Pangarova v. Nichols , 1966 Wyo. LEXIS 174 ( 1966 )

Mr. Justice GRAY

delivered the opinion of the court.

Plaintiff commenced an action against the defendant as executrix of the estate of Nick A. Nichols, deceased, to recover damages for a breach of contract purportedly made by deceased in his lifetime to adopt plaintiff and make her his heir. The case was tried with a jury present, and at the conclusion of the plaintiff’s evidence the trial court sustained the motion of the defendant for a directed verdict and entered judgment accordingly. From the judgment plaintiff appeals.

The action taken by the trial court is to be viewed under the prevailing rule that the evidence offered by plaintiff will be taken as true with all the reasonable inferences and intendments to be drawn therefrom. Hawkey v. Williams, 72 Wyo. 20, 261 P.2d 48, 55; 73 Wyo. 463, 281 P.2d 447.

By way of general information concerning the controversy, the record discloses that the decedent came to this country from Bulgaria in the year 1913. He left behind a brother, Marin, who was married. Plaintiff is the youngest child of the brother and his wife. The decedent settled in Casper, Wyoming, became a naturalized citizen, and in the year 1929 married his first wife, Marie. The couple had no children. Over the years decedent prospered and at the'time of his death left an estate valued at approximately $162,000. Sometime prior to the year 1947 the decedent and his wife Marie became interested in bringing plaintiff to America, and commencing in about the year 1947 there was 'mutual correspondence between the decedent, the plaintiff, and decedent’s brother Marin toward' that end. ' Understandably, Bulgaria being a Communist country, difficulty was encountered in arranging for plaintiff to come to the United States, and there was a d'elay of several years. In the meantime decedent’s first wife, Marie, died in February 1955. In June 1956 decedent, who was then 69 years of age, married the defendant, who was then 35 years of age. Eventually the obstacles preventing. plaintiff from coming to the United States were overcome and she arrived here in- January 1957. She was met by the decedent and the defendant at the airport in Casper and taken to their home. She remained there for a period of approximately one month when, because of conditions existing in the home upon which we shall elaborate further, she left the home and took up residence in an apartment secured for her by the decedent. She remained there for approximately one and a half years, at the end of which time she moved her residence to Denver, Colorado, and did not again see the decedent. The decedent died testate in the year 1962, and by will all of his property was left to the defendant. The within action was commenced on March 20, 1963.

The claim of plaintiff is that decedent, as disclosed by the correspondence mentioned and other circumstances, made an offer that if plaintiff would come to the United- States he would adopt her and make her -his heir; that plaintiff accepted such •offer and performed or stood ready to perform all of the conditions imposed upon her by the resulting contract; and that the contract was breached by the decedent in disposing of his property contrary to such agreement, all to the damage of the plaintiff.

The answer of the defendant to the complaint was in substance a general denial, and no affirmative defenses were alleged. However, at one of the three pretrial conferences held in the matter defendant stated her contention to be that there was no contract entered into between the deceased and plaintiff; but should it be determined that such a contract was entered into, it was that plaintiff was to come here and take care of decedent for the rest of his life, and inasmuch as that was not done plaintiff failed in her performance under the contract and could not recover.

The trial court in stating its reasons for directing the verdict took the view that the .letters upon which plaintiff relied did not fix the terms of the agreement with sufficient definiteness; that proof of a contract “of this nature must be direct and definite”; that there was no proof of such a change in position or action on the part of plaintiff “that to deny relief would amount to fraud”; that there was no performance; that she left the home of decedent to avoid disharmony in the home; that her coming here “on her uncle’s money [was] not consideration that she put up.” Upon a careful review of the record, we are convinced that the trial court was under some misapprehension as to just what the burden of plaintiff was in making out a prima facie case.

