Buck v. Meyer

• Decision Date: 18 December 1916
• Docket Number: No. 12187.,12187.
• Citation: 195 Mo. App. 287,190 S.W. 997
• Parties: BUCK v. MEYER et al.
• Court: Missouri Court of Appeals

190 S.W. 997

195 Mo. App. 287

BUCK v. MEYER et al.

No. 12187.

Kansas City Court of Appeals. Missouri.

December 18, 1916.

Appeal from Circuit Court, Moniteau County; J. G. Slate, Judge.

Suit by Anna C. Buck against Martin T. Meyer, administrator of the estate of John H. Asahl, and another. Judgment for plaintiff, and defendants appeal. Remanded, with direction to modify.

See, also, 184 S. W. 977.

R. M. Embry and S. C. Gill, both of California, Mo., for appellants. Charles R. Pence, of Kansas City, Roy L. Kay, of California, Mo., and Jay L. Oldham, of Kansas City, for respondent.

TRIMBLE, J.

The petition in this case alleged that plaintiff is a daughter and only child of John H. Asahl, deceased, and was, during his life, always recognized and acknowledged as such; that in 1886 she was living with her family in Mecklenburg Schwerien, Germany, on which date her father visited her and orally promised and agreed that if she would move with her family from Germany to the United States he "would adopt plaintiff as his child and make her his legal heir"; that plaintiff accepted said promise and agreement and did, in compliance therewith and in reliance thereon, remove her family to the United States, and ever since has resided therein; that in order to make said removal she had to dispose of her property in Germany at a sacrifice. The petition then alleged that said John H. Asahl neglected to adopt plaintiff; that he died in Moniteau county, Mo., without having made such adoption; that he left surviving him his widow, Margaret Asahl, who has since died; that he had no children other than the plaintiff; that at his death he was seised of real estate worth $2,000 and of personal property worth $8,000; and that plaintiff, under said contract and agreement, is entitled to receive and recover one-half of said property. The petition then concludes as follows:

"Wherefore plaintiff prays that she may have judgment for the sum of $5,000 and that she may have all other proper relief."

The suit was brought against the administrator of John H. Asahl's estate, but afterwards the executor of the will of Margaret Asahl, deceased, on his own motion, was made a party upon a showing by him that John H. Asahl left a will in which he devised and bequeathed all his property to said Margaret Asahl, his second wife.

After the issues were made up, a hearing was had, and the court rendered a decree in which it is stated that the court doth find:

"That the plaintiff is an illegitimate and only child of John H. Asahl, deceased; that plaintiff was born in Germany; that said John H. Asahl, deceased, left Germany long prior to the year 1886, and came to the United States of America; that in the year 1886 the plaintiff, Anna C. Buck, was married and living with her family in Germany; that in the year 1886 John H. Asahl, deceased, left his home in California, Mo., and went to Germany to locate the plaintiff; that he found her and visited her and her family in her home in Germany; that during the time of his said visit to plaintiff's home in Germany he, the said John H. Asahl, in order to induce plaintiff to move with her family to the United States of America, proposed, promised, and agreed to adopt plaintiff and make her his legal heir; that plaintiff, relying upon said promise and agreement, did with her family move to the United States of America in the year 1887, and has ever since lived therein; that the said John H. Asahl, deceased, during his lifetime failed and neglected to carry out said promise and agreement with plaintiff."

And the judgment concludes thus:

"Wherefore it is considered, adjudged, and decreed by the court that plaintiff be and she is hereby declared a pretermitted heir of John H. Asahl, deceased, and entitled to a share as an heir in the estate of John H. Asahl, deceased."

Thereupon the executor of the widow's estate appealed to the Supreme Court. That tribunal, however, in an opinion handed down on the 30th of March, 1916, held that jurisdiction of the appeal was with us and transferred the case to this court.

The contract declared on in the petition is an oral contract on the part of John H. Asahl to adopt plaintiff and make her his heir. Such contracts, when established according to the standard of proof required, and shown to have been performed on one side, can be enforced in equity. Sharkey v. McDermot, 91 Mo. 647, 4 S. W. 107, 60 Am. Rep. 270; Nowack v. Berger, 133 Mo. 24, 37, 34 S. W. 489, 31 L. R. A. 810, 54 Am. St. Rep. 663; Healey v. Simpson, 113 Mo. 340, 346, 20 S. W. 881; Lynn v. Hockaday, 162 Mo. 111, 125, 61 S. W. 885, 85 Am. St. Rep. 480; Martin v. Martin, 250 Mo. 539, 157 S. W. 575; Thomas v. Maloney, 142 Mo. App. 193, 197, 126 S. W. 522; Horton v. Troll, 183 Mo. App. 677, 691, 167 S. W. 1081.

