Fishback v. Prock

• Decision Date: 16 June 1922
• Docket Number: No. 22796.,22796.
• Parties: FISHBACK et al. v. PROMS et al.
• Court: Missouri Supreme Court

242 S.W. 962

FISHBACK et al. v. PROMS et al.

No. 22796.

Supreme Court of Missouri, Division No. 1,

June 16, 1922.

Appeal from Circuit Court, Lafayette County; Samuel Davis, Judge.

Action by Whitsett P. Fishback and others against Ida Pant Prock and another, in which named defendant filed a cross-bill. Findings for plaintiffs, and from an order granting a new trial, plaintiffs appeal. Affirmed, and cause remanded.

Aull & Aull, of Lexington, for appellants.

Lyons & Ristine and Horace F. Blackwell, all of Lexington, for respondents.

RAGLAND, C.

Plaintiffs are the collateral heirs of James E. Fishback, deceased, claiming an undivided seventeen-eighteenths interest in the land of which he died seized. By this suit they seek to recover possession of such interest and to have the land partitioned among themselves and the defendant Ida Pant Prock, whom they allege owns an undivided one-eighteenth interest therein.

In response to the petition, which was in two counts, one in ejectment and one for partition, she filed a cross-bill in which she set up two oral contracts which she asked be specifically enforced. One of the contracts, it was alleged, was entered into between her father, Thomas Blakey Fishback, and her uncle, said James D. Fishback, in 1891, when she was but three years old, wherein it was agreed:

"That said James E. Fishback should have said Ida Pant Frock and should also have her brother, Ernest Fishback, as his children, and should keep, rear, educate and control them as his children and should adopt them and make them his own children and heirs, and that at his death they should inherit from him as fully and to the same extent as if they were his own children."

With respect to the second contract, claimed to have been entered into between said James E. Fishback and defendant Ida Pant Frock some eight years after the latter had married and left the former's home, it was alleged:

"That in the latter part of the year 1912 and the early part of the year 1913 said James E. Fishback was living on the land above described, and was in feeble health; that at that time Ernest Fishback was suffering with consumption, and was about to go to one of the western states for the benefit of his health, and that James E. Fishback was about to be left alone on said farm, * * * and that said James E. Fishback greatly desired the company and affection of defendant Ida Fant ?rock and her children, and desiring the personal services, care, and attention of said Ida Fant Frock, proposed and said orally to her that she was his daughter, and soon would be his only heir, and that, if she and her husband would give up the place where they were then living, and move to his farm, and if she would nurse him, and attend to his wants, and wait on him, and care for him the balance of his life, he would give her his farm, meaning thereby the land above described; * * * that on or about January 1, 1913, said James E. Fishback again sought out said Ida Fant Prock, and renewed said proposal, and she accepted the same, and shortly thereafter, relying upon the fact of her adoption by said James E. Fishback, and that she was his daughter and child, and also upon his promise to give her his farm, she and her husband had a sale of their personal effects on said Renick farm, and in February, 1913, moved to the farm of said James E. Fishback, and remained there until his death."

It was further alleged:

"That said Ida Pant Frock has, in all things, fully performed all the conditions on her part to be performed but that notwithstanding such complete performance said James E. Fishback failed to adopt her as his child by paper writing executed according to the forms of law, and did not make a will, and did not make a deed or any other conveyance conveying to her the land above described."

Plaintiffs in their reply denied that James E. Fishback ever agreed to adopt his niece but averred:

"That the said Ida Fant Frock was then and there a niece of said James E. Fishback, daughter of his said brother, Thomas B. Fishback, was of tender age, without home, property, or means of support; that her father was afflicted as aforesaid, and with little or no means of support for himself and family, and she was taken and received into the home and family of James E. Fishback out of the kindness of his heart, his affection for his brother and niece, and a desire to aid them and care for her, give her a home in his family, and rear and educate her."

They further denied that James E. Fishback ever, at any time, promised to will or convey his farm to Mrs. Frock for services to be rendered him by her and her husband, but alleged the facts to be:

That Mrs. Frock, her husband, and family of three small children were living on a rented farm; she was about to give birth to another child, "was in ill health, had little means of support, and was without permanent abode or location, and the said James E. Fishback, out of the kindness of his heart, a desire to better their condition, the affection he had for his niece, and a desire to aid them in their then condition, and better care for and maintain themselves and family, permitted them to move to and occupy with him his home, residence, and farm, consisting of some 160 acres of land, of about the value of $18,000, and of the rental value of about $800 per year, and to use and appropriate the income thereof for and to their own use and benefit, free of rent or other charge, which they so continued to do until the time of the death of said James E. Fishback."

They further alleged that, in receiving her nurture and education, and in having the free use of her uncle's land after her marriage, defendant was amply repaid for all the services she ever rendered him, and for that reason there was no equity in her bill.

The only contested issues in the case were those tendered by the cross-bill.

There was no controversy as to the relationship and the general situation of the parties, nor as to the circumstances which were claimed to have attended and given rise to the making of the alleged contracts. In 1891 James E. Fishback and his wife, Mary, were living on his farm of 160 acres in Saline county. That had been their home for many years. They had had five children, but all of them were dead, and no issue survived them. He had a number of brothers living In the same or an adjoining county, one of whom was Thomas Blakey Fishback, the father of the defendant. Blakey Fishback's wife was dead, and he had four children; the oldest, Ernest was seven years of age and the youngest, Ida Fant, was three. He was afflicted with consumption, and wanted to go to Colorado, where he thought climatic conditions would bring about the restoration of his health. His means were meager, and his brothers came to his assistance by taking his children to care for during his absence. Ernest was left with John W. Fishback and Ida Pant with James E. The other two children were placed in the homes of other brothers. His health growing worse, he returned after a month's sojourn in Colorado, and went to the home of John W. Fishback, where he remained until his death which occurred some four or five months later.

After the death of Blakey Fishback, James E. took the boy, Ernest, also, and thereafter reared and educated him and his sister, Ida Fant, and treated them in all respects as though they were his own children. His wife died in 1899, and after that the duties of his household devolved upon Ida Fant. These she apparently discharged with fidelity until 1905, when she ran away and married Ben Prock, her codefendant. Her uncle bitterly opposed her marriage to Prock, and an enstrangement followed which lasted several years. Ernest continued to live with his uncle. In 1910 he married, and brought his wife, Grace, there. In 1913 he was stricken with tuberculosis, and when it became apparent that he could not live long James E. Fishback induced Ida Fant and her husband, who were living on a rented farm in the same neighborhood, to come and make their home with him. Ernest died within a few months thereafter. But they remained with James E. Fishback until his death, which occurred in September, 1918, and were still living on the farm at the time this suit was instituted. While there was some other evidence of circumstances and of admissions on the part of James E. Fishback tending to show that the contract to adopt pleaded was entered into, defendants relied mainly upon the testimony of three witnesses as furnishing such proof. These witnesses were Claude Stone, Grover Chapman, and Grace Fishback. Stone testified that he lived with James E. Fishback as a member of his family from 1886 until 1896, and that he was present and heard the conversation (in 1891) between James E. Fishback and Blakey Fishback with reference to the terms upon which the former would take the latter's oldest child and his youngest. The pertinent portions of Stone's testimony with respect to such conversation were as follows:

"Q. What was it that Uncle Jim...