For example, we briefly refer to the last two reasons assigned. The ruling that plaintiff had left decedent’s home to avoid disharmony is in substance a holding that plaintiff abandoned the contract. That was affirmative defensive matter in avoidance of the contract. Such matter was not pleaded by the defendant as required by Rule 8(c), W.R.C.P., and consequently was not an issue in the case. The same thing is true of the failure of consideration. Furthermore, the removal of an alien from the land of his birth and from his parents and relatives to the United States has, under circumstances quite similar to the case here, been held to be a sufficient consideration. 1 Page on Wills, § 10.6, p. 4S7 (1960), and the cases there cited.

Largely determinative of the disposition to be made of the other grounds assigned are questions that relate to some sixty letters written by the deceased to the plaintiff, to his brother Marin, or to both, upon which plaintiff relied as disclosing the intention of decedent and as evidence of the offer made by decedent. Therefore, it will be helpful first to dispose of the matter of the letters. The letters were in the Bulgarian language. The parties stipulated that the letters were written by the deceased and that the translation into English appended to the letters was substantially correct. Nevertheless, at the time these letters were offered the defendant objected that no proper foundation had been laid for the reason that there was no evidence that the letters were “received by plaintiff, nor * * * ever mailed, nor that she ever relied upon the same, if the same constituted a contract.” Defendant also objected that the letters were hearsay, incompetent, irrelevant, immaterial, and in contravention of the Dead-man’s Statute. The objections seem to have been sustained in part and overruled in part by the trial court’s ruling that the letters would be admitted for the limited purpose of “showing intention and only as a statement against interest, being in his [decedent’s] handwriting.” We are not persuaded that the court was warranted in so limiting the preferred written evidence. In all fairness we can understand the trial judge’s concern in, as he put it, firing “a mass of papers of this kind [at the jury] and say * * * ‘you write this contract.’ ” A large number of the letters had little, if any, probative value. Yet, a review of the letters will •disclose, without too much difficulty, language tending to establish that an offer as claimed by plaintiff had been made in terms sufficient as a matter of law to form a contract, if accepted by the plaintiff. We shall comment on this further. A number of the letters were also material on whether or not the claimed offer, before acceptance, had been modified or withdrawn. Some of the letters, as the trial court recognized, were material for other purposes. Consequently, with respect to the letters, we agree with plaintiff that the court erred in attempting to limit the purpose of the offer; provided, of course, that a proper foundation had been laid.

As we understand the court’s ruling, it did overrule the objection as to foundation and we think properly so. Plaintiff’s lips as to receipt of the letters were sealed by the death of the writer. That, however, would not prevent proof of the mailing and receipt thereof by other evidence. What was the proof? In addition to the stipulation that the letters were in the handwriting of the decedent and that the translations were substantially correct, the record discloses that the letters were in the possession of the plaintiff; that there was mutual correspondence extending over a period of several years; a substantial number contain acknowledgments by each of the receipt of letters written by the other; and each letter bears a date upon which it was written. Under the authorities there can be little question that a proper foundation was laid. Metropolitan Life Ins. Co. v. Armstrong, 8 Cir., 85 F.2d 187, 194; Gosney v. Costigan, 326 Mo. 1215, 33 S.W.2d 947, 952; Scott’s Ex’r v. Beland, 114 Vt. 383, 45 A.2d 641, 646.

Defendant’s contention that the letters were not admissible because there was no proof that plaintiff had relied or acted upon the letters is wholly without merit. First, the objection states no proper ground for excluding the letters as evidence of the contract. Hendrix v. Pique, 237 Ala. 49, 185 So. 390, 394. Secondly, it overlooks direct and circumstantial evidence to the contrary.

We now turn to what these letters and other evidence tend to prove.

In a letter to plaintiff dated December 19, 1946, decedent said he was inquiring about procedure for obtaining a passport for her to come to America “and stay for always here if you are agreed, and your parents are agreed.” Then in a letter to plaintiff and her mother and father dated May 28, 1947, decedent said, “I think right after Tsetsy [plaintiff] comes here to us we will adopt her or transfer the property on her. I’ll try as much as I can of helping her in every side, may come a day she will help me. * * * We are ready always with the biggest pleasure (to have her) if you are also.” Several more letters intervened between that letter and a letter written on October 26, 1954, to the father and mother of plaintiff; and except as those letters reflect a determination and continuing desire on the part of decedent and his then wife Marie to bring plaintiff to the United States, not much of importance appears.

