Drake v. Drake
| Decision Date | 17 November 1931 |
| Citation | 43 S.W.2d 556,328 Mo. 966 |
| Parties | S. E. Drake et al. v. Augusta Drake et al., Appellants |
| Court | Missouri Supreme Court |
Appeal from Circuit Court of City of St. Louis; Hon. Anthony F Ittner, Judge.
Reversed and remanded (with directions).
Judson Green, Henry & Remmers for appellants.
(1) Adoption may be decreed in equity, notwithstanding the legal or statutory methods of adoption are not complied with. Horton v. Troll, 183 Mo. 685; Fisher v Davidson, 271 Mo. 195; Baker v. Payne, 198 S.W. 75; Signaigo v. Signaigo, 205 S.W. 28; Craddock v. Craddock, 223 S.W. 924; Remmers v. Remmers, 239 S.W. 509; McCrary v. McCrary, 239 S.W. 848; Kerr v. Smiley, 239 S.W. 501; Dillman v. Davidson, 239 S.W. 505; Holloway v. Jones, 246 S.W. 587; Kay v. Niehaus, 298 Mo. 201, 249 S.W. 625; Hickox v. Johnston, 113 Kan. 99, 27 A. L. R. 1322. (2) Where an oral agreement to adopt exists, or it can be reasonably inferred from the acts, conduct and conditions of the parties, and the obligations of the contract duly fulfilled, a court of equity will enforce specific performance of the same. Signaigo v. Signaigo, 205 S.W. 28; Craddock v. Craddock, 223 S.W. 924; Kay v. Niehaus, 298 Mo. 201, 249 S.W. 625; Fisher v. Davidson, 271 Mo. 195; Remmers v. Remmers, 239 S.W. 509; Kerr v. Smiley, 239 S.W. 501; Dillman v. Davidson, 239 S.W. 505. (3) A court of equity has jurisdiction to decree the existence of the status of adoption, even in the absence of an agreement where the facts and circumstances point to an adoption. Rauch v. Metz, 212 S.W. 357; Holloway v. Jones, 246 S.W. 587; Fisher v. Davidson, 271 Mo. 207; Shelp v. Trust Co., 15 S.W.2d 823. (4) As Arnold Drake was the adopted son of James G. Drake, and therefore his sole heir, the suit in partition should have been dismissed.
Grant & Grant, R. A. Mooneyham and R. E. L. Marrs for responents.
(1) No valid contract to adopt could have been made and no status of adoption could have been established by Mr. Drake except within the first three and one-half years of his marriage to Mrs. Drake when the boy was between the ages of five and eight and one-half years. Since June 18, 1917, adoption can be made only by a judgment of the juvenile court in a proceeding to which the State is a party. Laws 1917, pp. 193-195; R. S. 1919, secs. 1095-1103; Rockford v. Bailey, 17 S.W.2d 941. (2) For specific performance of an oral contract to adopt, the evidence of the contract and of its terms must be so clear, cogent and convincing as to leave no reasonable doubt in the mind of the chancellor. Gipson v. Owens, 226 S.W. 856; Wales v. Holden, 209 Mo. 552; McElvain v. McElvain, 171 Mo. 244; Kinney v. Murray, 170 Mo. 674; Kay v. Niehaus, 298 Mo. 201. (3) No less degree of certainty is required of proof to establish the existence of a status of adoption than to specifically enforce an oral contract to adopt. Holloway v. Jones, 246 S.W. 587; Shelp v. Mercantile Trust Co., 15 S.W.2d 818. A stepfather is under a legal obligation to support his minor stepson. Eickhoff v. Sedalia, 106 Mo.App. 541. The failure of Mr. Drake to take the steps necessary for adoption after learning what those steps were, negatives any recognition of an obligation on his part to adopt Arnold. Wales v. Holden, 209 Mo. 552.
