Rosenwald v. Middlebrook, Administrator of Estate of Charles Winser Adams,

• Decision Date: 30 March 1905
• Parties: LEON ROSENWALD, Appellant, v. MIDDLEBROOK, Administrator of Estate of CHARLES WINSER ADAMS, et al
• Court: Missouri Supreme Court

86 S.W. 200

188 Mo. 58

LEON ROSENWALD, Appellant, v. MIDDLEBROOK, Administrator of Estate of CHARLES WINSER ADAMS, et al

Supreme Court of Missouri, Second Division

March 30, 1905

Appeal from Jackson Circuit Court. -- Hon. W. B. Teasdale, Judge.

Affirmed.

Scarritt Griffith & Jones and I. J. Ringolsky for appellant.

(1) In this State a court of equity will specifically enforce an oral contract to devise or leave all of one's property to another person in consideration of services rendered in the relation of an adopted son or otherwise. Such services are a valuable consideration and it would be a fraud upon the person rendering the services or acting in such capacity to refuse to enforce the contract. The contract and its performance may be established by the admissions and declarations of the party in default, together with all the other facts and circumstances in evidence. Halsa v Halsa, 8 Mo. 303; Wright v. Tuisley, 30 Mo 389; Gupton v. Gupton, 47 Mo. 37; Sutton v. Hayden, 62 Mo. 101; Hiatt v. Williams, 72 Mo. 214; West v. Bundy, 78 Mo. 402; Sharkey v. McDermott, 91 Mo. 647; Stone v. Pennock, 31 Mo.App. 544; Healey v. Simpson, 113 Mo. 340; Teats v. Flanders, 118 Mo. 660; Nowack v. Berger, 133 Mo. 24; Hall v. Harris, 145 Mo. 614; Alexander v. Alexander, 150 Mo. 579; Steele v. Steele, 61 Mo. 566; Lynn v. Hockaday, 162 Mo. 111; Kinney v. Murray, 170 Mo. 674; McElvain v. McElvain, 171 Mo. 244; Asbury v. Hicklin, 81 S.W. 390. (2) This court will try this case de novo, this being a suit in equity. The evidence given at the trial, both by deposition and orally, is presented to this court in haec verba. Although the Supreme Court has frequently said that in equity cases where the witnesses testify orally, it will defer somewhat to the findings of the chancellor, yet this court declared that "by such remarks we are not to be understood as meaning that we are concluded by the finding of facts by the court below -- far from it; such remarks do not mean that we have abdicated our supervisory control over questions of fact in equity causes; they only mean that when there is a conflict of testimony, or where the testimony is evenly balanced and the finding of the chancellor appears to be correct, then we will so far defer to his finding as to sanction it by our affirmance; that and nothing more." Benne v. Schnecko, 100 Mo. 250; Blount v. Spratt, 113 Mo. 48; Parker v. Roberts, 116 Mo. 657; Lins v. Lenhardt, 127 Mo. 271; Dalrymple v. Craig, 149 Mo. 345; Alexander v. Alexander, 150 Mo. 598; Taliaferro v. Evans, 160 Mo. 380. (3) (a) A "reasonable doubt" must be actual, not a forced doubt. It should be strong, clear, fair and sensible, based on common sense; it should be a substantial, well-founded doubt. Proof of a fact "beyond a reasonable doubt" does not mean proof to an absolute certainty, or absolute proof. A doubt, to be "a reasonable doubt," must arise out of the evidence or want of evidence after a full consideration by the chancellor of all the evidence in the case. But this rule does not require that the proof shall be free from conflict. State v. Good, 132 Mo. 114; State v. Turner, 110 Mo. 198; State v. Gann, 72 Mo. 374; State v. Benham, 160 N.Y. 444; Dent v. State, 105 Ala. 14; People v. Finley, 38 Mich. 482; State v. Harrison, 23 Mont. 81; State v. Woodruff, 31 Fla. 320; Emery v. State, 101 Wis. 627; State v. Jefferson, 43 La. Ann. 995; State v. Senn, 32 S.C. 392; Carlton v. People, 150 Ill. 181; State v. Summer, 55 S.C. 32; State v. Coleman, 20 S.C. 455; Ferguson v. State, 52 Neb. 436; Talbert v. State, 121 Ala. 33; Goddard v. State, 42 Ill.App. 487. (b) A "reasonable doubt" is an honest, substantial misgiving, generated by the insufficiency of proof, not by the ingenuity of counsel, unwarranted by the testimony, nor one born of a merciful inclination to permit defendants to recover, nor one prompted by sympathy for a party to the suit or those connected with them. Hopt v. Utah, 120 U.S. 430; U. S. v. Harper, 33 F. 471; U. S. v. Newton, 52 F. 275.

