The title to the real estate owned by decedent at the time of his death is so put in issue in this case that the determination of this cause necessarily involves a freehold. ( Winkelmann v. Winkelmann, 345 Ill. 566.) Plaintiff, therefore, appeals directly to this court. Plaintiff was born February 20, 1923, the son of Edward Lee Bartlett and Genevieve Chappelle Bartlett.
By numerous decisions of this court, the most recent of which is Weiss v. Beck, 1 Ill.2d 420, it has become the settled rule of law that to be entitled to a decree for specific performance of a contract for adoption it is necessary that the contract be proved as alleged by evidence that is clear and convincing. To this end, as pointed out in the Weiss case, there have been only three cases in this jurisdiction where the existence of a contract to adopt has been decreed, namely, Lee v. Bermingham, 199 Ill. App. 497; Winkelmann v. Winkelmann, 345 Ill. 566, and Soelzer v. Soelzer, 382 Ill. 393. In each the proof included either a written memorandum of the alleged agreement to adopt, or the positive testimony of a surviving witness who was present and heard the making of the agreement to adopt.
Carl Weiss, plaintiff below, instituted this action in chancery in the circuit court of White County against defendants, the heirs-at-law of Minnie Stocke Stokes, to decree a virtual adoption of plaintiff by Minnie Stocke Stokes and Phillip Stocke, her first husband, pursuant to an alleged parol agreement, and to quiet title of plaintiff to certain real estate located in White County. The title to real estate is so put in issue by this action that upon a determination of the cause either the plaintiff or the defendants will necessarily lose a freehold. ( Winkelmann v. Winkelmann, 345 Ill. 566.) Hence, the appeal comes directly to this court. George and Margaret Appel, husband and wife, resided on a farm in White County, around the turn of the century.
The trial court held that the adoption proceedings were void but that an agreement to adopt existed. From a decree for plaintiff the defendants have appealed. For instances in which this Court has upheld a decree for specific performance of an agreement to leave property, at death, to a child who, on the basis of such promise, has been taken into the home and treated as a child of the promisor, see Wright v. Wright, 99 Mich. 170 (23 L.R.A. 196); Bassett v. American Baptist Publication Society, 215 Mich. 126 (15 A.L.R. 213); Jones v. Ireland, 225 Mich. 467; Lugauer v. Husted, 228 Mich. 76; Willard v. Shekell, 236 Mich. 197. For cases from other jurisdictions see Winklemann v. Winklemann, 345 Ill. 566 ( 178 N.E. 118); Walsh v. Fitzgerald, 67 S.D. 623 ( 297 N.W. 675); Eldred v. Glenn (Mo.App.), 52 S.W.2d 35; Van Dyne v. Vreeland, 11 N.J. Eq. 370; Fiske v. Lawton, 124 Minn. 85 ( 144 N.W. 455) and cases cited therein. With the lips of plaintiff's parents and of Doctor Carr sealed by death, the lips of plaintiff were sealed by the statute.
Plaintiff concedes that her mother was never adopted by decedent in a "valid legal proceeding," but argues that the trial court erred in dismissing count I of her amended complaint based upon two equitable doctrines claimed to apply to the facts alleged, namely, "contract to adopt" and "equitable adoption." • 1 Relying upon the contract to adopt theory as developed in Monahan v. Monahan (1958), 14 Ill.2d 449, 153 N.E.2d 1, Weiss v. Beck (1953), 1 Ill.2d 420, 115 N.E.2d 768, Winkelmann v. Winkelmann (1931), 345 Ill. 566, 178 N.E. 118, and In re Estate of Drisch (1969), 112 Ill. App.2d 242, 250 N.E.2d 513, plaintiff avers that the aforegoing factual allegations, if proved, would establish a contract to adopt and plaintiff's right to be declared an heir of decedent. Absent from the pleadings, however, is any allegation that a contract to adopt was ever formed or existed.
See Edwards, 106 Ill.App.3d at 637, 62 Ill.Dec. 407, 435 N.E.2d 1379. This makes so-called equitable adoption, as recognized in many states, essentially indiscernible from the Illinois cases involving a failure to follow the statute for adoption that have proceeded on a contract theory. Cf. Monahan, 14 Ill.2d at 452–54, 153 N.E.2d 1;Dixon National Bank of Dixon, Illinois v. Neal, 5 Ill.2d 328, 334, 125 N.E.2d 463 (1955); Franzen v. Hallmer, 404 Ill. 596, 604, 89 N.E.2d 818 (1950); Soelzer v. Soelzer, 382 Ill. 393, 399–400, 47 N.E.2d 458 (1943); Winkelmann v. Winkelmann, 345 Ill. 566, 574, 178 N.E. 118 (1931); In re Estate of Edwards, 106 Ill.App.3d 635, 637, 62 Ill.Dec. 407, 435 N.E.2d 1379 (1982); Lee, 199 Ill.App. at 501–02;In re Estate of Drisch, 112 Ill.App.2d 242, 248–50, 250 N.E.2d 513 (1969); Robbins v. Millikin National Bank of Decatur, 334 Ill.App. 190, 194, 78 N.E.2d 819 (1948). ¶ 53 A few states, however, have refused to apply a steadfast requirement that an expressed or implied contract to adopt exists before finding that an equitable adoption has occurred.
