Arfstrum v. Baker

• Decision Date: 09 July 1919
• Docket Number: No. 19249.,19249.
• Citation: 214 S.W. 859
• Parties: ARFSTRUM et al. v. BAKER et al.
• Court: Missouri Supreme Court

214 S.W. 859

ARFSTRUM et al. v. BAKER et al.

No. 19249.

Supreme Court of Missouri, Division No. 1.

July 9, 1919.

Rehearing Denied October 10, 1919.

Appeal from Circuit Court, Franklin County; R. A. Breuer, Judge.

Suit by Kate Sullivan Baker Arfstrum and Fred Arfstrum, her husband, against Martha S. Baker and others. From a judgment for defendants, plaintiffs appeal. Affirmed.

Eugene Hale, of St. Louis, and Charles G. Revelle, of Jefferson City, for appellants.

James Booth, of Pacific, for respondents.

BLAIR, P. J.

This is a suit to enforce against the devisees of Samuel T. Baker the specific performance of an alleged agreement of his to adopt Kate and Effie Sullivan. A count in partition was included in the petition. Relief was denied, and this appeal followed. The parties plaintiff in the circuit court were the present appellants and their niece and nephew. About 1886, Mrs. Sullivan placed her two children, Kate and Effie, rerespectively aged about 3½ and 6 years, in a children's home in St. Louis. Two or three years later, Samuel T. Baker of Franklin county took these children into his home, where they remained until about a year after his death, which occurred in the summer of 1894. In 1895, they left the Baker home and did not return thereto. This suit was brought in 1911.

The question whether the record shows an enforceable agreement to adopt the children requires an examination of the evidence. There was no record evidence of adoption, nor was there any written evidence of an agreement to adopt. Neither did any witness attempt to testify to any knowledge of an agreement to, adopt, oral or written. It is established that the mother, herself, the surviving parent, knew nothing of any adoption, and no effort was made to show by either writing or parol that the society to whose care the children had been committed exacted from Baker any agreement of any kind when it gave the children into his control. There was no evidence offered concerning what occurred between Baker and this society, nor was there any explanation given for the failure to tender such evidence. Several witnesses testified the children, after coming into the Baker home, were known as Kate and Effie Baker. Other witnesses testified they were known by both names, Baker and Sullivan. There was testimony Baker had said he had adopted the children, and testimony that he had declared he had not adopted them. He referred to them frequently as "my little girls" and had introduced them in that way. The evidence shows the children called Mr. and Mrs. Baker "pa" and "ma." They were well clothed and cared for, and the Bakers treated them kindly and "like parents would." They were sent to school and accompanied the Bakers to Sunday school and to neighboring towns on shopping trips. Certain school registers and lists of 1890, 1891, 1892, 1893, and 1894 were offered. They are not in the record here. What appears seems to show the children were sometimes enrolled under the name of Sullivan and sometimes under that of Baker. The evidence shows there was no claim of adoption or agreement to adopt on the part of the girls themselves until after the death of both Mr. and Mrs. Baker and until a short time before this suit was commenced. It was shown that during his life Baker took a number of children into his home and cared for them in the same way he took care of the Sullivan children; that, several of these other children were known under the name of Baker; that none of these was ever adopted or claimed to be or claimed any agreement for adoption.

In addition to these things, it was shown that Effie, the elder of the two Sullivan children, in 1897, was the prosecuting witness in the case of State of Missouri v. Crocket, and in that proceeding she was known as Effie Sullivan. She was then 17 years old. This was after Baker's death. The mother of the girls testified. Her testimony shows she knew Baker did not adopt the children when he first took them into his custody. She testified she had a conversation with Baker in 1893 in which he told her he had not adopted them; that "they were not adopted by him but were to have been and should have been but had been neglected; that this made no difference, as he had already made his will and the two children are named in the will, and that he had no heirs of his own and they were his only heirs." She said she did not then agree to the adoption of the children by Baker, as she "felt like her claim...