Renz v. Drury

The opinion of the court was delivered by Martin, C. J. : [87] 1. Declaration of decedent. [86] I. The evidence of Virginia Drury and her husband as to conversations with Nicholas [87] Renz was incompetent under section 322 of the civil code. They were parties to the action, and their testimony related to communications ‘ ‘ had personally” with the deceased person, the adverse party, Sarah A. Renz, being the heir at law of such deceased person, whose title to the cause of action was acquired immediately from him. (Rich v. Bowker, 25 Kan. 11; Wills v. Wood, 28 id. 400; Hafer v. Hafer, 33 id. 449, 463.) We think that the objection to the incompetency of the testimony was sufficient, and that the question is properly raised by the petition in error. 2. Rights of inheritance. II. There was no evidence that any proceeding was ever had under the Iowa statute for the adoption of Virginia by Mr. and Mrs. Renz, and the supreme court of Iowa has decided that rights of inheritance can only be acquired through adoption by a full compliance with the provisions of the statute ; and accordingly, where articles of adoption were properly executed but not recorded during the lifetime of the person adopting, it was held that no right to inherit from him was thereby conferred on the child, though the latter had complied with the terms of such articles during the full period of his minority. (Shearer v. Weaver, 56 Iowa, 578, 584.) In Kentucky, where there is also a statute authorizing adoption, it has been held that no agreement to adopt is effectual, unless in compliance with the statute, and even though the father gave the child his name, and reared and held him out to the world as his own, yet it was held that such adoption was ineffectual. (Willoughby &c. v. Motley, 83 Ky. 297, 300.) In Wallace v. Rappleye et al., 103 Ill. 229, 258, the same doctrine was recognized. In Indiana and Ohio, where [88] rights to inherit lands have been asserted under parol agreements of like character, it has been held that such agreements come within the inhibition of the statute of frauds, and therefore cannot be enforced, unless they can be brought within some recognized exception to the application of that statute. (Wallace, Administrator, v. Long, Guardian, 105 Ind. 522; Shahan, Exr., et al., v. Swan, 48 Ohio St. 25.) The cases of Van Duyne v. Vreeland, 12 N. J. Eq. 142; Davison v. Davison, 13 id. 246, and Van Tine v. Van Tine, 15 Atl. Rep. 249 (N. J.), are cited in opposition to the foregoing authorities. But it appears that in New Jeksey there was no statute regulating the adoption of children, and the courts of equity of that state recognized the validity of adoption by parol, or in writing, although no such right existed at common law. The majority of the supreme court of Michigan followed the New Jersey authorities in Wright v. Wright, 99 Mich. 170, and also held that the agreement was taken out of the operation of the statute of frauds by part performance. The adoption law of Michigan, which had been complied with, was afterward declared unconstitutional, leaving the state without any statute regulating the subject, as in New Jersey. Sharkey v. McDermott, 91 Mo. 647, is also cited by the defendants in error. That case was decided upon a demurrer to the petition which was held to admit that the agreement to adopt was in writing, and that the contract had been partially performed. In re Evans, 106 Cal. 562, is also cited by the defendants in error, but in that case the proceedings to adopt were regular, so far as the parties were concerned; but the judge failed to make the proper entry upon his record, although he indorsed his approval on the [89] agreement of adoption, and we think it was correctly held that this failure of the judge properly to perform his duty did not deprive the adopted child of her rights. Mr. and Mrs. Renz and Virginia resided in Iowa from 1857 until 18(79, the latter date being three years after Virginia was married. Whatever contract there may have been between the parties was governed by the laws of that state, and we think it fairly settled by the authorities that in a state having a statute regulating the adoption of children the provisions thereof must be substantially followed in order to clothe the adopted child with the right of inheritance ; and, as there was no evidence of compliance with the Iowa statute, we think that Virginia did not establish a right to a half interest in the lot in controversy and the rents and profits thereof on the theory of adoption. 3. Agreement to make a foster-child an heir. III. Counsel for the defendants in error claim a right in the property by virtue of the agreement made with Virginia when she was 15 years of age, and her compliance with that agreement. She testified, and the court found, that while working at the hotel she paid her wages to Nicholas Renz, but we hold that a right to real estate in Kansas, not then owned by Nicholas Renz or his wife, could not be acquired by a parol agreement of this nature. The contract theory of this case, based upon services, comes within the reasoning in Baldwin v. Squier, 31 Kan. 283, where it is’held that payment of the purchase price does not take such a contract out of the reach of the statute of frauds, because the money can be recovered back by action, and so no fraud will be accomplished if the parol contract is not enforced. In the present case, the value of the services of Virginia from the time that said contract was made until she married was easily ascertainable, and might have been [90] recovered on a quantum meruit, as held in Wallace, Administrator, v. Long, Guardian, supra. The judgment will be reversed, and the cause remanded to the district court for a new trial. All the Justices concurring.