State of Kansas ex rel. Winkle Terra Cotta Co. v. United States Fidelity Guaranty Co., 322 Mo. 121, 14 S.W.2d 576. We have decided that it is unnecessary and would be unrewarding to determine whether the substantive law of Missouri or Illinois is controlling herein, as the courts of each state recognize the doctrine of equitable adoption. Weiss v. Beck, 1 Ill.2d 420, 115 N.E.2d 768; Winkelmann v. Winkelmann, 345 Ill. 566, 178 N.E. 118; Soelzer v. Soelzer, 382 Ill. 393, 47 N.E.2d 458; Fisher v. Davidson, 271 Mo. 195, 195 S.W. 1024, L.R.A. 1917F, 692; Lynn v. Hockaday, 162 Mo. 111, 61 S.W. 885; Taylor v. Coberly, 327 Mo. 940, 38 S.W.2d 1055. Plaintiff concedes that in order to establish an oral contract of adoption she has the burden of proving the agreement by clear, cogent and convincing evidence.
We find no evidence here of any agreement by Henry Hallmer to adopt either of appellants, or that the Catholic orphanage, from whence they came, had any authority to consent or in any way participated in any manner toward permission or the carrying out of the adoption. The case of Winkelmann v. Winkelmann, 345 Ill. 566, presents facts and circumstances that are not comparable to the identical facts in this case. In the Winkelmann case it was clearly shown by the evidence that Winkelmann said he and his wife would take the baby and adopt her as their legal child.
The basis is the full performance of the contract by the child, and its acquisition thereby of an equitable right to have the contract carried out. Crawford v. Wilson, 1913, 139 Ga. 654, 78 S.E. 30, 44 L.R.A., N.S., 773. For the sake of brevity, we omit many of the cases in other jurisdictions which have so decided, there being, in a number of states, several cases on the subject. The states so holding, with at least one reference to a leading case in each, are New York ( Middleworth v. Ordway, 191 N.Y. 404, 84 N.E. 291), Illinois ( Hutton v. Busaytis, 326 Ill. 453, 158 N.E. 156 and Winkelmann v. Winkelmann, 345 Ill. 566, 178 N.E. 118), Minnesota ( In re Herrick's Estate, 124 Minn. 85, 144 N.W. 455, Odenbreit v. Utheim, 131 Minn. 56, 154 N.W. 741, L.R.A. 1916D, 421; In re Firle's Estate, 197 Minn. 1, 265 N.W. 818), Michigan ( Wright v. Wright, 99 Mich. 170, 58 N.W. 54, 23 L.R.A. 196), Kansas ( Hickox v. Johnston, 113 Kan. 99, 213 P. 1060, 27 A.L.R. 1322; Malaney v. Cameron, 98 Kan. 620, 159 P. 19), Nebraska ( Franks v. Horrigan, 120 Neb. 1, 231 N.W. 27), Missouri ( Johnson v. Antry, Mo. Sup., 5 S.W.2d 405), South Dakota ( Walsh v. Fitzgerald, 67 S.D. 623, 297 N.W. 675), Texas ( Cheney v. Coffey, 131 Tex. 212, 113 S.W.2d 162; Jones v. Guy, 135 Tex. 398, 143 S.W.2d 906, 142 A.L.R. 77), Florida ( Sheffield v. Barry, 153 Fla. 144, 14 So.2d 417), Montana ( Gravelin v. Porier, 77 Mont. 260, 250 P. 823), Oklahoma ( Eggstaff v. Phelps, 99 Okla. 54, 226 P. 82), Iowa ( Chehak v. Battles, 133 Iowa 107, 110 N.W. 330, 8 L.R.A., N.S., 1130, 12 Ann. Cas. 140), California ( In re Taggart's Estate, 190 Cal. 493, 213 P. 504, 27 A.L.
The title to the homestead was so put in issue that the decision necessarily involved a freehold. Kagy v. Luke, 357 Ill. 512; Burke v. Kleiman, 355 Ill. 390; Long v. Wilson Stove and Mfg. Co. 354 Ill. 465; Ellis v. Righter, 351 Ill. 545; Christie v. Brouillette, 350 Ill. 60; Anderson v. Anderson, 349 Ill. 40; Winkelmann v. Winkelmann, 345 Ill. 566. In determining whether a freehold was involved on the appeal to the Appellate Court, we are not concerned with the question of whether the probate court had jurisdiction to adjudicate the question of whether appellant had a homestead interest in the premises.