Baker v. Payne

• Decision Date: 05 November 1917
• Docket Number: No. 12636.,12636.
• Parties: BAKER v. PAYNE et al.
• Court: Missouri Court of Appeals

198 S.W. 75

BAKER v. PAYNE et al.

No. 12636.

Kansas City Court of Appeals. Missouri.

November 5, 1917.

Appeal from Circuit Court, Cass County; Ewing Cockrell, Judge.

"Not to be officially published."

Action by Fred Baker against J. N. Payne and others. Judgment for plaintiff, and defendants appeal. Affirmed.

J. S. Brierly and T. N. Haynes, both of Harrisonville, for appellants. A. A. Whitsitt and W. D. Summers, both of Harrisonville, for respondent.

ELLISON, P. J.

This action was instituted to enforce performance of an oral contract of adoption made with E. T. Payne, who died leaving a personal estate of about $6,000. The contract was performed on the part of plaintiff. The judgment in the trial court was for the plaintiff.

It appears that defendants are administrators, brothers and sisters, and nephews and nieces of E. T. Payne, and that plaintiff when a boy four years old resided with his parents in Illinois, and that his father died. His mother had a young unmarried sister, about 16 years old, residing with a family in Harrisonville, Mo. E. T. Payne and his wife resided on a farm near Harrisonville and were childless. Plaintiff's mother came to visit her sister and brought him along. The mother was poor and had other children, and she expressed a desire to place plaintiff with a good family until she might be able to care for him. Her sister knew of the Paynes and suggested them as people likely to want the boy. They went out to see them and laid the matter before them. Mr. Payne refused to take the boy with privilege retained by the mother to take him from them, perhaps after their affections had grown around him, but said he would take him unconditionally as his own to become his adopted son, the mother surrendering all her rights. The parties separated, the mother saying she would think it over during that night. She did so, and concluded to accept Payne's conditions, and took plaintiff with his clothes to Payne the next day, and there left him under this agreement for adoption, where he remained as a member of the family until he was 23 years old. He served Payne as a son, and Payne cared, schooled, and protected him as a father, during these intervening years. He took Payne's name, attended school, and was known as Fred, or Freddie, Payne.

Payne had a brother-in-law named Ament who had a marriageable daughter, and she and plaintiff became engaged to be married when plaintiff was but 21 years of age. Miss Ament learned that plaintiff's parental name was Baker, and she became possessed with the desire to marry him by what she called his "real" name. Payne and his wife were consulted, and they consented to it, and so he was married under the name of Baker and has since been called by that name, though he continued to live with the Paynes with his young wife until she shortly afterwards died.

When plaintiff had become 23 years old, then a widower, he left the Payne homestead, quitting on the most friendly terms, and went to Kansas, where he again married and began life for himself. He now has, and for some time has had, several children. He named his first son for Mr. Payne. Throughout the time that plaintiff lived with Payne, the latter called him his boy. He told people he had taken him to adopt as his son, and it would appear that the entire neighborhood, or country around, so understood it. Numbers of witnesses testified to these things, and the trial consisted largely in tracing the relationship between the father and the adopted son from the latter's simple childhood to manhood past his majority, and, as we shall presently show, even after he went to Kansas and established himself with a family of his own.

There was evidence in behalf of defendant, but it has not struck us with sufficient force to overthrow, or qualify, that for plaintiff. For instance, testimony, unquestionably truthful, was given to the effect that when plaintiff became of age he asked Mr. Payne if he had made a will, expressing the belief that if he had not, nor did not, he (plaintiff) would not get any of his property. This was perhaps a natural thought, or fear, in the mind of a farmer boy unversed in the law and unacquainted with his rights. Properly interpreted, it at least shows that plaintiff considered he had a claim on Mr. Payne's property. That plaintiff became a member of the Payne family from a child to manhood is not and cannot be denied. The only point of dispute is the agreement to adopt. And defendants rely upon the cautionary requirements of the law to discredit, or at least to weaken, the evidence in plaintiff's behalf to such degree as to destroy his case. The law requires that contracts for adoption be made by deed (section 1671, R. S. 1909), though if the contract be oral and wholly performed by the child it may be enforced. Lynn v. Hockaday, 162 Mo. 111, 61...