to conform to the later and more liberal pro- | He so told me more than once, and within vision. But, however this may be, the pro- the last five years, but I am unable to state vision in section 1387, that certain illegiti- when or where.” mates may inherit, cannot be held to exclude others, who have been adopted as provided by law, from the right of inheritance. Section 230 expressly provides that upon the adoption of a child, as therein provided, it shall "be deemed to be legitimate for all purposes." See Estate of Wardell, 57 Cal. 484. 6. In order to a proper understanding of the comments we make upon the evidence, it is necessary to state its substance. The testimony on the part of the respondent tended to show that the mother of the respondent resided in Marysville, in this state, and was, while residing there, on terms of intimacy with the deceased; that she came to San Francisco, and was by him placed in charge of a nurse, an old colored lady, who it appears, was a respectable, Christian woman. Soon after being placed with the nurse, she was confined, and gave birth to the respondent. The deceased visited her frequently during her stay at the house, paid all of the expenses consequent upon her sickness, and after the birth of the child the mother left the city, and the deceased took the entire charge of the child from that time on, leaving it with the nurse. He provided for its maintenance, appeared to be very fond of it, took it out with him frequently when it was young, to places of amusement, took great pride in seeing that it was well dressed, paid the nurse, and an extra nurse employed by her, liberally, for taking care of the child, and paid all of the doctor's bills and other necessary expenses. After the child became old enough he sent it to a private school, paying considerable sums of money for that purpose, and paid all of its necessary expenses. He caused a picture of it to be painted at an expense of $100, and kept the same in his room. As to his declarations with reference to the child, we set out the evidence of various w.tnesses as to the same, without giving names, lettering the testimony of each witness separately:

son.

(a) "He said: This is my son, Doctor, that I had by Miss Isn't he a nicelooking boy. I think a great deal of that boy, and I am going to raise him as my boy, and look after him, and educate him, and make a man of him, and he shall be my heir.' After that we had some talk, and I asked him on one occasion whether the boy was his He said he had him, educating him, and also told me that Miss had married, and done well, and he was very glad of that, as it got her out of the scrape, and him too. Jessup said also that he did not want the mother to see the boy, because her parents would find it out, and he did not want them to find it out; but he wanted to keep the boy as secret as he could from the parents, and it would save the reputation of the young lady. He told me that the boy had grown up, and was most a young man, and he was going to make him his son and heir.

(b) "We had some further conversation after that; some conversation about the boy. He had grown to be four or five years old. Jessup knew that I knew all about the affair. We used to talk about it frequently. I recollect he brought the boy up to my place to have his teeth taken out, which I did." (c) "My mother spoke to him about Miss and wanted him to marry her; told him that Miss was feeling very bad, and that he had confessed to my mother that he was the father of the child. He said: Yes; I know I am. She was a good girl when I met her, and I caused her fall. I am the father of the child, and I intend to marry her.' Mr. Jessup called quite often. I cannot tell the number of times, two or three times a week; I should think oftener after the child was born. He was not there more than twice before. He paid forty dollars a month for the care of Richard. That was for the board exclusively. As for his clothing, he wanted him dressed in the best. He said that he was able to pay for it, and he wanted him dressed nicely, and always to look nicely. He did not want him to wear calico dresses. He wanted him dressed in white always. He wanted him kept in white, and whatever the expense was he would pay it. He had plenty to take care of Richard with, and he intended to take care of him, and wanted him always to look nice. He visited the child after the mother went away quite often. I cannot tell just how often, but very often. He visited him quite often at my mother's house, before the child went to Petaluma. I cannot tell how often. If the child was awake when he came he would take him up, and play and talk with him. If he was not awake, he would wait until he awoke. He would call him his boy, and many other affectionate names. He would take him up in his arms and say: Come to your papa; come to your daddy,'—and hold him up, and ask if he was not a fine boy. He always seemed very pleased if mother said that he looked like his father. He was very fond of him. He used to take him out,

would come very often, and used to take us down to North Beach; for Richard, as a baby, was very fond of the birds and monkeys and wild animals that were kept down at North Beach at the time, and his father, learning of his fondness for them, would take us down there to visit those animals, and he would buy nuts and candy for Richard to give them. The baby was rather sickly from the time it was born, and needed a good deal of care, and Mr. Jessup told my mother whenever she thought it was necessary to get a physician, and take good care of him. He was called Richard by his father's request. He said he wanted him called Richard after an uncle of his, a brother of Mr. Jessup's, who Mr. Jessup said was very wealthy. He said he was dead, and he would

