Foster v. Petree

• Citation: 141 S.W.2d 131,235 Mo.App. 414
• Parties: CORA WAGNER FOSTER, APPELLANT, v. FRANK PETREE, ADMINISTRATOR WITH WILL ANNEXED OF ESTATE OF GEORGE WAGNER, DECEASED, ET AL., RESPONDENTS
• Decision Date: 20 May 1940
• Court: Court of Appeals of Kansas

141 S.W.2d 131

235 Mo.App. 414

CORA WAGNER FOSTER, APPELLANT, v. FRANK PETREE, ADMINISTRATOR WITH WILL ANNEXED OF ESTATE OF GEORGE WAGNER, DECEASED, ET AL., RESPONDENTS

Court of Appeals of Missouri, Kansas City

May 20, 1940

Appeal from the Circuit Court of Nodaway County.--Hon. Ellis Beavers, Judge.

Judgment affirmed.

Horace Merritt and L. F. Randolph for appellant.

(1) Where an agreement to adopt a child had been performed upon the child's part, the contract will be enforced in equity though it is not in writing; so our first point is that the plaintiff is entitled to decree of adoption under the facts stated in the petition, see: McElvain v. McElvain, 172 Mo. 244, 71 S.W. 142; Fisher v. Davidson, 271 Mo. 195, 195 S.W. 1024; Signaigo v. Signaigo, 205 S.W. 23; Craddock v. Autrey, 223 S.W. 924. Parol agreement of adoption may be established by acts and conduct of parties and inferences therefrom. Johnson v Autry, 5 S.W.2d 405. (2) This suit was filed within the time allowed by the fifth clause of sec. 862, R. S. of 1929 within five years from the time of the discovery of the fraud and false statements by which she had been deceived and deprived of her decree of adoption. State ex rel. v Stuart, 111 Mo.App. 478. Administrator cannot plead Statute of Limitations against him as administrator until ten years after final settlement. Nelson v. Barnett, 123 Mo. 564; Statute does not run until fraud is discovered; Laired v. Keathley, 201 S.W. 1138; McLain v. Parker, 229 Mo. 69, 90, 91. (3) By his demurrer this administrator admits all the facts well pleaded. In order that any matter can be to have passed in rem judication it must have been tried and adjudicated by the court. 2 Woerner's American Law of Administration, sec. 506; Wright v. Salisbury, 46 Mo. 26; 1 Freeman on Judgments, secs. 273, 274; Packet v. Sickles, 24 How. 333, U. S. Sup. Ct., 5 Wall 580, cited in Nelson v. Barnett, 123 Mo. 564.

Pettijohn & Eiser and Petree & Wright for respondent.

(1) Plaintiff's cause of action, if any she have, is barred by the Statutes of Limitation. Sec. 861, R. S. 1929; 37 C. J. 976, secs. 358, 359; Dryer v. Railroad, 170 Mo. 550. (2) Plaintiff cannot maintain this action without returning the amount paid her in settlement of former suit filed on same cause of action. 13 C. J. 620, sec. 679. (3) The court having adjudged the third petition insufficient was compelled to obey the mandate of Sec. 796, R. S. 1929, and dismiss the suit. Beardslee v. Morgner, 73 Mo. 22; Everett v. Glenn, 35 S.W.2d 652. (4) The allegations relied on by appellant as constituting fraud are not sufficient to authorize setting the settlement and judgment aside. Orlann v. Laederich, 92 S.W.2d 190; Bragg v. Packing Co., 205 Mo.App. 600.

KEMP, J. Bland, J., concurs; Shain, P. J., dissents.

OPINION

KEMP, J.

In this case, the trial court held three petitions insufficient upon demurrer, whereupon judgment was rendered dismissing plaintiff's suit and assessing treble costs against her, in conformity with the provisions of section 796, Revised Statutes of Missouri, 1929, Missouri Statutes Annotated, page 1046. From this judgment plaintiff prosecutes this appeal.