The letter of October 26, 1954, is, however, of significance. In this letter decedent, after informing of the terminal illness of Marie, stated:

“ * * * i possess more than $100,000.00 property without any debts. I have a big amount of money in the hank, because I bought this year 3 houses, one house with 3 rooms, one house with 4 rooms, one house with 7 rooms all of them paid in cash, also a car $5,000.00 T.V. set $700.00 all are paid cash. Your sister in law doesn’t love her daughter and grandchildren and that’s why all properties are in my name. We have a mutual will between us, if she dies all remains to me, if I die all remains to Marie. If Tsetsy come we will adopt her and all will remain to her, she will be our heir, otherwise I don’t know who else is going to inherit my properties and if I get ill I would know I’ll have close relative to take care of me, not to expect of strangers, they will take advantage of my property, instead you to have it.”

It was contended by defendant that the ■offer, if it was an offer, was made to plaintiff’s parents and not to her and was never communicated. We find no merit in that. Other evidence discloses that plaintiff had then reached her majority. Under § 1-726, W.S.1957, authorizing the adoption of an adult person, it is the adoptee that is required to consent to the adoption and not the parents. That was known or should have been known by decedent. Under the circumstances the question of whether or not the promise was made not only to plaintiff’s parents but, also, through them as intermediaries, to the plaintiff was a question of fact. Kirch v. Nicholson, 42 Wyo. 489, 297 P. 398, 399. Moreover, where as here the- consideration moves in whole or in part from the child, the parents may be regarded as agents for the child. Green v. Green, 298 Mass. 19, 9 N.E.2d 413, 415. See also 17 Am.Jur.2d, Con-tracts, § 310, p. 738. That it was communicated could be inferred from the action taken by plaintiff subsequent thereto.

Another letter of importance is that written to plaintiff and dated February 29, 1956. In this letter decedent explains the ■difficulty he is having in getting a visa for her and for her to have patience. The letter then goes on to say:

“ * * * TOMORROW I WILL GO TO MAKE A NEW WILL, I WILL MAKE IT ALL TO BE LEFT TO YOU (AS MY BENEFICIARY) ,¹ IF SOMETHING BAD SHOULD PIAP-PEN TO YOU, PEKA WILL FOLLOW AFTER YOU, AND AFTER HER WILL BE HER CHILDREN, THIS WILL I DO NOT LIKE.”

“In this connection there is testimony by Mr. William Swanton, an attorney, that at ■one time a will was in effect naming plaintiff as the heir of decedent.

In other letters, written subsequent to the death of his wife Marie, the decedent told about women who were after him for his property, but assures plaintiff that when she comes to Casper she will find him “all alone.” He also requested that plaintiff not marry, assuring her that when she got there she would find a suitable husband. Then on June 5, 1956, the decedent wrote plaintiff, advising her that he was going to marry the defendant. On July 10, 1956, he apologized for not having written for some time and explained that the reason for his delay was his marriage to defendant. He also acknowledged a telegram in which plaintiff had congratulated him and wished him a happy life with defendant. Then deceased goes on to describe defendant, her new aunt, as being “very good, and she will like you, love you, very much, and she wishes you a sooner arrival here. I believe you will like her. Maybe she will be your mother even though she is young, 35 years of age. * * * do not think now that because I am married I will not love and respect you. You will be for me the closest one to me. And your Aunt Nike will also love you as I do. Before I marry her I talked to her about you, and she is completely agreed that she would love you and respect you more than anyone else. * * * Nike, your new Aunt is agreed with all her heart that we adopt you, and you will be our daughter.”

Other letters and the deposition of plaintiff’s father disclose that plaintiff, with financial assistance from her father, departed from the family home in Sofia, Bulgaria, for Paris, France, late in the year 1955, from which point she was to embark for the United States. She arrived at Casper in the latter part of January 1957 and moved into the home of decedent and his then wife, the defendant.