In cases of this kind where it is sought to establish an oral contract which, but for the fact of part performance, would be void under the statute of frauds, the authorities all hold that:

"To sustain the alleged oral contract, the proof must be so clear, cogent, and convincing as to leave no reasonable doubt in the mind of the chancellor, not only that a contract of the general nature alleged was made, but that the particular contract as alleged was made, and its terms and conditions clearly shown." Grantham v. Gossett, 182 Mo. 651, 81 S. W. 895; Wales v. Holden, 209 Mo. 552, 558, 576, 108 S. W. 89; McElvain v. McElvain, 171 Mo. 244, 251, 71 S. W. 142.

Courts must be very careful not to lower the standard of proof in such cases, for, if that standard be lowered or weakened, the danger of unfounded and trumped-up claims being established against a person after his death is very great.

The most important question, then, and the one to be first decided, is whether the evidence is sufficient to entitle plaintiff to relief of any nature; for, if that be decided adversely to her, all other questions become academic.

There is no question but that John H. Asahl was a native of Germany and emigrated to this country many years prior to 1886. He lived in Moniteau county, Mo., was married, and at that time his first wife was alive. They had no children. In that year he made a trip to Germany.

Mrs. Willers, witness for plaintiff, testified that she was plaintiff's stepdaughter, and was born in Mecklenburg, Germany, in 1869; that she was living at home with her father and her stepmother, the plaintiff, in 1886 when John H. Asahl came there from the United States and made them a visit; that he said he came to hunt up his daughter, and that he found her, the plaintiff; that he wanted her to come to the United States and he would adopt her as his heir; that he came to hunt up his child. The witness stated that she herself was then 16 years old; that she heard the conversations between John H. Asahl and her stepmother; that one afternoon Mr. Asahl told her father to get the neighborhood school teacher, who was a notary, to come and make out the papers; that when the school teacher came they were all present, Mr. Asahl, the witness, her stepmother, and her father; that Mr. Asahl told the teacher that if plaintiff would come over to the United States he would adopt her and make her his heir. The witness says the teacher advised them to let it go until they came to the United States and then make out the papers to adopt her and make her his heir, that this conversation occurred in the living room, and that after that she heard it often talked about between them from that time on until Mr. Asahl left. The witness testified that the next year the family came to this country, and that the plaintiff came on the promise made to her by Mr. Asahl; that she (the witness) went to live at Mr. Asahl's home and stayed there about three years; that while living at his house she heard Mr. and Mrs. Asahl talk about his making the plaintiff his heir, and heard them talk about it a number of times. The witness also stated that she was not present when Mr. Asahl first met her stepmother, but that he spoke of Mrs. Buck as his child, called her his daughter, said he was her father, called her his heir, and called the children grandchildren.

August Seyffert, a friend of Asahl's testified that he had known him intimately for 30 or 40 years, saw him nearly every day; that in 1886 Asahl went to Germany, and while there the witness received from him a letter in which he said he had found his daughter and was staying with her; that, upon Asahl's return, the witness had heard him say he had found his daughter, but he never heard her name; that he (the witness) never met the plaintiff in the presence of Mr. Asahl and did not know of the latter having held her out and introducing her as his daughter in the town of California where Asahl lived; but in answer to a question by the court as to whether he had ever heard him speak of Anna Buck as his child, or ever heard him say that he brought his child home with him, or that she came over here, he replied: "I think I did, and that she moved to Kansas City."

A stepson of plaintiff, Ernest A. Buck, testified that he was born in Germany in February, 1875; that in May, 1886, John H. Asahl came to his father's home in Mecklenburg, Germany; that, in a conversation between Mr. Asahl and the plaintiff, Mr. Asahl said he was married over in this country (the United States) but that the marriage was childless and that he had come over to adopt her as his daughter and to make her his heir; that the conversation was along the line of adoption papers; that in the afternoon Mr. Asahl sent the witness' father for the school teacher of the place that acted as notary; that the school teacher came, and the two, Asahl and the teacher, talked it over; that the old gentleman, Mr. Asahl, said he had property over here and was childless, and that she was to come to this country and he would make her his heir; that the teacher told him it would not be necessary to draw up the papers there, because they would not be...