[123]*123The opinion of the court was delivered by
Porter, J.:
Whether equity will decree the specific performance of a contract rests entirely in judicial discretion, and always upon the facts of the particular case. (Hennessy v. Woolworth, 128 U. S. 438, 9 Sup. Ct. 109, 32 L. Ed. 500.) Before relief will be granted it must appear that good conscience and natural justice require it.
There is no rule of public policy which forbids the making of an agreement to dispose of property in a particular manner by will. (Edson v. Parsons, 155 N. Y. 555, 50 N. E. 265; Johnson v. Hubbell, 10 N. J. Eq. 332, 66 Am. Dec. 773.)
When a definite contract to leave property by will has been clearly and certainly established, and there has been performance on. the part of the promisee, equity will grant relief, provided the case is free from objection on account of inadequacy of consideration and there are no circumstances or conditions which render the claim inequitable. This is the general doctrine adhered to by the courts. (Roehl, Administrator, v. Haumesser, 114 Ind. 311, 15 N. E. 345; Gall v. Gall, 71 N. Y. Supr. Ct. 600, 19 N. Y. Supp. 332; 60 Cent. L. J. 265.)
The principle upon which courts of equity undertake to enforce agreements of this kind is well stated in Bolman et al. v. Overall, Ex’r, et al., 80 Ala. 451, 2 South. 624, 60 Am. Rep. 107. It was there said:
“It is not claimed, of course, that any court has the power to compel a person to execute a last will and testament carrying out his agreement to bequeath a legacy, for this can be done only in the lifetime of the testator, and no breach of the agreement can be assumed so long as he lives, And after his death he is no longer capable of doing the thing agreed by him to be done. But the theory on which the courts proceed is to construe such an agreement, unless void under the statute of frauds or for other reason, to bind the property of the testator or intestate so far as to fasten a [124]*124trust on it in favor of the promisee, and to enforce such trust against the heirs and personal representatives of the deceased or others holding under them charged with notice'of the trust. It is in the nature of a covenant to stand seized to the use of the promisee, as if the promisor had agreed to retain a life-estate in the property, with remainder to the promisee in the event the promisor owns it. at the timé of his death, but with full power on the part of the promisor to make any bona fide disposition of it during his life to another, otherwise than by will.” (Page 455.)
The case of Sharkey v. McDermott, 91 Mo. 647, 4 S. W. 107, 60 Am. Rep. 270, was this: A man and wife entered into an agreement to adopt plaintiff as their child and leave her their property when they died, but failed to execute the agreement as to the adoption. Plaintiff wholly performed the agreement on her part by living with them and paying them all the attention due from a child to parents for many years. The husband died leaving his property to the wife. Plaintiff continued living with the wife as her child, and upon the death of the wife the court held that the contract was valid and that plaintiff was entitled to specific performance. It was contended there, as it is here, that the statutory mode of adoption had not been complied with and that equity could not dispense with the requirement, and therefore that plaintiff could not recover, but the decision was placed squarely upon the ground that plaintiff’s rights depended entirely upon the agreement and the action of the parties under the agreement. The court said:
“This agreement was not merely and solely one to adopt the plaintiff, but was in part to leave the plaintiff the property at their death. The fact that the parties, and each of them, may have failed and neglected to execute it, so far as the adoption was concerned, should not, we think, exonerate them from its further obligation to transfer their property.” (Page 654.)
The case of Winne v. Winne, 166 N. Y. 263, 59 N. E. 832, 82 Am. St. Rep. 647, was exactly like the one here. The contract was in writing; it had been lost, and its [125]*125contents were proved by secondary evidence. The trial court made a finding that a written contract had been made by a childless person with plaintiff’s mother for his benefit, to the effect that the former would maintain plaintiff, then an infant, as her own child, and at .her death give him all her property, if his mother would surrender to her his custody and control. The court of appeals, in affirming the judgment of the trial court, reviewed the authorities quite fully and held that the agreement was clear, definite and certain, based upon a sufficient consideration, binding in equity, and enforceable against the estate of the promisor. The court said:
“It has been suggested that such a contract might be in conflict with the statute relating to wills and to their manner of execution. This was not a contract in the nature of a testamentary disposition of the decedent’s property. On the contrary, it was a contract to be chiefly executed during the life of the decedent, with compensation to be made at her death. It was a method adopted to provide for the payment by her for •the custody, control and services of the plaintiff during his minority. It may be observed in passing that the decedent before her death received the full consideration provided for by the agreement.” (Page 268.)