We mentioned above that plaintiff left the home about a month later. Within a short time thereafter decedent executed a new will whereby all former wills were revoked. By this will all of the property of decedent was devised and bequeathed to defendant with the proviso that if she predeceased him it would go to their children and if there were no children all of decedent’s property was to go to collateral relatives of the defendant.

In addition to the letters there was testimony of statements made by decedent to persons of long acquaintance. For example, Joye Kading testified that in about the year 1953 she and her husband visited the home of decedent. She testified that in their presence and in the presence of his then wife Marie, decedent said that “he and his wife felt since they had no heirs to leave their estate to, that the two of them had agreed that if his niece, Tsetsy Pangarova, would come to the United States, they would adopt her and make her their heir.” Ruby Drazick and her mother, Anna Tomlin, testified to similar statements made by decedent. While we have said that such testimony is “weak evidence and must be carefully scrutinized,” it is to be considered along with other evidence in the case. Slover v. Harris, 77 Wyo. 295, 314 P.2d 953, 962. The weight of it was for the jury.

Other evidence reflecting upon deceased’s testamentary intention can be found in the record, but we think the foregoing is sufficient for our purposes. Perhaps we should add that plaintiff by an offered amendment of the complaint — which seems to have been overlooked — concedes that if she is entitled to relief, it is to be measured by the value of the estate after deduction for payment of claims, costs of administration and such, and the statutory allowances made to decedent’s widow, the defendant. Such is in keeping with the general rule. In re Gary’s Estate, 69 Ariz. 228, 211 P.2d 815, 820; Ward v. Ward, 94 Colo. 275, 30 P.2d 853, 855; Tod v. Fuller, Fla., 78 So.2d 713, 714; Patecky v. Friend, 220 Or. 612, 350 P.2d 170, 176-177; In re Soles’ Will, 215 Wis. 129, 253 N.W. 801, 803.

We turn first to the quality of the evidence that plaintiff was required to produce. The trial court ruled that the contract had to be shown by direct evidence. While there is some authority to that effect, we have not gone that far even in cases where a claimant sought specific performance of an oral contract to make a will in consideration of personal services, which, of course, presents circumstances differing from this case. In a case of the former class we did say in Slover v. Harris, supra, that although such an agreement was enforceable the party seeking to establish it had a heavy burden. The evidence offered must be accepted with caution and carefully scrutinized. That was in keeping with the rule previously announced in Casper National Bank v. Curry, 51 Wyo. 284, 65 P.2d 1116, 1121, 110 A.L.R. 360, “that claims against the estates of' deceased persons should be scrutinized with-care and not permitted to prevail except upon clear proof.” We also said in Canada v. Ihmsen, 33 Wyo. 439, 240 P. 927, 938, 43 A.L.R. 1010, that a person may “contract to leave his property by will in the same manner that he may make a contract to sell it” and though “not favored” such contracts will be enforced if “clearly shown.” The purpose of the rules so pronounced was, of course, to guard against fraudulent claims easily advanced by false-testimony. Conversely, however, it was recognized that there are claims which, even though difficult of proof, warrant the-aid of equity to enforce and no expression will be discerned in the foregoing that would make claimant’s burden impossible in most cases, such as the rule imposed' by the trial court. It must be remembered that a claimant’s lips are sealed by the-death of the promisor. The authorities recognize that whether the evidence is direct or circumstantial is not decisive. Walter v. Warner, 10 Cir., 298 F.2d 481, 482, 483; In re Niehaus’ Estate, 341 Ill.App. 454, 94 N.E.2d 525, 527; In re Dull’s Estate, 184 Kan. 233, 336 P.2d 435, 439; Roberts v. Sutton, 317 Mich. 458, 27 N.W.2d 54, 55; In re Williams’ Estate, 10 Utah 2d 83, 348 P.2d 683, 685. The most that can be said of our previous admonitions. Is that we meant no more than to announce the reasonable rule — and the rule most often applied — which is that the evidence offered in proof of an oral contract to make a will must be clear and convincing'. 1 Page on Wills, § 10.43, p. 527, et sequitur (1960). The rule requires something more than a mere preponderance, but •does not connote proof beyond all reá-;sonable doubt. In re Dull’s Estate, supra; Bland v. Mentor, 63 Wash.2d 150, 385 P.2d 727, 728. Whether such evidence bears that quality is primarily for the trier of the facts. McMahon v. Auger, 83 Idaho 27, 357 P.2d 374, 378; Dilger v. McQuade’s Estate, 158 Wis. 328, 148 N.W. 1085, 1087.

