of age, she was a diligent, obedient and loving daughter to the two old people, and it does appear that, whatever then happened, it was condoned by again taking her into the home and again treating her as a daughter. What happened to the foster-child might have happened to a natural child; in either instance the parent might cast the child off and cut off her right to take his property, but such an act would not affect the consideration given for their promise, and the fact remains that they did not do so, but, on the contrary, received her back into the home.
Had the Vautours adopted the child, as the court found they agreed to do, in the absence of the making of a will to the contrary, the formal adoption would have carried with it a child's right of inheritance in their property. They made no will, and their property was left to descend by operation of law. Equity considers that done which should have been done, and since the plaintiff's right to take as though a natural child, under the contract of adoption, can be recognized without violating any expressed intention of the deceased to the contrary, the decree awarding the property was just and equitable (Tuttle v.Winchell, above) and must be sustained.
11. Costs. As the defendant John Lindsay was made a party to[17] this action in his representative capacity only, *289 and then only that the court might, on rendering judgment, direct the disposition of the property in his hands in such capacity, and as on this appeal this defendant appealed only for the protection of the interests of the remaining or individual defendants and would neither gain nor lose by the determination of the appeal, it would be inequitable to assess costs on appeal against him personally. On the other hand, to assess costs against him as the administrator of the estate of Euphemie Leger Vautour, would be to add the amount thereof to the costs of administration of that estate, and, in effect, to compel the plaintiff to pay the costs incurred by reason of an appeal brought to this court by the opposing party determined in favor of the plaintiff. It is therefore ordered that plaintiff recover the costs of appeal, but that such costs be taxed against the defendants other than John Lindsay, as administrator. The judgment is affirmed.
Affirmed.
MR. CHIEF JUSTICE CALLAWAY, ASSOCIATE JUSTICE STARK and HONORABLE THEODORE LENTZ, District Judge, sitting in place of MR. JUSTICE HOLLOWAY, absent on account of illness, concur.
MR. JUSTICE GALEN not sitting. *290