Referring to some of the many considerations which might influence a court of equity in this class of cases the court further observed:
“If, however, the plaintiff, instead of following her admonitions, and thus becoming an upright and respected man, had become dissolute or otherwise led an unworthy life, and thus entailed upon her sorrow and disgrace, the court might well have refused this relief.” (Page 272.)
Another case very like the one at bar is Sutton et al. v. Hayden et al., 62 Mo. 101. The contract there was found by the court to have been embraced in a letter written to plaintiff by her aunt, promising that if plaintiff, her niece, would come and live with her she would treat the niece as her own daughter and at her death all she possessed should become the property of the [126]*126niece. The letter became lost and its contents were proved by the evidence of a witness who had seen it, as in this case. Specific performance of the contract was enforced against the heirs at law. (To the same effect see Schutt v. Missionary Society, 41 N. J. Eq. 115, 3 Atl. 398; Healey v. Simpson, 113 Mo. 340, 20 S. W. 881.)
The case of Svanburg v. Fosseen, 75 Minn. 350, 78 N. W. 4, 43 L. R. A. 427, 74 Am. St. Rep. 490, is another very similar one on the facts, except that the contract was not in writing. In- this and in the following cases contracts like the one involved here, but which were in parol, were enforced upon the theory that-performance by the child had taken the contract out of the statute of frauds, and for the reason that the services rendered were of such a character, that their value could not be determined by pecuniary standards and the courts could say that it was not intended by the parties that the services should be so measured. (Brinton v. Van Cott, 8 Utah, 480, 33 Pac. 218;
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[123]*123The opinion of the court was delivered by
Porter, J.:
Whether equity will decree the specific performance of a contract rests entirely in judicial discretion, and always upon the facts of the particular case. (Hennessy v. Woolworth, 128 U. S. 438, 9 Sup. Ct. 109, 32 L. Ed. 500.) Before relief will be granted it must appear that good conscience and natural justice require it.
There is no rule of public policy which forbids the making of an agreement to dispose of property in a particular manner by will. (Edson v. Parsons, 155 N. Y. 555, 50 N. E. 265; Johnson v. Hubbell, 10 N. J. Eq. 332, 66 Am. Dec. 773.)
When a definite contract to leave property by will has been clearly and certainly established, and there has been performance on. the part of the promisee, equity will grant relief, provided the case is free from objection on account of inadequacy of consideration and there are no circumstances or conditions which render the claim inequitable. This is the general doctrine adhered to by the courts. (Roehl, Administrator, v. Haumesser, 114 Ind. 311, 15 N. E. 345; Gall v. Gall, 71 N. Y. Supr. Ct. 600, 19 N. Y. Supp. 332; 60 Cent. L. J. 265.)
The principle upon which courts of equity undertake to enforce agreements of this kind is well stated in Bolman et al. v. Overall, Ex’r, et al., 80 Ala. 451, 2 South. 624, 60 Am. Rep. 107. It was there said:
“It is not claimed, of course, that any court has the power to compel a person to execute a last will and testament carrying out his agreement to bequeath a legacy, for this can be done only in the lifetime of the testator, and no breach of the agreement can be assumed so long as he lives, And after his death he is no longer capable of doing the thing agreed by him to be done. But the theory on which the courts proceed is to construe such an agreement, unless void under the statute of frauds or for other reason, to bind the property of the testator or intestate so far as to fasten a [124]*124trust on it in favor of the promisee, and to enforce such trust against the heirs and personal representatives of the deceased or others holding under them charged with notice'of the trust. It is in the nature of a covenant to stand seized to the use of the promisee, as if the promisor had agreed to retain a life-estate in the property, with remainder to the promisee in the event the promisor owns it. at the timé of his death, but with full power on the part of the promisor to make any bona fide disposition of it during his life to another, otherwise than by will.” (Page 455.)
The case of Sharkey v. McDermott, 91 Mo. 647, 4 S. W. 107, 60 Am. Rep. 270, was this: A man and wife entered into an agreement to adopt plaintiff as their child and leave her their property when they died, but failed to execute the agreement as to the adoption. Plaintiff wholly performed the agreement on her part by living with them and paying them all the attention due from a child to parents for many years. The husband died leaving his property to the wife. Plaintiff continued living with the wife as her child, and upon the death of the wife the court held that the contract was valid and that plaintiff was entitled to specific performance. It was contended there, as it is here, that the statutory mode of adoption had not been complied with and that equity could not dispense with the requirement, and therefore that plaintiff could not recover, but the decision was placed squarely upon the ground that plaintiff’s rights depended entirely upon the agreement and the action of the parties under the agreement. The court said:
“This agreement was not merely and solely one to adopt the plaintiff, but was in part to leave the plaintiff the property at their death. The fact that the parties, and each of them, may have failed and neglected to execute it, so far as the adoption was concerned, should not, we think, exonerate them from its further obligation to transfer their property.” (Page 654.)