Where as here, however, an offer has been made admittedly in the handwriting of the decedent the problem is rather simplified. It is only the oral testimony of decedent’s intentions and admissions having a bearing upon the terms of the offer and the circumstantial evidence of plaintiff’s acceptance of the offer that are required to meet the test.

The next question is whether the evidence adduced by plaintiff tended to establish, with a required degree of certainty, the terms and conditions of the claimed agreement. In this connection defendants have cited to us several cases pertaining to the showing that must be made to become ■entitled to the remedy of specific performance for enforcement of oral agreements. Here, of course, we are confronted with a promise in writing rather than an oral agreement. Another difficulty with those authorities is that plaintiff is not seeking specific performance. The action here is for damages for breach of contract. In Slover v. Harris, supra, 314 P.2d at 961, we noted that the requirements which defendants advance for evidence to establish that the minds of the parties met on definite terms were not so exacting in actions at law. See also 1 Page on Wills, § 10.5, p. 450 (1960).

In either case, however, most . courts consider and apply applicable general principles of the law of contracts. Nevertheless, with respect to contracts of the type under discussion, the courts are aware that such, contracts are usually entered into -by laymen without the aid of an attorney. It is recognized that their expressions, intentions, and understanding will vary in keeping with their intelligence .and experience.- For such reason a more liberal view is taken and it is not required .that the terms be expressed with the clarity and preciseness of contracts in the market place. The important thing is that their purpose has been made clear. McMahon v. Auger, supra; 94 C.J.S. Wills § 112, pp. 865, 866.

• In this connection we would point out that the contract claimed here was not one for personal services — the problem confronting us in Slover v. Harris and Casper National Bank v. Curry, supra. Neither is it a contract dealing solely with the matter of adoption. It is a contract containing a provision for adoption, coupled with a provision that the foster parent shall make the adoptee an heir. Such contracts are not uncommon in the case of minor children and are "generally construed to impose upon the adoptive parent an obligation to make the child an heir, which equity will specifically enforce.” Annotation 171 A.L.R. 1318. Our difficulty here is that an adult is involved. Nevertheless, in pursuing the question of whether or not the terms of the agreement are sufficiently shown by plaintiff’s evidence, it may be helpful first to refer to the language used in some of the more recent cases in this general area.

In In re Gary’s Estate, 69 Ariz. 228, 211 P.2d 815, 818, the decedent orally promised the grandparents of claimant that he would “feed and clothe and educate me [claimant] and make me his heir and that I should inherit a child’s part at his death.” Her testimony was corroborated by an uncle who was present at the time of the alleged conversation, his version being that decedent said of claimant that he wanted to “make her my lawful child so that she can inherit what is coming to her at my death.” The contest was between claimant and a subsequent wife. As in the instant case the defense contended that when such a contract is indefinite and uncertain a court of equity will not decree specific performance. Of this the court said:

“We are agreed with that statement, but cannot agree that it is applicable here. In this case the contract was established by uncontradicted evidence of two persons, and corroborated by the signed ap-lication of the deceased for the adoption of appellant, stating that she would inherit his estate. Such evidence is neither indefinite nor uncertain.”

In Frederick v. Christensen, 73 S.D. 130, 39 N.W.2d 529, 531, 532, claimant was legally adopted by the decedent but claimed that coupled with the agreement to adopt was an oral agreement that claimant would become the heir of the foster parents and receive their property upon their death. There was testimony of admissions made by the foster parents that they wanted “to adopt him [claimant] as their own child and give him everything when they were gone.” Also, that claimant “would be the only heir they would have.” There, as here, the lips of the claimant were closed by the death of the foster parents, but the supreme court under a rule more stringent than we have observed affirmed the judgment enforcing the contract. See also Crilly v. Morris, 70 S.D. 584, 19 N.W.2d 836, 837.

