Bedal v. Johnson

• Decision Date: 05 July 1923
• Citation: 37 Idaho 359,218 P. 641
• Parties: KATE CECELIA BEDAL, Respondent, v. NELLIE PAYNE JOHNSON et al., Appellants
• Court: Idaho Supreme Court

218 P. 641

37 Idaho 359

KATE CECELIA BEDAL, Respondent, v. NELLIE PAYNE JOHNSON et al., Appellants

Supreme Court of Idaho

July 5, 1923

SPECIFIC PERFORMANCE-ORAL CONTRACT-PUBLIC POLICY-STATUTE OF FRAUDS-ADOPTION AGREEMENTS-SOLE HEIR-COMMON LAW-MARRIED WOMEN-SEPARATE PROPERTY-LACHES-CONTRACTS-MENTAL CAPACITY-UNDUE INFLUENCE-RIGHT TO DISINHERIT CHILD UNDER ADOPTION AGREEMENT-RECEIVERS-REFEREE-APPEAL-STAY OF PROCEEDINGS.

1. An oral contract for the adoption of a child whereby the adopting persons agree to make such child their heir and leave her all their property must be definite and certain and proven by clear and convincing evidence before it may be specifically enforced.

2. In an action to specifically enforce an oral contract of adoption whereby adopting persons agree to adopt a child and leave her all their property, the rule that the terms and existence of the contract must be proven by clear and convincing evidence is one primarily for the trial court, and if the trial court finds on substantial or conflicting evidence that such rule has been complied with, its finding will not be disturbed on appeal.

3. An oral contract to leave property to another on the death of the promisor does not come within the inhibition of the statute of frauds, when there has been complete performance thereof by the promisees.

4. Evidence held to show that the grantor in deeds and assignments to his wife had sufficient mental capacity to contract.

5. Where a grantor died in February, 1916, and it is sought to set aside deeds made by him in May, 1914, on the ground that he did not then have the mental capacity to make such conveyances, a finding that "for one or two years prior to his death" he was mentally incapacitated does not support an allegation of mental incapacity in May, 1914.

6. Evidence held to show that no undue influence was exerted by a wife in securing conveyances and gifts from her husband.

7. Contracts for the adoption of children were not recognized at common law.

8. A contract by which a husband and wife agreed to adopt a child and leave her all their property on their death, made in 1868 when the common law was in force in Idaho and there was no statute authorizing the adoption of children, was invalid and unenforceable.

9. Under the common law a married woman could not make a valid contract adopting a child.

10. A married woman by agreeing to adopt a child and leave her property to the child on her death did not bind her separate estate.

11. Contracts for the adoption of children are no longer opposed to the public policy of this state.

12. Where a husband and wife agreed to adopt a child and leave her all their property on their death, and on the death of his wife the husband again marries, such contract will not be enforced against the later wife who married without knowledge thereof, both because it is contrary to public policy and morals and because its performance is harsh and unjust to an innocent third party.

13. Where a contract for the adoption of a child was made when the common law was in force and when there was no statute of this state authorizing adoptions, and pursuant to the contract the adopting parents procured the enactment of an act by the territorial legislature, adopting the child and making her their lawful heir, the contract will be deemed consummated and binding since by the passage of the act the common-law inhibitions were removed.

14. Evidence held sufficient to show the acceptance of a special legislative act by the parties affected thereby.

15. Pursuant to a contract with the natural parent to adopt his child and leave her their property, the adopting parents procured the enactment by the territorial legislature of Idaho of a law which provided that the child "is hereby made the lawful and legitimate heir of said Orville P. and Rosanna C. Johnson, the same as if she were their natural child, and shall be treated as and have the same rights as an heir as if she were their natural child." The relations of parent and child were thereafter assumed and recognized for twenty-five years by the adopting parents and the child. Held, that the legislative act will be construed as a part of the contract, entitling the child to a child's portion of the estate of O. P. Johnson as against his attempt to disinherit her by conveyances of practically all his property to his subsequent wife.

16. Where a husband and wife procure the enactment of a legislative act by which they adopt a child and "make her their heir the same as if she were their natural child," and thereafter the relation of parent and child is assumed and recognized for twenty-five years by the adopting parents and the child, the child will be entitled to a child's share of the estate of her adopting mother on the death of the latter intestate.

17. Where one who has adopted a child and agreed to leave her his property on his death conveys in May, 1914, practically all his property to the wife of a later marriage in consideration of love and affection and thereafter dies in February, 1916 a suit begun in October, 1917, to set aside such conveyances and to enforce the adoption agreement is not barred by laches.

18. C S., sec. 7162, provides that in cases not provided for in sec. 7157 et seq. the perfecting of an appeal stays proceedings in the court below, upon the judgment or order appealed from. C. S., sec. 7157, provides that if the judgment or order appealed from direct the execution of a conveyance or other instrument an appeal cannot be stayed until such execution. Held, that after judgment directing the execution of certain conveyances by defendant, an appeal by the defendant who had failed to execute and deliver such conveyances did not prevent the appointment of a receiver after judgment as authorized by C S., sec. 6817, subds. 3 and 4.

