Fisher v. Davidson

• Decision Date: 01 June 1917
• Docket Number: No. 18553.,18553.
• Citation: 271 Mo. 195,195 S.W. 1024
• Parties: FISHER v. DAVIDSON et al.
• Court: Missouri Supreme Court

195 S.W. 1024

271 Mo. 195

FISHER v. DAVIDSON et al.

No. 18553.

Supreme Court of Missouri, Division No. 1.

June 1, 1917.

Appeal from Circuit Court, Jackson County; Allen C. Southern, Judge.

Suit by Clara Davidson Fisher against Augusta Davidson, administratrix of Thomas Davidson, deceased, and others. Decree for defendants, and plaintiff appeals. Reversed and remanded, with directions.

This suit was commenced by plaintiff in the circuit court of Jackson county, Mo., on May 8, 1913, in two counts. The petition first alleges that plaintiff, whose name was originally Wilson, was born in Minnesota on April 16, 1882; that her mother died in 1883, and left plaintiff in charge of her maternal grandparents, Truman Finch and wife; that on the ____ day of April, 1886, Thomas Davidson and wife, who were childless, adopted plaintiff as their child, although no formal deed of adoption was executed; that said Davidson and wife took charge of plaintiff, changed her name from Wilson to Davidson, and that she was thereafter treated as the child and adopted daughter of said Davidson; that the said Thomas Davidson died intestate as a resident of Kansas City, Mo., while the owner of certain real and personal property, located in Missouri and Arkansas; that defendant Augusta Davidson is his widow, was appointed administratrix of his estate at Kansas City, Mo., and duly qualified as such; that the other defendants are the collateral kin of said decedent; that plaintiff is the only heir and child of said decedent; that she is the owner of all the real and personal property owned by decedent, subject to the statutory interests of said Augusta Davidson, in Missouri and Arkansas. A decree is prayed for declaring that plaintiff is the adopted child of said decedent, Thomas Davidson, and that she is the absolute owner of all the real and personal property owned by decedent at the time of his death, subject to the statutory interests of said widow, etc. The second count of said petition practically covers the same matters contained in the first count, and seeks to compel defendants to specifically perform said contract of adoption, etc. Both counts allege that plaintiff married Charles Fisher in 1904.

The separate answer of Augusta Davidson individually and as administratrix admits that she is the widow of Thomas Davidson, deceased, and administratrix of his estate; that she is entitled to the personal property of decedent and to all her marital interests and estates therein, as well as in his realty. She denies every other allegation in the petition. She likewise pleads the statute of Kansas and two decisions of said state, in bar of plaintiff's right to maintain this action on account of the alleged adoption not being in conformity to the laws of said state. The remaining defendants joined in a separate answer; admitted that Thomas Davidson died January 16, 1913, leaving as his widow the defendant Augusta Davidson; that she was appointed administratrix by the probate court of Jackson county, Mo., and duly qualified as such; that decedent at the time of his death was seised of the real estate and personal property described in petition; that they are the collateral heirs of said decedent, and claim therein an inheritable interest in the property aforesaid, as his only heirs, subject to the rights of said widow. The answer denied all the other allegations of plaintiff's petition, and set up the Kansas statute and decisions as a bar to plaintiff's right of recovery.

The reply alleges that plaintiff's father abandoned and turned her over to her grandparents, Truman Finch and wife, who had authority to make the contract of adoption set out in petition; that decedent had full knowledge of said facts at the time of said adoption; that said agreement was made in the state of Kansas.

Admitted Facts.

The following facts were admitted by counsel during the trial: That Dr. Davidson died in Arkansas January 16, 1913; that he left no descendants; that Augusta Davidson was appointed administratrix of his estate by the probate court of Jackson county, Mo., and qualified as such, in respect to the Missouri property; that the other defendants are the brother and sisters, nephew and niece of decedent; that plaintiff, Clara Fisher, married on November 24, 1904.

