Benjamin v. Cronan, 33669.

• Decision Date: 23 April 1936
• Docket Number: No. 33669.,33669.
• Parties: ARTHUR H. BENJAMIN v. ETTA MAY CRONAN, Appellant.
• Court: Missouri Supreme Court

93 S.W.2d 975 ARTHUR H. BENJAMIN
v.
ETTA MAY CRONAN, Appellant. No. 33669. Supreme Court of Missouri. Division One, April 23, 1936.

Appeal from Pettis Circuit Court. — Hon. Dimmitt Hoffman, Judge.

REVERSED.

Palmer & Palmer for appellant.

(1) The court committed error in finding for the respondent upon the doctrine of adoption by estoppel, because said findings are not based upon the pleadings and the issues raised therein, nor supported by the evidence. (2) The court committed error in finding and decreeing that respondent is entitled to a one-half interest in the property of Flora Belle Benjamin and in ordering a sale thereof. There was no evidence to show a contract by Flora Belle Benjamin to adopt this respondent, nor were there any acts or conduct on her part sufficient for a court to say she had entered into an agreement to adopt him and make him her heir at law. "They are claiming under Mr. Benjamin and it would be an admission against interest, Your Honor," which conclusively shows his theory of an express contract of adoption by Mr. Benjamin, thus necessarily excluding any possible theory that respondent obtained and now has any right through Flora Belle Benjamin. Pratt v. Conway, 148 Mo. 291; Gabbert v. Evans, 184 Mo. App. 283; Ill. Glass Co. v. Ingraham, 215 Mo. App. 12; Nichols v. Jones, 32 Mo. App. 657; Moling v. Barnard, 65 Mo. App. 600. (3) The burden is upon the plaintiff to establish the contract or agreement alleged in his amended petition, not by a mere preponderance of the evidence, but by testimony so clear, cogent and unequivocal in all its terms as to leave no room for reasonable doubt. 1 C.J., pp. 1379, 1380, secs. 28, 30; Sitton v. Shipp, 65 Mo. 297; Berry v. Hartzell, 91 Mo. 132; Mo. Pac. Ry. Co. v. McCarty, 97 Mo. 214; Brownlee v. Fenwick, 103 Mo. 420; Rogers v. Wolfe, 104 Mo. 1; Taylor v. Von Schraeder, 107 Mo. 206; Teats v. Flanders, 118 Mo. 660; Wales v. Holden, 209 Mo. 552; McKee v. Higbee, 180 Mo. 263; McElvain v. McElvain, 171 Mo. 244; Grantham v. Gossett, 182 Mo. 651; Goodin v. Goodin, 172 Mo. 40; Ringo v. Richardson, 53 Mo. 385; Kinney v. Murray, 170 Mo. 674; Gibbs v. Whitwell, 164 Mo. 387; Kidd v. St. Louis Trust Co., 74 S.W. (2d) 827; Asbury v. Hicklin, 181 Mo. 658; Arfstrum v. Baker, 214 S.W. 859; Buck v. Meyer, 190 S.W. 997; Lamb v. Feehan, 276 S.W. 71; Beach v. Bryan, 133 S.W. 635. It is not sufficient to show merely that a child was taken into the home of the alleged adopting parents, and was known by their name and referred to as an adopted child. Miller v. Miller, 123 Iowa, 165; In the Matter of Thorne, 155 N.Y. 140; In the Matter of Romero, 17 Pac. 434, 75 Cal. 379; In re Huyck's Estate, 99 N.Y. Supp. 502; Conrad v. Herring, 83 S.W. 427, 36 Tex. Civ. App. 616; "Nor by referring to him in a Will or Codicil or Deed as an adopted child." Smith v. Allen, 161 N.Y. 478, 53 N.Y. Supp. 114; Conrad v. Herring, 83 S.W. 427, 36 Tex. Civ. App. 616; Phillips Estate, 17 Pa. Supr. Ct. 103; Hughes's Estate, 225 Pa. 79; Powell v. Ott, 146 S.W. 1019; Lamb v. Feehan, 276 S.W. 71. No contract or agreement between the Benjamins and the respondent, or anyone else, to adopt him as their child was shown, and the acts and conduct of the alleged adoptive parents were not sufficient to warrant a decree of adoption. Davis v. Hendricks, 99 Mo. 478; Steele v. Steele, 161 Mo. 566; Gipson v. Owens, 286 Mo. 33. Evidence of the declarations of persons since deceased, while admissible, never amounts to direct proof of the facts claimed to have been stated, and when not supported by other evidence is generally entitled to very little weight. Johnson v. Quarles, 46 Mo. 423; Davis v. Green, 102 Mo. 170; Fanning v. Doan, 139 Mo. 392; Walker v. Bohannan, 243 Mo. 119; Russell et ux. v. Sharp, 192 Mo. 270.

