Dillmann v. Davison
| Decision Date | 18 March 1922 |
| Docket Number | No. 21265.,21265. |
| Citation | 239 S.W. 505 |
| Parties | DILLMANN et al. v. DAVISON. |
| Court | Missouri Supreme Court |
Appeal from Circuit Court, Franklin County; R. A. Breuer, Judge.
Action by Alice Dillmann and others against Clarence Davison, alias Charles Moore. Judgment for defendant, and plaintiffs appeal. Affirmed.
Jesse H. Schaper, of Washington, Mo., for appellants.
James Booth, of Pacific, and W. L. Cole, of Union, for respondent.
The petition in this case is in two counts. Partition is sought in the first count and ejectment in the second. From a judgment for defendant upon both counts, plaintiffs have appealed.
Plaintiffs claim the estate William R. Moore, deceased, as collateral heirs. Defendant, named in the petition as Clarence Davison, alias Charles Moore, but usually known as Charles Moore, claims the same estate as only child and sole heir of said William R. Moore. Said Moore died intestate on November 23, 1915, without leaving a widow or children, unless defendant occupied the status of an adopted son. Appellant Sarah Thurmond is a sister of William R. Moore. The other appellants are children and grandchildren of his deceased sisters. Moore and his wife, who predeceased him, lived in Franklin county and never had any natural children. In his lifetime Moore owned the lands involved in this suit, which are situated in Franklin county.
On June 12, 1871, William R. Moore and Charles Davison, the natural father of defendant, entered into the following agreement:
"This indenture"made, entered into and concluded on this twelfth day of June, A. D. 1871, witnesseth that Charles Davison father of Clarrance Davison hath this day and doth by these presents place the said Clarrance Davison as an apprentice to William R. Moore of the county of Franklin and state of Missouri to learn the art and business of farming and the said Charles Davison father as aforesaid does by these presents place the said Clarrance Davison under the instruction management and controll of the said William R. Moore from the date of these presents until he the said Clarrance Davison shall have arrived to the full age of twenty-one years he the said Clarrance Davison, being now one year nine months and fourteen days of age duivg (during) all of which time the said Charles Davison (father as aforesaid) covenants that the said Clarrance Davison shall serve the said William R. Moore at the business of farming as aforesaid and the said William R. Moore covenants to instruct the said Clarrance Davison in the art of farming. And to have him taught to read and write and the grand rules of arithmetic the compound rules and the rules of three, and the said William R. Moore further covenants and agrees, that when the said Clarrence Davison shall have arrived at the age of twenty one years he shall inherit in his the said Wm. R. Moores Estate share and shall (share) alike with his own children and hereby makes him his legal heirs and the said William R. Moore further covenants not to remove the said Clarrence Davison out of the jurisdiction of the state of Missouri without the consent of the said Charles Davison and that he will furnish the said Clarrence Davison with suitable wearing apparel washing, meat, and drink.
Defendant was taken by Mr. Moore into his home. He there grew up, went to school, and worked and played as do most boys raised in the household of their natural parents. The evidence tends to show that he lived with the Moores until after he attained his majority. Apparently, he did not take kindly to the life of a farmer. He worked in the livery stable and on a section gang for the railroad. He married and raised a family. He occupied one of William R. Moore's houses, close to the home of his foster parents. There were some disagreements between defendant and the deceased, but nothing of more serious nature than frequently occurs between natural father and son. Mr. Moore evidenced his disappointment that defendant did not make a farmer, and there is some evidence on the part of plaintiffs that he expressed his opinion that defendant was shiftless and of no account.
A large number of witnesses, most of whom were apparently disinterested, testified to facts tending to show most friendly relations between the defendant and the deceased and that deceased frequently referred to defendant as his son and to his children as grandchildren, and that defendant called the deceased and his wife "pa" and "ma" and sometimes referred to him as the "old man." Defendant's children referred to him as "grandpa" and his wife as "grandma." The above manner of address between the parties is overwhelmingly established by defendant's witnesses and is not disputed by any of the witnesses. Even some of the plaintiffs as witnesses admitted this. A number of witnesses testified in behalf of defendant that the deceased frequently declared that when he died "Charlie" (defendant) would get all he had, as he was his adopted son. These friendly relations are shown by defendant's witnesses to have continued to within a month of Moore's death.
The witnesses on the part of the plaintiffs, to a greater or less extent interested in the result of the trial, testified to facts tending to show a state of bad feeling on the part of deceased toward defendant in the last few months of his life. Before, at, and after the death of Mrs. Moore, deceased lived with the defendant and his family. The deceased was given to strong drink and frequently became intoxicated. Defendant often took him home in this condition. On one occasion, and during one of the deceased's sprees, some trouble occurred. Deceased is said to have declared that defendant "thumped" him around. The next morning deceased left the house where defendant and his family lived, and moved his effects into another house a few yards away, which was owned by him. Apparently friendly relations were restored soon thereafter.
Plaintiffs endeavored to show that Moore in his last months frequently expressed his intention of making his will and of giving a house and 40 acres of ground to his sister Sarah Thurmond, and also an intention of taking care of his other collateral heirs, and that defendant would not get any more of his property than he saw fit to give him. Practically all of such testimony, at least all of it which is definite in character, comes from the lips of witnesses who hoped to succeed to the property as collateral heirs or from some member of their immediate families. Testimony contra produced by the defendant comes largely from the lips of witnesses who have no apparent interest in the result. The record cannot be read without this fact being noted.
Apparently Moore executed a will during the lifetime of his wife and destroyed it after her death. Its provisions are not disclosed. There is no evidence of the execution of any formal adoption of the defendant by the deceased. There is abundant evidence to establish performance on the part of the defendant of the contract made with the deceased on behalf of the defendant by his father in 1871. The defendant ran away from home one time in 1888 or 1889, just as natural sons sometimes do, and the deceased went after him to satisfy the pleadings of his wife. Plaintiffs offered testimony tending to show that the deceased then declared that defendant was only a "bound boy," and that he would have let him go and would have released the record, but for the insistence of his wife. The trial judge found the defendant performed the contract on his part and was entitled to a decree establishing his status as an adopted son. This finding is supported, as we think, by the great preponderance of the testimony. The chancellor heard the witnesses testify and observed their demeanor. He was in a position to pass more intelligently upon the credibility of their testimony. We therefore defer largely to his conclusions, as we should.
In his answer the defendant claimed ownership of all the property of the deceased, by virtue of his alleged status as an adopted son, because of full performance on his part of the agreement of June 12, 1871, above set out. He prayed that he be adjudged to be the sole child and heir of the deceased, and, if the court found that said agreement had not been fully executed, that such agreement be specifically performed.
Replying, plaintiffs admitted the execution of the agreement of June 12, 1871, and that—
Same "contained a covenant on the part of said William R. Moore that, when defendant should attain the age of 21 years, he, the said defendant, should inherit in his, the said William R. Moore's, estate share and share alike with his, the said William R. Moore's, own children, and in and by said contract said William R. Moore stated that he, the said William R. Moore, thereby made said defendant his legal heir." (Italics ours.)
Further replying, plaintiffs alleged that said agreement was never acknowledged in the manner of conveyances of real estate as required...
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Menees v. Cowgill
...estoppel arising out of representations to child making it inequitable to deny that child was in fact an adopted child. Dillmann v. Davison, 239 S.W. 505, 328 Mo. 966; Holland v. Martin, 198 S.W. (2d) 16; Shelp v. Mercantile Trust Co., 322 Mo. 682, 15 S.W. (2d) 818; Ranch v. Metz, 212 S.W. ......
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Taylor v. Coberly
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