receive his estate, and that whatever he got would belong to Richard. He was leaving it to Richard, and he intended to leave him all that he had, and he would like to have him named after his uncle. He said: If Richard behaves himself, and does what I want him, he will not be sorry for it.' Said he wanted to make a man of him. He wanted him well educated. Fretted, I think, that Richard did not want to remain at school. He said that Richard was all that he had, and there was only the two of them, and that he ought to try and make him happy, and do just as he wanted him to do. He thought he ought to try and make him happy, and he would do anything for him and make a man of him, and after his death be would have 'all that I have.' He further said he wanted Richard to work and be self-sustaining. He wanted him to be independent, but at the same time he did not want him to want for anything. He told me his object in having Richard work was that he wanted him to learn the value of a dollar, because he wanted him to know how to take care of it; for he said: When I die, what belongs to me will fall into Richard's hands, and I want him to know how to take care of it.""

whether he was going. He said: No; he was going to send some one.' He said he was going to send a boy. I said: What boy? He said: I have got a boy as big and as old as yours.' He did not tell me where the boy was. He said he had been to college, and was going to send him to a ranch on a vacation. He asked for the ticket to be made out to Richard Miller, and it was so made. He told me that the ticket was for his boy,—his son. I. asked him: Why do you make it out for Richard Miller?' Well, he said that he wanted to avoid trouble with a woman, or the mother, as some people at the back of her, by talking with her, were making trouble."

(i) "Question. Did you hear the boy call his father by any names? Answer. Papa. Mr. Jessup's manner was very affectionate. He would take the boy, and caress him, and kiss him, bring him fruits, cakes, lady-fingers, and be very fond of him."

(j) "He said that she had been married, and that he did not think that he ought to look out for her any more; that he had this heir,-this boy, rather,—and he had looked out for him from his infancy, and intended to look out for him, but he did not think he (d) “I knew Gershom P. Jessup in his life- should be bothered with the mother. He time about ten or twelve years, probably. said that he was giving the boy a schooling. We were friends. Never had any conversa- | He had looked out for him from infancy. I tion with him directly about his family. don't think he told me who the child was With regard to the boy, I had a conversation once. One of my sons was with me, and I introduced him to Mr. Jessup, and he said to me: I have a son that I am educating and bringing up.'

(e) "I painted the portrait for Mr. Jessup. During the process of painting the picture Mr. Jessup called at my studio, and seemed quite interested in the portrait. I cannot exactly state how, except that he came up in the room, and expressed himself pleased with it."

(f) "I said: 'You have not anything to detain you here,-have not got any family, have you?' He said: 'I have got a son here.' He spoke of having two sisters in the east and his brother here. He said he did not expect Well, he said: The way I feel, and the way this thing [referring to some litigation] worries me. I do not think I will last long.' He said he had made a will providing for his sisters, his brother, and for his son." 99

with. He said he had him off at school. I think he told me that the mother had nothing to do with the boy; that he had taken care of him. That is my recollection. I said: Mr. Jessup, that is my boy.' He said: My boy is as old as your boy.' I said: Your boy ought to be three or four years older than mine, I don't know but more, and my boy is fully sixteen years;' and he said: He is.' I asked him: Where is your boy? What have you done with him? Well, he said, he is at work; it is well enough for parents to learn their boys to go to work.' I said: 'I agree with you; that is a good idea.""

(7) "He spoke to me several times about (g) "The boy always accompanied him to his family,-about having a son. I told him the store. I do not remember any statement to bring him up one time; I should like to he ever made with reference to the boy, as to see him. That was about five years ago; who he was. He would say: 'I want a suit may be a little longer. He brought him in for the boy.' The way he spoke, I thought afterwards a couple of times, and they had it was his boy, though I do not remember dinner together. I says to Mr. Jessup: his saying whose boy it was. He selected You cannot deny that boy; he is the very the best goods, and made no objection to the picture of you.' Jessup said: The boy puts price. I think I last made an overcoat. I│me to a good deal of trouble sometimes now. cannot remember. It must have been ten or twelve years ago.'

(h) "I knew Mr. Jessup in his life-time At one time he came and asked me the fare to San Diego. I told him, and asked him

It don't matter; I will never forget him. He said he had property on Stevenson street and on Clay street,-some property that he said he would make over to him. He was sick then a great deal. He could hardly walk sometimes.

and at lunch, and never heard him speak of having a son. But this is testimony of a negative kind, and entitled to but little weight. Besides the fact that it appears that the deceased was a reticent man, not given to talking about his affairs, he would not be likely to discuss such a matter under such circumstances, and, if he had, the witnesses would not be likely to remember it. There is evidence tending to show that the respondent was christened under the name of Richard Page Jessup, and that this was done at the request of the deceased, but as to the latter the evidence is conflicting.

his family, and otherwise treating it as if it were a legitimate child.”