In Hicks v. Simmons, 10 Cir., 271 F.2d 875, 877, the oral promise made was that if the natural father and sister would give up custody of the claimants and make no objection to adoption, the foster parents “would give the plaintiffs a good home, educate them, and upon the death of the adoptive parents would leave their property to the plaintiffs [claimants].” The trial court’s judgment that the contract was sufficiently definite and should be enforced was affirmed.

In Foster v. Cheek, 212 Ga. 821, 96 S.E.2d 545, 546, 550, the claimant had alleged that decedent had orally promised to adopt her, to provide for her welfare, and make claimant “his heir to inherit at his death as if she had been his natural child.” The court held that the allegation was sufficient and if claimant proved that the promise was made, the court should decree that the claimant was entitled to recover the equivalent of what she would have received “had the adopter performed his contractual obligation to formally and legally adopt the child involved.”

Another case, In re McLean’s Estate, 219 Wis. 222, 262 N.W. 707, 708, although not dealing with the matter of adoption, is pertinent to the question of the sufficiency of plaintiff’s evidence to establish the promise made. Here the oral promise was that decedent would make provision in his will “sufficient to obviate his [claimant’s] becoming a public charge under the poor laws.” Subsequent to the promise the decedent made a will whereby he devised a farm to a cousin as trustee to pay the net income thereof to claimant, his brother, during the brother’s lifetime. However, decedent was married and as a result of his widow and an adopted daughter exercising their statutory allowance in lieu of taking under the will, the whole of the estate went to them. The trial court refused to admit the will to probate apparently on the ground that the claim of the brother was too indefinite as to terms. The supreme court reversed, holding that if the oral agreement was indefinite as to terms it was made definite by the will, and at 262 N.W. 710 stated as follows:

“ * * * What the testator does by a will made pursuant to the promise is taken as what he intended to do in fulfillment of it. What was left uncertain in the instant case was made certain by the testator’s performance of his promise.* * * "

See also In re Soles’, Will, 215 Wis. 129, 253 N.W. 801.

Is plaintiff’s evidence of the terms of the decedent’s promise analogous to the foregoing? We think it is. The letter of October 26, 1954, after describing the property which decedent owned,² goes on to say, “we will adopt her [plaintiff] and all will remain to her, she will he our heir.” The terminal illness of Marie was then known to both the decedent and the plaintiff. After Marie’s death in February 1955 ■decedent wrote to plaintiff saying he was making a new will, “ALL TO BE LEFT TO YOU AS MY BENEFICIARY.” The letter was followed by the execution of a will carrying decedent’s avowed intention and purpose into effect. In conjunction with that evidence there must also be considered the letter of July 10, 1956, wherein ■decedent, among other things, said that defendant had agreed “that we adopt you, and you will be our daughter.” When such evidence and other corroborating evidence is viewed as a whole in the light of the authorities cited, we think the trial court and this court cannot say that plaintiff’s •evidence as to the terms of the offer was so indefinite, unclear, and unconvincing that plaintiff failed to make out a prima facie case. True, there was some ambi.guity, but what the decedent meant by the language used in the letters was a question for the jury in the first instance.

There can be little doubt, also, that plaintiff’s evidence, if accepted by the jury, was sufficient to show the conditions imposed upon the plaintiff by decedent. Briefly, such evidence tended to establish that plaintiff was to leave her own family in Bulgaria and come to Casper; that she was to remain single until she arrived; that as an adopted daughter plaintiff owed decedent and his new wife affection, devotion, association, service, and obedience;³ .and that plaintiff was to consent to the adoption.