P. E. Hatch and C. O. Tichenor for respondent.

(1) This court has refused "the open door" to this kind of cases. From Sutton v. Shipp, 65 Mo. 297, to the present, the court has decided thirteen cases of this kind, if we have figured correctly. The decisions were against claimant in all but four: Sharkey v. McDermott, 91 Mo. 647, where the petition was held good on demurrer; Alexander v. Alexander, 150 Mo. 579, where the claimants's case was made out by letters; Nowack v. Berger, 133 Mo. 24, where the consideration for the adoption was the marriage of the mother to the one adopting, and Lynn v. Hockaday, 162 Mo. 111, where all conceded by the pleadings that the child had been adopted, but the question was whether it had been adopted by the husband or the wife. Two of these cases, Asbury v. Hicklin and Grantham v. Gossett, were decided since the trial of this case. (2) Counsel claim that the finding and decree are entitled to no consideration in this court. We admit that, if this is not a case where the court should defer to the judgment of the chancellor, there can be none. In this kind of case this court said, in Goodin v. Goodin, 172 Mo. 48, "all the evidence was given orally in court before the chancellor. He was in a much better position to determine the credibility of the witnesses, to properly weigh their evidence and to reach a correct conclusion on the matters in controversy than we are." N.E.L. & T. Co. v. Browne, 177 Mo. 423; Asbury v. Hicklin, 81 S.W. 393. (3) In a suit to specifically perform an agreement for an interest in an estate and to declare the heirs, as to the realty, to be trustees to the extent of such interest, for plaintiff, the proof of the contract must be so cogent, clear and forcible as to leave no doubt in the mind of the chancellor as to its terms and character. There must be no doubt in the petition as to the statement of case or in the contract. There must be like proof that the acts done unmistakably refer to and result from that contract. There must be no equivocation or uncertainty in the case. It must be in terms a contract and not a mere declaration of intention or expectation. In fine, there must be a contract definitely and conclusively proven. Casual and loose conversations, when not supported by other evidence, are entitled to little, if any, weight. This is dangerous testimony, is looked upon with jealously, and should be weighed in the most scrupulous manner. Agreements of this kind are looked upon with suspicion and ought not to be encouraged. These agreements are within the Statute of Frauds and are sustained only where it would work a fraud if one party was allowed to plead it. Goodin v. Goodin, 172 Mo. 48; McElvain v. McElvain, 171 Mo. 257; Kinney v. Murray, 170 Mo. 700; Steele v. Steele, 161 Mo. 575; Curd v. Brown, 148 Mo. 92; Fanning v. Doan, 139 Mo. 411; Nowack v. Berger, 133 Mo. 42; Teats v. Flanders, 118 Mo. 669; Cherbonnier v. Cherbonnier, 108 Mo. 264; Emmel v. Hayes, 102 Mo. 195; Veth v. Gierth, 92 Mo. 104; Asbury v. Hicklin, 81 S.W. 390; Reed v. Morgan, 73 S.W. 381; Grantham v. Gossett, 81 S.W. 895; Drake v. Lanning, 49 N.J.Eq. 459; McTague v. Finnegan, 54 N.J.Eq. 457; Woods v. Evans, 113 Ill. 191; Neals v. Gilmore, 79 Pa. 425; Miller's Estate, 136 Pa. 249; 8 Am. and Eng. Enc. Law (2 Ed.), 1017; Nickerson v. Nickerson, 127 U.S. 676; Purcell v. Miner, 4 Wall. 517; Williams v. Morris, 95 U.S. 444; Maddison v. Alderson, L.R. 8 App. Cas. 467; 10 U.S. App. 195; 134 Cal. 170; 99 Mo.App. 116. (4) In order to sustain such a contract there must be something for a consideration, which is "incapable of computation by any pecuniary standard." In this kind of contract, for consideration, there is surrendering by a father or mother of the child and its influences; the transferring of its affections; the sundering of the closest of ties; the affectionate services and care where people are aged; the impossibility of restoring a party to his former condition; the value of all which can not be measured by dollars and cents. Healy v. Simpson, 113 Mo. 347; Gupton v. Gupton, 47 Mo. 45.

FOX, J.

OPINION

FOX, J.

This is a suit by the plaintiff seeking to have specifically performed a contract or agreement alleged to have been entered into by Dr. C. W. Adams, in his lifetime. The contract sought to be enforced is thus stated by the plaintiff in his petition:

"Plaintiff further states that about the latter part of May, 1897, the said C. W. Adams told this plaintiff he wanted to adopt him because of his affectionate feelings for this plaintiff, and previously stated that he wanted this plaintiff to fit up and furnish offices and rooms, and about the latter part of August, 1897, he stated that he wanted this plaintiff to leave his home and to stay with him and to practice medicine as a partner with him and be with him day and night, and the said C. W. Adams further stated that he wanted this plaintiff to look after all of his affairs, to look after his books collections, property, and further stated that he wanted this plaintiff to be as a son to him, to attend to all his correspondence, to attend him personally as a son, a nurse and a physician, and further stated to this plaintiff that as he was breaking down in health and as he had consumption, he wanted this plaintiff to be close to him at all times, as long as he lived, that then in consideration of all this, he the said C. W. Adams, upon his death would make this plaintiff his sole heir; that he would will to this plaintiff his entire estate owned by him at the time of his death, and that this plaintiff would come into possession of and own all of his, the said C. W. Adams's property and estate owned by the said C. W. Adams at the time of his death. And said C. W. Adams agreed with plai...