Undoubtedly the most satisfactory way of establishing the necessary facts is by proof that the claimant has been received into the family, and given the family name. But this is not necessary where there is sufficient proof of a reason for not having done either, as we think is shown in this case. The deceased could not take the respondent into his family, because he had none. He did not openly give him his name, for the reason that he feared the mother, or some of her family, would attempt to take him from him. Was this evidence sufficient to show an But he did give him the Christian name of a adoption? This depends, in part, upon the favorite brother, and expressed the hope that construction to be given to the two statutes in he might be able to raise him to be like his force during the time covered by the testimony. uncle. In other respects he treated him as The appellants contend that under section 9 such a man might be expected to treat his of the statutes of 1870, which provides for legitimate son; and that he openly and pubthe adoption of a child "by treating, receiv-licly acknowledged him to be his son there ing, or acknowledging him publicly as his or can be no doubt, if the witnesses who testitheir own," should be construed to mean re-fied to the facts were to be believed. Whether ceiving and acknowledging, and that both they were worthy of belief or not was for the must be proved to show an adoption. As court below to determine. He performed towe view the evidence, it is unnecessary towards the respondent the duties which would determine this question. If the testimony have devolved upon him as the father of a is sufficient to establish one of these requis- legitimate child, viz., those of protection, ites, it is equally sufficient to prove the other. maintenance, and education. Therefore he But it is further contended that the require-treated him as his legitimate child. When ment that he should publicly acknowledge the status of the respondent was thus fixed him as his own legitimate child is not estab-it could not be affected by subsequent acts of lished by proof that he acknowledged him the deceased, by failing to name him in his openly to various persons as his son; that a public acknowledgment, as here used, means some formal acknowledgment of him as his legitimate son, in an open and public way; and that it is not enough to show that he made such acknowledgment to friends and acquaintances, no matter how many. We do not so understand the statutes. To establish his right to inherit, a claimant must prove two things: (1) That he is the illegit imate child of the alleged father; (2) that he has been openly and publicly acknowledged and received and treated as such. But, in order to avoid imposition and fraud, the statute requires that these things shall be established by certain proof. Under the statute of 1870, it must be proof of his "treating, receiving, or [and] acknowledging him publicly as his own legitimate child." That is to say, he must treat, receive, or (and) acknowledge him as if he were his own le- J.; PATERSON, J. gitimate child; and in order that the proof may be made by disinterested parties, and fraud and imposition avoided, all of these things must be done openly and publicly, and not secretly. But this does not mean, as counsel for appellants seem to think, that the alleged father must cry out from the housetops: "This is my illegitimate son, that I now and here publicly acknowledge as my own legitimate son," -or go about with a lie upon his lips, saying: "This is my legitimate son." Section 230 of the Civil Code, although differently worded, is in effect the same. The language is: "By publicly acknowledging it as his own, receiving it as such into

will or otherwise. The statute, together with other acts done under it as will constitute an adoption, fixes the status of the illegitimate child irrevocably. McGunnigle v. McKee, 77 Pa. St. 81; Hosser's Succession, 37 La. Ann. 839.

It is said that the statutes under which the respondent claims to have been adopted were enacted after the will of the deceased was executed, and therefore the adoption, if proved, cannot affect the rights of parties named as legatees in the will; but the will gave no vested right at the time of its execu tion, and for that reason, if for no other, the point is not well taken. Sewall v. Roberts, 115 Mass. 262. The evidence is sufficient to sustain the order of distribution. Order affirmed.

We concur: BEATTY, C. J.;

I dissent: THORNTON, J.

SHARPSTEIN,

MCFARLAND, J. I dissent, and, if other duties permit, may express my views at length hereafter.

(79 Cal. 525)

FEENEY v. HOWARD et al. (No. 11,567.) (Supreme Court of California. July 1, 1889.) TRUSTS-EXPRESS AND IMPLIED-STATUTE OF

FRAUDS.

1. A grantor conveying land by a deed reciting a valuable consideration, in the absence of actual or constructive fraud, accident or mistake, cannot show by parol that no consideration passed, and

that the conveyance was made in trust, the grantee agreeing to reconvey upon request.

2. Mere failure to comply with the promise to reconvey is not such evidence of fraudulent intent in procuring the conveyance as will take the case out of the operation of the statute of frauds.

3. Though, when no consideration for a conveyance is either recited therein or proved, a trust will result in favor of the grantor, parol evidence will not be admitted as between the parties to contradict the recital of such a consideration for the purpose of raising such a trust.

the estate is involved. His deed as administrator may therefore be dismissed from consideration. The question to be determined is whether, as between Michael Feeney and his grantee, a trust can be established in the manner attempted.

