Ahern v. Matthews, 32572.

• Court: United States State Supreme Court of Missouri
• Citation: 85 S.W.2d 377
• Decision Date: 11 July 1935
• Docket Number: No. 32572.,32572.
• Parties: ALBERT M. AHERN v. FLOY MATTHEWS ET AL., Respondents, and ANDREW BURTON GALLOWAY WAUGH, Appellant.

85 S.W.2d 377 ALBERT M. AHERN
v.
FLOY MATTHEWS ET AL., Respondents, and ANDREW BURTON GALLOWAY WAUGH, Appellant. No. 32572. Supreme Court of Missouri. Division Two, July 11, 1935.

Appeal from Circuit Court of City of St. Louis. — Hon. Jerry Mulloy, Judge.

REVERSED AND REMANDED (with directions).

P.S. Terry and Douglas H. Jones for appellant.

(1) Adoption may be decreed in equity, notwithstanding the legal or statutory methods of adoption are not complied with. Shelp v. Mercantile Trust Co., 15 S.W. (2d) 819; Bland v. Buoy, 74 S.W. (2d) 612; Carlin v. Bacon, 16 S.W. (2d) 46; Fishbeck v. Prock, 279 S.W. 38; Sharkey v. McDermott, 91 Mo. 647; Horton v. Troll, 183 Mo. App. 677, 167 S.W. 1081; Fisher v. Davidson, 271 Mo. 195, 195 S.W. 1024; Baker v. Payne, 198 S.W. 75; Signaigo v. Signaigo, 205 S.W. 28; Craddock v. Jackson, 223 S.W. 924; Remmers v. Remmers, 239 S.W. 509; McCary v. McCary, 239 S.W. 848; Kerr v. Smiley, 239 S.W. 501; Dillmann v. Davison, 239 S.W. 505; Holloway v. Jones, 246 S.W. 587; Kay v. Neihaus, 298 Mo. 201, 249 S.W. 625. (2) Where an oral agreement to adopt exists, or it can be reasonably inferred from the acts, conduct and conditions of the parties, and the obligations of the contract duly fulfilled, a court of equity will enforce specific performance of the same. Signaigo v. Signaigo, 205 S.W. 23; Craddock v. Jackson, 223 S.W. 924; Kay v. Neihaus, 298 Mo. 201, 249 S.W. 625; Fisher v. Davidson, 271 Mo. 195, 195 S.W. 1024; Remmers v. Remmers, 239 S.W. 509; Kerr v. Smiley, 239 S.W. 501; Dillmann v. Davison, 239 S.W. 505; Drake v. Drake, 43 S.W. (2d) 556, 328 Mo. 966; Taylor v. Coberly, 38 S.W. (2d) 1055, 327 Mo. 940; Shelp v. Mercantile Trust Co., 15 S.W. (2d) 818; Carlin v. Bacon, 16 S.W. (2d) 146; Fishbeck v. Prock, 279 S.W. 38, 311 Mo. 494; Sharkey v. McDermott, 91 Mo. 647, 4 S.W. 107; Holloway v. Jones, 246 S.W. 587. (3) A court of equity has jurisdiction to decree the existence of the status of adoption, even in the absence of an agreement where the facts and circumstances point to an adoption. Rauch v. Metz, 212 S.W. 357; Holloway v. Jones, 246 S.W. 587; Fisher v. Davidson, 271 Mo. 207, 195 S.W. 1024; Shelp v. Trust Co., 15 S.W. (2d) 823; Martin v. Martin, 250 Mo. 439, 157 S.W. 575; Nowack v. Berger, 133 Mo. 24, 34 S.W. 489. (4) The word "adopted" need not be used in the adopting contract, but the oral contract of adoption may be sustained by estoppel. Taylor v. Coberly, 38 S.W. (2d) 1055, 327 Mo. 940. And it is not necessary that the child take the name of the adopting parent. Craddock v. Jackson, 223 S.W. 924. (5) Statutes of Limitation do not run against the claim of an adopted child until after the death of both adopting parents and until after the close of administration of the estate of the last surviving parent. Carlin v. Bacon, 16 S.W. (2d) 46; Moore v. Hoffman, 39 S.W. 339, 327 Mo. 852; Sharkey v. McDermott, 91 Mo. 647, 4 S.W. 107. (6) Appellate court is not bound by chancellor's findings in an equity case, but hears case de novo, and passes on weight of evidence. Klober v. Boothe, 49 S.W. (2d) 181; Carter v. Burns, 61 S.W. (2d) 944; Fessler v. Fessler, 60 S.W. (2d) 17; City Ice & Fuel Co. v. Snell, 57 S.W. (2d) 44; Home Trust Co. v. Shapiro, 64 S.W. (2d) 717; Place v. Union, 66 S.W. (2d) 584; Reynolds v. South Side Natl. Co., 64 S.W. (2d) 297; Fender v. Roy, 58 S.W. (2d) 459; Bruegge v. Bank of Wellston, 74 S.W. (2d) 835. And will reverse findings of chancellor if unsupported by substantial evidence or contrary to all the evidence. Williams v. Walker, 62 S.W. (2d) 840; McCoy v. Pollard, 50 S.W. (2d) 1037; Marquise Kidd v. St. Louis Union Trust Co., 74 S.W. (2d) 827.

Barker, Durham & Drury, Albert T. Ennis and Edw. T. Eversole for respondents.

