#### Benson, Appellant, *v.*Nicholas.

*Beal property*— Adoption—Parol *agreement to adopt*— Promise *to devise property*— Bjeciment.

Where decedent in his lifetime entered into a parol agreement with the father of a young child to adopt the child and at his decease to leave her all of his property, and thereafter the child and decedent lived together in the relation of parent and child, but deceased never legally adopted her, the child did not thereby acquire any title to real estate of the decedent, who died intestate, and in an action of ejectment thereafter brought by the child to recover such real estate, a verdict for the defendant was properly directed.

Argued April 24, 1916.

Appeal, No. 249, Jan. T., 1915, by plaintiff, from judgment of C. P. Erie Co., Sept. T., 1913, No. 87, on directed verdict for plaintiff in case of Reatba Benson v. Mary B. Nicholas.

Before Brown, C. J., Mestrezat, Potter, Stewart and Moschzisker, JJ.

Affirmed.

Action in ejectment. Before Walking, P. J.

Tbe opinion of tbe Supreme Court states tbe case.

Tbe lower court directed a verdict for tbe defendant. Plaintiff appealed.

*Error assigned,*among others, was- in directing a verdict for tbe defendant.

*M. Levant Davis,*for appellant.

*George M. Mason,*with him *Robert L. Roberts,*for appellee.

May 15, 1916:

Per Curiam,

Tbe real estate involved in this controversy belonged to James B. Nicholas, who died intestate, and is claimed by Mary B. Nicholas, a sister, as bis next of kin and only" *56heir at law. Reatha Benson, the plaintiff below, claiming that she had been 'adopted by parol as a child by James B. Nicholas and his wife, filed a bill, after the death of the husband, averring such parol agreement to adopt hei’, and praying that, notwithstanding their failure to legally adopt her as their child, effect be given to the said parol agreement of adoption by decreeing that she was entitled to such share of the husband’s estate as she would have been entitled to if she had been legally adopted. The decree of the lower court, dismissing her bill, was affirmed: Benson v. Nicholas, 246 Pa. 229. In this action she seeks to recover the real estate left by James B. Nicholas under what she alleges were the terms of the parol agreement to adopt her, made with her father. The parol agreement, even if made, gave her no title to the real estate in question. She submitted the following point to the court: “If the jury believe from the evidence that the plaintiff, when a child of less than a year old, was taken by the decedent, James Nicholas, and his wife, upon an agreement with the father of the child to take her and raise her as their own child, to adopt her, and in all respects to treat her as their own child, and to leave her any property which they would have upon their decease; and that pursuant to said agreement, they did take the plaintiff and raised her as their own child, and always treated her as such, giving her their Own name, and exercising the authority of parents over her, and maintaining the family relation during their lives, and that the said plaintiff was always thereafter recognized by the said James Nicholas and his wife as their own child; and she on her part performed the duties and services and rendered the obedience to them due from a child to its parents; and lived with them until she was married and maintained the family relation thereafter; and the said James Nicholas having died intestate possessed "of the lands in question, leaving plaintiff to survive him, and without having legally adopted her, that said agreement should be given *57effect and the verdict of the jury should be for the plaintiff for the lands in question.” In refusing this point and properly directing a verdict for the defendant, the learned trial judge said: “The facts therein stated, if all found in favor of the plaintiff, would not justify a recovery of this land.”

Judgment affirmed.