1. Unless the case can be brought within some one of the exceptions hereinafter noticed, we think that it is clear that the stat4. Nor would the fact that the grantee acted un-ute of frauds is a defense to the action, and der the deed, doing nothing but what the terms of that the parol evidence was improperly adthe deed authorized, constitute such a part permitted. If a trust could be raised in such a formance as will take the case out of the statute.

Commissioners' decision. Department 1. Appeal from superior court, city and county of San Francisco; JAMES G. MAGUIRE, Judge. Action by Michael Feeney against James Howard, the San Francisco Savings Union and others, to declare a trust in the proceeds of land conveyed by plaintiff to defendant Howard. Judgment for plaintiff, and defendant Howard appeals.

5. The statute of frauds need not be specially way, what operation could the statute of pleaded to an action to enforce such a parol trust, frauds ever have? The authorities are overif the agreement is itself denied by defendant's whelming to this effect. In the case of Raspleadings. dall's Adm'rs v. Rasdall, 9 Wis. 379, the ancestor of the plaintiff conveyed certain real property to the defendant, and it was sought to be shown that the transfer was without consideration, and upon a parol agreement to reconvey upon request. But the court held that this could not be done, and PAINE, J., delivering the opinion, said: "We do not feel called upon to cite authorities to show that in the absence of fraud, accident, or mistake, parol evidence cannot be received to prove that a deed absolute on its face was given in trust for the benefit of the grantor; and we have not been able to find anything in the case to make it an exception. cannot see why, if this evidence is to be received to establish this trust, every other deed in the state may not be shown by parol to have been given upon trust, and the statute of frauds be entirely annulled." And there are numerous authorities to the same

R. Percy Wright, for appellant. Clara S. Foltz and J. C. Bates, for respondent.

We

See Barr v. O'Donnell, 76 Cal. 469, 18 Pac. Rep. 429; Sturtevant v. Sturtevant, 20 N. Y. 39; Wheeler v. Reynolds, 66 N. Y. 227; Titcomb v. Morrill, 10 Allen, 15; Ratliff v. Ellis, 2 Clarke, (Iowa,) 59; Fouty v. Fouty, 34 Ind. 433; Perry v. McHenry, 13 Ill. 227; Burden v. Sheridan, 36 Iowa, 125; Morrall v. Waterson, 7 Kan. 199; Lawson v. Lawson, 117 Ill. 98, 7 N. E. Rep. 84; Dean v. Dean, 6 Conn. 284; Walker v. Locke, 5 Cush. 90; Boyd v. Stone, 11 Mass. 342; Metcalf v. Brandon, 58 Miss. 842; Bonham v. Craig, 80 N. C. 224; Donohoe v. Mariposa Co., 66 Cal. 327, 5 Pac. Rep. 495. In some of these instances the case might possibly have been taken out of the statute on the ground of a fiduciary relation, but that feature did not receive attention. Then, can the case be brought within any of the recognized exceptions to the above general rule? We do not think it can.

HAYNE, C. Suit to declare a trust. The material facts are as follows: One Catherine Feeney and the plaintiff, Michael Feeney, were tenants in common of a certain tract of land. She died, and Michael Feeney was appointed her administrator. He made two deeds to the defendant Howard, which were dated on the same day, and purported to convey the same property, and recited a valu-effect. able consideration. One of these deeds was made by Michael Feeney as administrator of Catherine Feeney, and the other by him in his individual capacity. Howard subsequently conveyed the property to trustees to secure a debt to the San Francisco Savings Union, and, this debt not having been paid, the trustees sold the property, and, after satisfying said debt, have a certain balance in their hands, which they are ready to pay to the person entitled thereto. The controversy relates to this balance. Michael Feeney, in his life-time, commenced the present suit in his own name, (not as administrator,) to have it declared that he was entitled to said balance. On the trial he introduced in evidence the deeds above mentioned, and then offered parol evidence to prove that they were without consideration, and that the property was conveyed to Howard upon certain trusts, and was to be reconveyed on request. Howard objected on the ground of the statute of frauds. The parol evidence was admitted against such objection, to which Howard excepted; and judgment was given for the plaintiff, from which, and from an order denying a motion for a new trial, the appeal is taken. Subsequent to the appeal Michael Feeney died, and his administrator was substituted. It is to be observed that, since Michael Feeney did not sue as administrator, no question as to the rights of

(a) The counsel for the respondent is in error when he contends that the case presents features of actual or constructive fraud. No actual fraud was alleged. A material ingredient of actual fraud is the fraudulent intent, and this must be alleged as one of the facts constituting the fraud. Moss v. Riddle, 5 Cranch, 351. And if it be assumed, for the purposes of the opinion, that there may be cases where a fraudulent intent would necessarily be inferred from the allegation of certain facts, and that a sale