Durkee v. Durkee

• Decision Date: 25 March 1887
• Court: Vermont Supreme Court
• Parties: DURKEE v. DURKEE.

8 A. 490

59 Vt. 70

DURKEE

v. DURKEE.

Supreme Court of Vermont.

March 25, 1887.

Appeal from chancery, Washington county, March term, 1886; Powers, Ch.

Heard on bill, answer, and master's report. Bill dismissed, with costs.

The bill in substance alleges a contract by defendant and his wife to adopt the orator, and make him their heir at law; that they did not do so, and that defendant never intended to; that defendant, for the purpose of obtaining orator's services, induced him to believe, and he did believe till long after he became of age, that he was such adopted son and heir at law; that the value of his services exceeded the cost of his maintenance by many hundred dollars, which the orator fully believed he should enjoy after the death of defendant and his wife; that defendant's wife, at the time of her death, held property in her own right which would have become the orator's if the contract had been performed; that by the wrongful acts of defendant he was compelled, to his damage, to leave defendant's farm, which he had leased. The prayer was that the court by its decree order the defendant to perform said contract, and make the orator the heir at law of the defendant and his wife, and to pay to the orator such portion of the deceased wife's property as would have belonged to him if there had been a valid adoption; that the defendant be restrained by injunction from alienating or incumbering his property, so that at his death it will come to the orator; or that an account be taken of the services of the orator, and that he be paid for his services, and made as well off as if the defendant had performed his contract, and for other and further relief.

The master found, in substance, that some time in 1861, when the orator was about six years old, he and his younger sister, being orphans and destitute, were taken to the defendant's house; that, soon after, defendant concluded to keep them; that at the legislature of 1862 defendant procured the passage of an act changing the children's names from Robinson to Durkee, and constituting them heirs at law of himself and wife; that, without defendant's procurement or request, a section was added providing that the act should not take effect till defendant and his wife should make their assent thereto in writing, signed by them in the presence of two witnesses, and acknowledged before a justice of the peace, and have it recorded in the town clerk's office; that defendant procured such a paper to be drawn up and delivered to him, but it was never executed and recorded; that orator saw said act in 1872; that the orator continued to live with defendant, and was treated as his son, and was always called by the name of Durkee, and supposed he was in fact the adopted son and heir at law of defendant and his wife till long after he became 21 years of age; that the orator was induced to and did believe, until June, 1881, that he was the adopted son and heir at law of defendant and his wife, and that their treatment and actions towards him warranted him in that belief; that in 1863 orator's sister died, and defendant and his wife had her death recorded as their adopted daughter, and erected a monument to her memory, and had her name inscribed upon it as such adopted daughter; that from the time the orator was 21 till the death of defendant's wife, in 1880, he worked for defendant to a considerable amount in value, for which he never received any pay; that the time he did the work he did not expect to be paid for it, but worked as many children do for their parents; that he would not have so worked without pay had he not supposed himself the adopted son and heir at law of defendant and his wife; that defendant's wife, at the time of her death, held property in her own right to the amount of about $1,000; that she frequently declared that it was to be the orator's when she was through with it; that in October, 1880, the orator, having married, moved onto defendant's farm under an arrangement very advantageous to the orator; that he remained there till the following July, when he was forced to leave by the conduct of defendant, and through the defendant's...