(1) The sole point urged for reversal is the weight and credibility of the evidence. This requires a consideration of all the evidence. The abstracts neither alone nor together present all the evidence and there is nothing before the court except the record proper. "In equity cases appeal will not be considered wherein it appears the bill of exceptions is not fully abstracted." Aulger v. Strodtman, 46 S.W. (2d) 172. "Since the appellant has not brought up for examination the evidence that was adduced at the trial, he is not entitled to have the judgment reversed. In the absence of the evidence the presumption is in favor of the correctness of the judgment." Patterson v. Patterson, 200 Mo. 335. "Equity suits are to be heard de novo on appeal. The eye of the chancellor must search the very marrow of the thing." Pitts v. Pitts, 201 Mo. 356. "In equity cases all the evidence is required." Huggins v. Hill, 236 S.W. 1051. "If we are to pass upon any matter which depends upon the findings and the testimony, clearly we ought to have the whole of it before us." State ex rel. v. Jarrott, 183 Mo. 218. "To determine a question of fact ... it is necessary to determine what credit is to be given the witnesses, and this requires a careful study of all the evidence of each witness. Under these circumstances the appellants should have set out in their printed abstract the entire evidence, questions and answers of each witness." Bradley v. Bradley, 119 Mo. 62. "If the abstract of record in an equity case shows upon its face that not all the evidence has been preserved, the appellate court will not review the evidence." Bondurant v. Raven Coal Co., 25 S.W. (2d) 566. The abstract being insufficient for a determination of the only point assigned on appeal, that is, the weight of the evidence, nothing remains but the record proper. The record proper contains the pleadings and the appearances. A certified copy of the judgment and order allowing the appeal is on file in this court and so much of the record is reviewable. No point is urged as to the record proper and the judgment should be affirmed. Coleman v. Roberts, 214 Mo. 634. (2) "The duty is upon the appellant to furnish a proper abstract and he cannot, by filing an insufficient or garbled abstract, shift the burden to respondent." Brand v. Cannon, 118 Mo. 598; Short v. Kidd, 197 S.W. 67; Vandeventer v. Goss, 190 Mo. 242; Bouton v. Pippin, 192 Mo. 472. (3) No proper statement of the case has been made by appellant and this alone authorizes the court to disregard the points assigned. Pfotenhauer v. Ridgeway, 271 S.W. 50; Bondurant v. Raven Coal Co., 25 S.W. (2d) 566; Supreme Court Rules, 15, 16; Seifert v. Seifert, 52 S.W. (2d) 817; State ex rel. Highway Comm. v. Shain, 62 S.W. (2d) 711. (4) Even in cases where all the evidence is properly presented, where the determination of a question of fact depends upon the credibility of witnesses, the appellate court will usually defer to the finding of the chancellor. "Since the chancellor has had the witnesses before him whose credibility is involved, this court will usually defer to his findings unless satisfied they are against the weight of the evidence." Carter v. Burns, 61 S.W. (2d) 944; Fendler v. Roy, 58 S.W. (2d) 465. (5) The appellant seeking the aid of a court to enforce an oral contract of adoption was compelled to prove his case, not by mere preponderance of the evidence, but by the clearest and most convincing evidence. "By evidence overwhelming in its probative force leaving no room for reasonable doubt." 1 C.J., pp. 1377-1380. "Beyond a reasonable doubt." Beach v. Bryan, 133 S.W. 635. Character of evidence necessary to establish parol agreement to adopt. There must be evidence of a distinct contract, and neighborhood gossip and reputation are not considered evidence. Grantham v. Gossett, 182 Mo. 651; Arfstrum v. Baker, 214 S.W. 859; Pursifull v. Pursifull, 257 S.W. 117; Wales v. Holden, 209 Mo. 552; Beach v. Bryan, 133 S.W. 635; Hockaday v. Lynn, 200 Mo. 464. It cannot be established by evidence of conversations with and declarations made by husband and wife thirty or forty years before the testimony was given. Kinney v. Murray, 170 Mo. 674. Evidence necessary to establish agreement to adopt must be consistent with such agreement and inconsistent with any other theory. Wales v. Holden, 209 Mo. 552; Arfstrum v. Baker, 214 S.W. 859. Under such circumstances the chancellor's mind must be satisfied by clear and positive proof. Nickey v. Downing, 224 Mo. 115. Agreements to adopt, to be enforceable in equity, must be based on a substantial consideration. 1 C.J. 1376; Lynn v. Hockaday, 162 Mo. 111; Healey v. Simpson, 113 Mo. 340. (6) The evidence as to appellant's services, living in the home, etc., is explained consistently by the contract of indenture executed with the Home. The contract entered into with the Home, plaintiff's Exhibit 4, is clearly a contract of indenture as authorized by Article II, Chapter 6, sections 369-396, Revised Statutes 1889, in force at the time. A contract of apprenticeship, in the absence of a stipulation to adopt or make an heir, is not in itself evidence of an intention of agreement to adopt, but is evidence to the contrary. Dillman v. Davison, 239 S.W. 505. The Laws of Adoption in 1898. Adoption was only by deed executed and recorded in the county of the residence of the adopting parents. Art. II, Chap. 29, R.S. 1889, secs. 968-971. That statute (adoption) is to be strictly construed against the adopted child. Hockaday v. Lynn, 200 Mo. 456, and cases cited. A statute of adoption implies there is no method of adoption but by strict compliance with the statute. Thompson v. Arnold, 230 S.W. 322; Fienup v. Stamer, 28 S.W. (2d) 437. And if not recorded in the county of the residence of the adopting parents it is invalid. Kerr v. Smiley, 239 S.W. 501; Gipson v. Owens, 226 S.W. 856.

COOLEY, C.

This action was brought May 1, 1931, in the Circuit Court of Washington County for the partition of lands located in that county. The petition names nine defendants and alleges that there are unknown persons who derive their claims, if any, from Mary Josephine Waugh (and several others) as heirs, devisees, grantees, etc.

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