A further question is whether ■ or not there was evidence from which it could be inferred that plaintiff had accepted decedent’s offer. No written evidence disclosing an acceptance was produced. Nevertheless, as we noted above, acceptance could be shown by circumstantial evidence. It may be implied from the acts, conduct, and performance by the of-feree of the promise requested of him. 17 Am.Jur.2d, Contracts, § 45, p. 383. With respect to this it can scarcely be argued that plaintiff did not in good faith meet every obligation imposed upon her by the decedent up to the time she entered the Nichols’ home. She had not married and the parties stipulated that she came originally from Bulgaria to Casper in the month of January 1957, where she was met at the airport by decedent and the defendant and taken to their home. It was also stipulated that she remained there “for approximately a month; that she left the home; that she took up residence in an apartment by herself; that said apartment was secured for her by the decedent; that he paid the first month’s rent on the apartment; that thereafter she did not return as a resident to the home.” In view of the stipulation, the critical question is, What happened in the home during the period plaintiff was there? The only evidence pertinent to that question is the testimony of plaintiff’s witnesses Ruby Drazick and Anna Tomlin. Ruby Dra-zick, among other things, testified that on one occasion she was in the home and overheard an argument which lasted about cnc-half hour between decedent and defendant concerning plaintiff and the disharmony in the household. She also testified that at that time or later the decedent told her that he “couldn’t live with both, the way the wife reacted to her”; that he couldn’t live under that kind of strain, “so in order to get along in his household there would have to be some separation”; that “it would be best if Tsetsy left and he found other living quarters for her”; that “Tsetsy should leave his household”; that he had to do this “in order to keep peace with his wife.” Anna Tomlin testified that when decedent and plaintiff were in her home the plaintiff started to cry and said, “her uncle wanted her to move, told her she had to move and he brought her here.”

Recalling that on the state of the record we must accept such evidence as being true and recalling also that decedent had represented to plaintiff shortly before her embarkation from Europe that defendant would love her and had at least agreed that “we adopt you, and you will be our daughter,” it is difficult to understand how the trial court could hold as a matter of law that plaintiff had failed to produce sufficient evidence tending to show substantial performance and legal excuse for her failure fully to perform. The actions and conduct of the defendant and decedent’s failure to obtain her cooperation, as represented, was no excuse for decedent’s failure to meet his obligations. Gibson v. J. T. Allen Agency, Wyo., 407 P.2d 708, 709; 17 Am.Jur.2d, Contracts, § 416, p. 868; 94 C.J.S. Wills § 116b(1), p. 875.

Moreover, even assuming that plaintiff may have consented to the arrangement made for her by decedent, the question can well be asked if she consented to anything more than a change in the mode of living that might well be expected of an adult daughter. Considering all of the circumstances, it is our view that the question of whether plaintiff by way of conduct and performance had accepted the offer of decedent was primarily a question of fact and the trial court erred in ruling to the contrary. In this connection perhaps we should also mention that the question of the timeliness of acceptance has not been raised or argued.

Finally, we do not want to be understood as approving of the trial court’s ruling that plaintiff had the burden of showing that denial of relief would amount to fraud. The more reasonable rule is-whether or not it would be inequitable to' enforce plaintiff’s claim. On the basis of' the record as it now stands we are convinced the trial court could not declare that the claim of plaintiff was inequitable. Should the jury find that the contract claimed was made and was breached by the decedent, his widow would not be deprived of her statutory right to receive one-half of decedent’s estate as provided' in § 2-47, W.S.1957, and the property and rights vested in her by the provisions of §§ 2-213 to 2-217, inclusive, W.S.1957.

The judgment is reversed and the cause remanded with instructions to grant a new trial.

1 . The parentheses are not ours but are a part of the translation.

2 . In Taylor v. Cathey, 211 Ala. 589, 100 So. 834, 836, the court set aside a directed verdict primarily for the reason that decedent in a letter had described the property involved in the promise.

3 . The law implies these matters in the adoption of minors even though not expressed. Savannah Bank & Trust Co. v. Wolff, 191 Ga. 111, 11 S.E.2d 766, 771; In re Gary’s Estate, supra. Just what might be expected of an adult adoptee in the way of association, service, and obedience can no doubt best be measured by the experience of jurors in raising children of their own.