It appears from the evidence that plaintiff, who was the daughter of Arthur Wilson and wife, was born in Minnesota, about 1882, and that her mother died some time in 1883. Plaintiff was the youngest of five children. After the mother's death the plaintiff's father took her to her maternal grandparents. The latter came with plaintiff and a brother or sister to the home of John Hallock and wife in Phillips county, Kan. Plaintiff was about three years of age at that time. Her grandparents were poor, and they tried to find a home or place for her to live. There were 11 in the Hallock family after plaintiff's arrival, and all were occupying a single room, when the grandparents went to see Thomas Davidson about taking plaintiff. This brings us to the main issue in the case, as to what occurred between the grandparents, Truman Finch and wife, and the Davidsons, when plaintiff was taken by the latter.

Mrs. Hallock in her deposition read in evidence by plaintiff testified, among other things, as follows:

"Q. Did you hear Dr. Davidson or his wife say anything about how they were going to take the child? A. The understanding was that they should take her as their own child and that they would adopt her. * * * Q. Was anything said by Dr. Davidson indicating that he simply wanted to take Clara to raise, or was he to take her as his own child? A. Why, he was to take her as his own child. Q. Were you there when they took her away? A. Yes, sir; I was there. My mother went part of the way with her because she did not care to go with strangers. The Davidsons lived two miles away. Clara remained with them after that. They changed her name as soon as they took her. We visited back and forth with the Davidsons. Q. Do you know whether or not the Davidsons spoke of Clara as their own child and told other people that she was their own child? A. Yes; they always did that."

On cross-examination this witness testified as follows:

"Q. When you speak of Mr. and Mrs. Davidson adopting Clara, or taking her to live with them, you mean one of them in particular or both of them? A. Both of them. Q. Mrs. Hallock, you have always merely supposed and understood only that the Davidsons had adopted Clara; that is, it's been your understanding? A. Yes, sir. Q. You stated that Clara had told you that she always supposed that she was adopted until after her marriage. A. Yes; she told me that. She said it to me in a letter. Q. How did Clara happen to tell you that? A. She wrote to me to find out what I knew about it, and she said that in that letter. Q. That was just after her marriage? A. No; that was this spring, after Mr. Davidson died."

John T. Hallock was asked to state what Dr. Davidson said in reference to taking plaintiff to raise or adopting her, and he said:

"I don't remember there was anything said about adopting her. I don't think there was."

He further testified on cross-examination:

"Q. Was anything said by those parties as to whether he took Clara as his own child? A. Yes; I don't remember anything about the adoption. Q. Your recollection is that they were to take Clara and treat her and provide for her as their own child? A. Yes; and that she should be called after their own name and be treated as their own child. They would not take her unless they could call her and take her as their own child; that import, anyway. Q. What did Dr. Davidson say about taking Clara and wanting to give her his name and having it understood that he was to keep her always as his own child, and that her kinfolks should not interfere and try to take her away from them? A. That's it, as near as I can state it. Q. This all occurred at your house in Phillips county, Kan., did it not? A. At my house or my dugout."

He further testified on cross-examination:

"I think Clara was about four years old at that time. My father-in-law and mother-in-law, Truman Finch and wife, brought her to my house. They are both dead now."

The above is substantially all the testimony as to what occurred in the state of Kansas at the time of the alleged adoption. When plaintiff was about 12 years old, the Davidsons moved with her to Kansas City, Mo., and she continued to live with them up to the time of her marriage in 1904. During all the time she lived with them, after they took her in Kansas, she went by the name of Clara Davidson. She was introduced to their friends, acquaintances, and those with whom they did business as their daughter. They always spoke of her as their daughter or adopted daughter, and never mentioned her in any other manner. She went to school while at Kansas City, and performed such services around the house as any child would perform in behalf of her parents. They were kind and affectionate to her and she was always a kind and dutiful child toward her adopting parents. In fact, the community where they lived at the time of her marriage universally understood that she was the natural or adopted child of the Davidsons. The plaintiff understood up to the time of her marriage that she was their adopted child. These facts were so strongly proven by the numerous witnesses that defendants' counsel, during the examination of Dr. Frank S....