The case of Winne v. Winne, 166 N. Y. 263, 59 N. E. 832, 82 Am. St. Rep. 647, was exactly like the one here. The contract was in writing; it had been lost, and its [125]*125contents were proved by secondary evidence. The trial court made a finding that a written contract had been made by a childless person with plaintiff’s mother for his benefit, to the effect that the former would maintain plaintiff, then an infant, as her own child, and at .her death give him all her property, if his mother would surrender to her his custody and control. The court of appeals, in affirming the judgment of the trial court, reviewed the authorities quite fully and held that the agreement was clear, definite and certain, based upon a sufficient consideration, binding in equity, and enforceable against the estate of the promisor. The court said:
“It has been suggested that such a contract might be in conflict with the statute relating to wills and to their manner of execution. This was not a contract in the nature of a testamentary disposition of the decedent’s property. On the contrary, it was a contract to be chiefly executed during the life of the decedent, with compensation to be made at her death. It was a method adopted to provide for the payment by her for •the custody, control and services of the plaintiff during his minority. It may be observed in passing that the decedent before her death received the full consideration provided for by the agreement.” (Page 268.)
Referring to some of the many considerations which might influence a court of equity in this class of cases the court further observed:
“If, however, the plaintiff, instead of following her admonitions, and thus becoming an upright and respected man, had become dissolute or otherwise led an unworthy life, and thus entailed upon her sorrow and disgrace, the court might well have refused this relief.” (Page 272.)
Another case very like the one at bar is Sutton et al. v. Hayden et al., 62 Mo. 101. The contract there was found by the court to have been embraced in a letter written to plaintiff by her aunt, promising that if plaintiff, her niece, would come and live with her she would treat the niece as her own daughter and at her death all she possessed should become the property of the [126]*126niece. The letter became lost and its contents were proved by the evidence of a witness who had seen it, as in this case. Specific performance of the contract was enforced against the heirs at law. (To the same effect see Schutt v. Missionary Society, 41 N. J. Eq. 115, 3 Atl. 398; Healey v. Simpson, 113 Mo. 340, 20 S. W. 881.)
The case of Svanburg v. Fosseen, 75 Minn. 350, 78 N. W. 4, 43 L. R. A. 427, 74 Am. St. Rep. 490, is another very similar one on the facts, except that the contract was not in writing. In- this and in the following cases contracts like the one involved here, but which were in parol, were enforced upon the theory that-performance by the child had taken the contract out of the statute of frauds, and for the reason that the services rendered were of such a character, that their value could not be determined by pecuniary standards and the courts could say that it was not intended by the parties that the services should be so measured. (Brinton v. Van Cott, 8 Utah, 480, 33 Pac. 218; Shahan, Ex’r, et al., v. Swan, 48 Ohio St. 25, 26 N. E. 222, 29 Am. St. Rep. 517; Wright v. Wright, 99 Mich. 170, 58 N. W. 54, 23 L. R. A. 196; Van Tine v. Van Tine [N. J. Eq.], 15 Atl. 249, 1 L. R. A. 155; Van Duyne v. Vreeland, 12 N. J. Eq. 142; Teske v. Dittberner, 65 Neb. 167, 91 N. W. 181, 101 Am. St. Rep. 614, 70 Neb. 544, 98 N. W. 57; Kofka v. Rosicky, 41 Neb. 328, 59 N. W. 788, 25 L. R. A. 207, 43 Am. St. Rep. 685; Brantingham v. Huff, 43 N. Y. Supr. Ct., App. Div., 414, 60 N. Y. Supp. 157; Gates v. Gates, 34 N. Y. Supr. Ct., App. Div., 608, 54 N. Y. Supp. 454; Parsell v. Stryker, 41 N. Y. 480; Pom. Cont., 2d ed., § 114; and cases cited in 60 Cent. L. J. 265.)
The defendants rely upon the case of Renz v. Drury, 57 Kan. 84, 45 Pac. 71. That case is readily distinguished from this. Rights of inheritance were claimed, based upon a common-law adoption in Iowa. The court held that where the adoption of children is regulated by statute rights of inheritance can only be [127]*127acquired through adoption substantially in compliance with the statute. There was, it is true, a further claim of an agreement entered into by the foster-parents with the child when she was fifteen years of age, and of a compliance on her part, and the agreement was similar to the one in this case; but the court found that it rested in parol and was within the statute of frauds. In the present case, while there is some claim that the Palmlunds agreed to adopt plaintiff, the suit is not based upon that part of the agreement; but, like Sharkey v. McDermott, 91 Mo. 647, 4 S. W. 107, 60 Am. Rep. 270, it is based upon the agreement to leave to plaintiff whatever property they possessed when they died. The opinion in Renz v. Drury, supra, which was by Mr. Chief Justice Martin, refers to Sharkey v. McDermott, and distinguishes that case for the reason that the contract there was in writing.
