Davis v. Hendricks

• Decision Date: 27 January 1890
• Citation: Davis v. Hendricks, 99 Mo. 478, 12 S.W. 887 (Mo. 1890)
• Parties: DAVIS et al. v. HENDRICKS et al.
• Court: Missouri Supreme Court

12 S.W. 887

99 Mo. 478

DAVIS et al. v. HENDRICKS et al.

Supreme Court of Missouri.

January 27, 1890.

CONTRACT TO MAKE A WILL.

Evidence that deceased, before adopting plaintiff, and procuring an act of the legislature changing her name and making her capable of inheriting from him, agreed to make her his heir, and entered into some written contract, which could not be produced at trial, with her father, and afterwards declared that she would have all his property, is not sufficient to show a contract to will to her all his property.

Error to circuit court, Marion county; THEO. BRACE, Judge.

H. M. Boulware, for plaintiffs in error. M. G. Reynolds, for defendants in error.

BLACK, J.

This was a suit in equity, brought by Mary E. Davis and her husband, for the specific performance of a contract alleged to have been made by her father, for her benefit, with John McCormick. The defendants are the widow, the administrator, and the devisees of said John McCormick. Dr. Campbell, the father of the female plaintiff, and John McCormick, with their families, resided in the town of Ashley, Pike county. Dr. Campbell's wife died on the 20th August, 1862, leaving a child named Anna, then about three months old. He had a family of 13 children, and was without property. Mr. McCormick was in good financial circumstances, and had no children. He and his wife adopted Anna as their own child in the manner hereafter stated, and changed her name to that of Mary E. McCormick, which was the name of Mrs. McCormick. The child continued to live with them until she married her co-plaintiff, which was after the death of Mr. McCormick. He died in 1881, leaving a will, executed in 1875, and by which he devised his homestead in Ashley to his wife for life, and at her death to his daughter, Mary E., and to the descendants of her body. This is the only provision made for the adopted daughter. By the will he gave other specified property to his wife, and, after making a devise and bequest to the Palmyra Presbytery, made a nephew and two nieces his residuary devisees. The property devised consists largely of real estate. The widow renounced the will, and elected to take under the statute. The petition states that Dr. Campbell, for and in behalf of his infant daughter, — now Mrs. Davis, — and John McCormick entered into a contract whereby it was agreed that, in consideration that Campbell would surrender his daughter to McCormick, he (McCormick) would adopt her as his child, and "would make her his heir at law, and would grant and devise to her all his property, both real and personal, of which he should die seised and possessed." As bearing upon this alleged agreement, Dr. Campbell testified: "About three weeks after my wife died, Mr. McCormick asked me to step into his store. He said: `Are you willing to comply with the agreement made by my wife and yours in relation to giving up the baby to my wife to adopt, raise, and educate?' I did not hear what had been said by Mrs. McCormick and my wife. I said to him: `Whatever Mrs. McCormick says is true. If you are tired of keeping the child, I will take her home as soon as I make arrangements for the board of the children.' I said something about paying him for services, and he said: `Don't mention that, for my wife wants to adopt the child, and change her name, and name her for herself. I will have to go to the legislature to have the name changed.' I said, `I must know what you are going to do;' and he said: `I intend to make your little daughter my heir.'" The witness goes on to say that after some reflection he agreed to the proposition; that they asked Mr. Pogue, who was present, to reduce to writing what had passed between them, which he did, and that Mr. Pogue was to hold the agreement until called for by one of the parties. Says he never asked for it, though written 21 years ago. Mr. Pogue, whose daughter is one of the residuary legatees, testified that he never saw the contract, and knew nothing about it, except from hearsay. A Mr. Keith testified that he was in Mr. McCormick's store when the latter received a copy of the act of the legislature; that Mr. McCormick produced from his desk what he said was a copy of the act, and also...