Carlin P. Smith, John V. Hill and Gordon R. Boyer for respondent.

(1) The decree of the court was proper in finding for the respondent because such finding was based upon proper pleadings and was supported by a preponderance of the evidence. Carlin v. Bacon, 16 S.W. (2d) 46; Kay v. Niehaus, 249 S.W. 625; Taylor v. Coberly, 38 S.W. (2d) 1055. (2) The will and codicil, postcards, photographs, petition to admit will to probate, the page in respondent's album and other evidence designed to establish adoption by estoppel were relevant and competent evidence and were properly admitted by the trial court. Taylor v. Coberly, 38 S.W. (2d) 1055; Kay v. Niehaus, 249 S.W. 625; Bland v. Buoy, 74 S.W. (2d) 612. (3) No error was committed by the court in finding and decreeing that respondent is entitled to a one-half interest in the property of Flora Bell Benjamin and in ordering a sale thereof. Carlin v. Bacon, 16 S.W. (2d) 46; Kay v. Niehaus, 249 S.W. 625; Eldred v. Glen, 52 S.W. (2d) 35. (4) No error was committed by the court in finding and decreeing for the respondent because said findings and decree were warranted under the evidence and were supported by a preponderance of the evidence. Carlin v. Bacon, 16 S.W. (2d) 46; Kay v. Niehaus, 249 S.W. 625; Eldred v. Glen, 52 S.W. (2d) 35; Sharkey v. McDermott, 91 Mo. 647; Lynn v. Hockaday, 162 Mo. 111; Fisher v. Davidson, 271 Mo. 195; Taylor v. Coberly, 38 S.W. (2d) 1055; Bland v. Buoy, 74 S.W. (2d) 612. (5) The appellate court will not disturb a judgment supported by substantial evidence and will defer to such finding supported by such evidence even in an equitable action. Beyer v. Conroy's, Inc., 32 S.W. (2d) 763; Vining v. Ramate, 3 S.W. (2d) 712; Daggs v. McDermott, 34 S.W. (2d) 46; Bland v. Buoy, 74 S.W. (2d) 612.

BRADLEY, C.

Plaintiff's cause is in equity and is, in effect, to determine title to and to partition certain real property in the city of Sedalia, Missouri. Plaintiff alleges that when a child of tender years he was given into the custody of John L. and Flora Belle Benjamin, husband and wife; that the Benjamins agreed to adopt him; that in pursuance of said agreement the Benjamins gave him their name and "in all their acts and conduct treated him as their son" and that at all times he treated the Benjamins as was becoming to a son; that the Benjamins were the owners by the entirety of the real property described; that upon their death plaintiff and defendant became seized of said real property as tenants in common, and each entitled to a one-half undivided interest. Plaintiff further alleges that defendant claims that "she is the sole heir" of the Benjamins, when she knew "that the plaintiff is and was an adopted son" of the Benjamins, and it is alleged by plaintiff that the real property in question cannot be partitioned in kind. The prayer of the petition, except as to the partition, is that plaintiff be declared, by the decree of the court, "the legally adopted son and heir" of the Benjamins, and that it be adjudged that plaintiff and defendant are "seized as tenants in common" of said real property.

Defendant answered, except as to some admissions, by general and specific denials

93 S.W.2d 976

and also some affirmative averments. (The Benjamins were childless and it is conceded that defendant was their legally adopted daughter.) Defendant admits that plaintiff was given into the custody of the Benjamins, but denies that they "agreed to adopt plaintiff," and alleges that they "refused to adopt plaintiff as their child;" denies that the Benjamins gave plaintiff their name; admits that the Benjamins, prior to the death of either, owned the real property in question as tenants by the entirety, but denies that plaintiff has any interest in said property. The reply was a general denial. The judgment of the court was, in effect, as prayed in the petition. Unsuccessful on motion for new trial, defendant appealed.

From the decree it appears that the court found "that there was a legal contract of adoption entered into between" the Benjamins and plaintiff and that said contract "was fully, completely and adequately performed" by plaintiff; that plaintiff was and is the legally adopted child and heir at law" of the Benjamins; that upon the death of the Benjamins plaintiff and defendant became "seized as tenants in common" of the real property in question; that the real property concerned was not susceptible to partition in kind. The judgment and decree followed the finding as to plaintiff's interest and the real property was ordered sold and the proceeds, less costs, ordered divided between plaintiff and...