19. Held, under the same facts and for the same reason, the trial court was not prevented from appointing a referee under C S., sec. 6871.

APPEAL from the District Court of the Fourth Judicial District, for Gooding County. Hon. H. F. Ensign, Judge.

Action for specific performance of a contract of adoption. Decree for plaintiff. Defendant appeals. Reversed and remanded.

Judgment of the lower court is modified. No costs allowed. Petition for rehearing denied.

Richards & Haga and Hawley & Hawley, for Appellants.

The oral agreement between O. P. Johnson and Rosanna Johnson, his wife, and respondent's father, William Alexander, on the part of the Johnsons to leave all their property to the respondent at their death could not be enforced against appellant because its enforcement would be against public policy, morals and the specific equitable principles applicable to this type of case. (Elliott on Contracts, secs. 645, 649, 652, 653; C. S., secs. 7826, 7827; 13 C. J. 462; Lowe v. Doremus, 84 N.J.L. 658, 87 A. 459, 49 L. R. A., N. S., 632; Bradley v. Bradley, 19 Ont. Law, 525; Lower v. Peers, 6 Eng. Rul. Cas. 347; Sullivan v. Garesche, 229 Mo. 496, 129 S.W. 949, 49 L. R. A., N. S., 605; Knost v. Knost, 229 Mo. 170, 129 S.W. 665, 49 L. R. A., N. S., 627.)

The agreement is unenforceable because performance would be harsh, offensive and unjust to an innocent third party. (Johnson v. Hubbell, 10 N.J. Eq. 332, 66 Am. Dec. 773; Owens v. McNally, 113 Cal. 444, 45 P. 710, 33 L. R. A. 369; Sargent v. Corey, 34 Cal.App. 193, 166 P. 1021; Gall v. Gall, 64 Hun, 600, 19 N.Y.S. 332; Id., 138 N.Y. 675, 34 N.E. 515; Mayfield v. Cook, 201 Ala. 187, 77 So. 713; Russell v. Agar, 121 Cal. 396, 66 Am. St. 35, 53 P. 926; Wood v. Evans, 113 Ill. 186, 55 Am. Rep. 409; Pugh v. Bell, 21 Cal.App. 530, 132 P. 286; Hooks v. Bridgewater, 111 Tex. 122, 229 S.W. 1114, 15 A. L. R. 216.)

The oral agreement claimed here must be proven with a degree of certainty which is utterly lacking in the evidence presented. There is, therefore, insufficient evidence to support the judgment. (Moore on Facts, vol. 1, p. 152; vol. 2, p. 1291; vol. 3, p. 1304; Rice v. Ridgley, 7 Idaho 115, 61 P. 290; Rosenwald v. Middlebrook, 188 Mo. 58, 86 S.W. 200; Gall v. Gall, supra; Wallace v. Rappleye, 103 Ill. 229; Forsyth v. Heward, 41 Nev. 305, 170 P. 21; Monsen v. Monsen, 174 Cal. 97, 162 P. 90.)

Such contracts have in many states been held void under statutes of frauds similar to the statute in force in the territory of Idaho in 1868. (Austin v. Davis, 128 Ind. 472, 25 Am. St. 456, 26 N.E. 890, 12 L. R. A. 120; Wallace v. Long, 105 Ind. 522, 55 Am. St. 222, 5 N.E. 666; Swash v. Sharpstein, 14 Wash. 426, 44 P. 862, 32 L. R. A. 796; Wood v. Evans, 113 Ill. 186, 55 Am. Rep. 409; Shahan v. Swan, 48 Ohio St. 25, 29 Am. St. 517, 26 N.E. 222; Grant v. Grant, 63 Conn. 530, 38 Am. St. 379, 29 A. 15; Dicken v. McKinley, 163 Ill. 318, 54 Am. St. 471, 45 N.E. 134; Pond v. Sheean, 132 Ill. 312, 23 N.E. 1018, 8 L. R. A. 414; Blakely v. Sumner, 62 Wash. 206, 113 P. 257; Trimble v. Donahey, 96 Wash. 677, 165 P. 1051; Grindling v. Rehyl, 149 Mich. 641, 113 N.W. 290, 15 L. R. A., N. S., 466.)

Where oral contracts of the kind relied upon by respondent have not been declared void under the statutes of fraud, the courts have uniformly viewed them with suspicion, for the lips of the deceased are closed by death, or the time that has elapsed is so great that no human being could testify with certainty as to what was said, and the testimony becomes merely the opinion of the witness, based upon a vague recollection, instead of a statement of fact from which the court may determine the legal effect of the words or language used by the parties. (In re Healy's Estate, 6 Cal. Unrep. 780, 66 P. 175; Russell v. Agar, supra; Owens v. McNally, supra; In re Hayden's Estate, 1 Cal.App. 75, 81 P. 668; Shahan v. Swan, supra.)

Contracts for the adoption of...