The main contention of the defendants is that the evidence is not sufficient to warrant the finding that the contract was made or to show its exact terms. With respect to the character of evidence necessary in cases of this kind to warrant a court in decreeing specific performance the rule is that the agreement should be clearly and definitely established, We are satisfied with the language of the court in Edson v. Parsons, 155 N. Y. 555, 50 N. E. 265, as follows:
“But, equally,, would it be the duty of a court of equity to refuse that relief, where the agreement sought to be given effect was not certain and definite. Cleanly, it should hesitate to assume the- grave responsibility of implying an agreement, whose existence depends upon circumstances, inconclusive in their nature and permitting an inference either way. It is not essential to the intervention of equity, in order to prevent the accomplishment of fraud, that an agreement should be established by direct evidence. It may be established from such facts and circumstances as will raise an implication that it was made; and may have reinforcement from thé evidence of the conduct of the parties, at the time and subsequently.” (Page 567.)
[128]*128The proof was sufficient to justify the court in making the findings of fact. While but one witness testified to the contents of the correspondence which made up the contract, the fact that a contract existed, and its terms as found by the court, are supported and reinforced by the conduct of all the parties.
The Palmlunds had no other child. The enforcement of the contract is not, therefore, opposed to public policy, as in those cases where it would result in the exclusion of the children or the wife or husband of the deceased. (Gall v. Gall, 71 N. Y. Supr. Ct. 600, 19 N. Y. Supp. 332.) The opposing claimants are all collateral heirs. These matters are always proper for the consideration of a court of equity. As suggested at the outset, the remedy rests in judicial discretion, and must depend upon the particular facts of the case. The claim that it is against public policy for the reason that it provides for the surrender of the care and custody of the child has no force. The contract had been performed upon the part of Hilda Anderson, and her parents as well. The state is no longer concerned. This is not a suit to compel the parents to abide by their part of the contract, nor is it a suit by the parents to secure the custody of a child, as in Chapsky v. Wood, 26 Kan. 650, 40 Am. Rep. 321.
We cannot agree with the contention of the defendants that the terms of the contract are incomplete and uncertain. Its terms provided that the Palmlunds were to receive Hilda Anderson at the age of eight years into their home; to care for, raise and educate her; to have her custody and control; and, in consideration of these benefits, arid the opportunity thus afforded them to gratify their parental love and to receive her obedience, society and services in all respects as though she were their own child, they agreed that she should be given whatever property they possessed when they died. The parents, in consideration of the future benefits to their child, surrendered the [129]*129possession and control of plaintiff.* She performed her part fully. The contract, then, so far as plaintiff is concerned, has passed from an executory to an executed one. All the authorities to which we have referred sustain the doctrine that a contract of this nature will be enforced when it is not inequitable. As was said by Chancellor Williamson in Johnson v. Hubbell, 10 N. J. Eq. 332, 66 Am. Dec. 773:
“It may be unwise for a man, in this way, to embarrass himself as to the final disposition of his property, but he is the disposer, by law, of his own fortune, and the sole and best judge as to the time and manner of disposing of it. A court of equity will decree the specific performance of such an agreement upon the recognized principles by which it' is- governed in the exercise of this branch of its jurisdiction.” (Page 335.)
The rights of plaintiff depend in no respect upon any contract for adoption, nor upon any claim of inheritance through adoption, but wholly upon contract. We are content to rest our decision in this case upon the facts found by the trial court: that there was a definite contract entered into in writing, which removes the case wholly from the operation of the statute of frauds; that the contract was equitable and fair, based upon sufficient consideration, and fully performed by plaintiff; and for the reason, that the particular facts and circumstances of the case are such, in our opinion, as to justify a court in its sound judicial discretion in granting the relief asked. Upon different circumstances and different proof a court might, on the other hand, deny specific performance of the same kind of a contract.
We do not regard Renz v. Drury, 57 Kan. 84, 45 Pac. 71, as laying down the hard and fast rule that a court of equity should never compel the specific performance of a parol contract of this character, but rather as an illustration of the doctrine, recognized almost [130]*130universally, that each case depends upon its own particular facts and circumstances, and the granting or denying of the remedy rests in judicial discretion.
The judgment is affirmed.