Action to partition real estate located in the city of St. Louis, Missouri. On March 18, 1922, one James G. Drake died seized of the land in question and left surviving him his widow, Augusta Drake, and certain collateral kindred. The widow was made a defendant in the action. The other defendants together with the plaintiffs constitute the collateral heirs of deceased. The deceased had no children of his own blood. His widow has four children of a former marriage: three daughters and one son. The son, by guardian, intervened in this action under the name of Arnold Drake, alleging that he was the adopted son of James G. Drake, deceased, and praying that his status as such adopted son be established, or in lieu thereof specific performance of deceased's oral contract to adopt him be decreed and that he be declared to be the owner in fee of the property in question, subject to the rights of the widow, Augusta Drake, and that deceased's collateral kindred be precluded from claiming any interest therein. The decree denied intervener's claim of adoption, dismissed his intervening petition, ordered partition and sale of the property as prayed in the petition and required that the widow, Augusta Drake, account for the rental of the property and for certain personal property received by her as administratrix of the estate. Intervener and the widow appealed.
Plaintiff's petition was in conventional form and sought partition of the property among Augusta Drake, widow of deceased, and his collateral heirs. All defendants except the widow and certain minor defendants, who were represented by guardian, filed answers admitting the allegations of plaintiffs' petition and joining in the prayer for partition. The minor defendants, through their guardian, affirmed their interest in the property, alleged their lack of knowledge of the facts and asked that plaintiffs be required to make strict proof. The widow, Augusta Drake, answered admitting the death of James G. Drake, and his ownership of the property, claimed one-half interest in the property as his widow, and denied generally other allegations in the petition.
The intervening petition of Arnold Drake admitted the death of James G. Drake and his ownership of the property at the date of his death; admitted that his widow, Augusta Drake, was entitled to a one-half interest in the property and denied generally other allegations of the petition. Intervener makes the following further allegations:
"Further answering, and by way of cross-bill, this defendant states that he is the owner in fee of the property herein, subject to the rights of his mother, Augusta Drake, he being the adopted son of the said James G. Drake, and alleges that prior to his death, March 18, 1922, the said James G. Drake was married to this defendant's mother in the city of Edwardsville, State of Illinois, on the . . . day of December, 1913, at which time this defendant was an infant of tender years; that the said James G. Drake had no children; that shortly after the said marriage James G. Drake agreed to adopt this defendant as his son and to make him his heir; . . ."
The petition concludes by pleading the facts and circumstances under which intervener lived in James G. Drake's home. To avoid repetition, we will not reproduce these allegations of the petition because the same facts will be stated in our review of the evidence. These facts are fairly stated by appellants as follows:
All the witnesses testified that the boy was known by the name of Arnold Drake; that shortly after Drake's marriage, and until his death, Arnold called Mr. Drake "pap" or "papa," and Mr. Drake always referred to him as "my boy" or "my son." Three witnesses testified that Drake was like a father to him, and was very proud of him. He told one witness that Mrs. Drake could do with the girls as she liked, but with Arnold, "I am going to do what I want."
Dr. Hodges, who became the family physician about four years prior to Drake's death, and who had known the boy and visited in the family, testified that Drake and Arnold referred to each other as papa and son, and that the relationship between them was such that he thought Arnold was Drake's own son, and never knew until after Drake's death that Arnold was not his own son.
All witnesses testified to the great affection between them; that Arnold was obedient to Mr. Drake, brought lunch to him at the barber shop, especially when school was not in session; that Drake supported him and provided his education and recreation.
Three witnesses -- Drake's closest friends -- testified that Drake told them many times that he was going to adopt Arnold. He asked one witness shortly after the marriage, and another somewhat later, how to go about doing so. One witness, who associated with Drake after his marriage, but who moved away some time prior to Drake's death, testified that he joked Drake about Arnold being his boy, and he replied, "Well some day he will be my boy." When Arnold was about eleven years old, one day at the dinner table he made this remark, "Pop, when are you going to adopt me?" To which Drake replied, rather jokingly, "Wait till I see what kind of a boy you turn out to be." That he turned out to Drake's satisfaction was affirmed by all the witnesses. Mrs. Drake...
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