The provisions of section 796, supra, are mandatory, and if this last demurrer was properly ruled the judgment must stand. [Beardslee v. Morgner, 73 Mo. 22; Gordon v. Burris, 125 Mo. 39, 42, 28 S.W. 191; Everett v. Glenn, 35 S.W.2d 652.]

The grounds of the demurrer to the third amended petition were that the petition does not state facts sufficient to constitute a cause of action in favor of plaintiff and against defendant, and that it shows on its face that plaintiff's cause of action is barred by limitations under the provisions of section 862, Revised Statutes of Missouri, 1929, Missouri Statutes Annotated, page 1143.

The petition is very long and we deem it unnecessary to burden the record by setting it out in haec verba. The purposes of this review will be served by merely summarizing, for the most part at least, the facts alleged in the petition, which are as follows:

Plaintiff was born April 6, 1879, in Lansing, Michigan, of the parentage of A. E. Johnson and Catherine Johnson. In 1881, following the death of plaintiff's father, plaintiff's mother entered into a contract with George Wagner, by the terms of which her mother gave plaintiff to the said George Wagner and renounced all rights of control over and claims to plaintiff, and the said George Wagner agreed to take plaintiff into his home and to adopt her as his heir. Said Wagner took plaintiff to his home, giving her the name of Cora Wagner, and at all times thereafter treated her as his child.

Plaintiff and her mother complied with the conditions of the contract by them to be performed, but the said Wagner "neglected and failed to make or cause to be made a deed of adoption or to put into legal execution on his part his promise and consideration in said contract between him and plaintiff's mother contained."

On July 3, 1919, George Wagner died, leaving a pretended will wherein plaintiff was not mentioned. On March 2, 1923, plaintiff filed suit against Frank Petree, as the duly appointed and acting Administrator with Will annexed of the Estate of George Wagner, deceased, and others named as beneficiaries in said will, wherein she alleged substantially the same facts as above set out, and wherein she prayed that the court decree her to be the adopted child of George Wagner, deceased, and his pretermitted heir, and that as to her the said George Wagner died intestate.

Before the case was reached for trial at the succeeding May Term of court, but after depositions had been taken which, it is alleged, supported all the facts alleged in plaintiff's petition in that suit, defendant Petree, Administrator (now quoting the concluding portion of a sentence from the petition in the instant case), "falsely stated and represented to the plaintiff and to her then attorneys that although she was entitled to her decree and judgment as she had sued for by which she would be decreed to be the adopted child and pretermitted heir of George Wagner, deceased, and that as to her said Wagner died intestate, he falsely and fraudulently represented and stated to her that said estate was of small value, the notes held by said George Wagner against one . . . amounting to about $ 60,000 was entirely worthless and not worth the paper they were written upon as the man had lost everything in some investments he had made, and because of that the total assets of said estate of any value after payment of the debts and costs of administration would amount to less than ten thousand ($ 10,000) dollars and the said Petree stated to her that if she would accept now the sum of five thousand dollars in full of her share he would agree to let judgment be rendered in her favor in the said suit against him and the defendants as prayed for in said petition, and he would pay her the said $ 5000, and knowing that he had the peculiar knowledge of the assets of said estate as had been inventoried by him she believed his statements as to the assets of said estate, and she agreed upon the condition as she believed and understood and as stated to her by said Petree that she would have judgment and decree entered against him and the other defendants, decreeing her to be the adopted child of said George Wagner deceased, and that as to plaintiff said George Wagner died intestate and her suit thereby terminated and said Petree and her attorneys drew a stipulation by which as she was informed by said Petree such a judgment and decree was entered up and made of record in said cause, and the said Petree paid to her said $ 5000 as he agreed to do, but the said statements and agreements as stated to her by said Petree were false and by said fraud, trick and artifice of said Petree said judgment was written in said stipulation that said cause was to be dismissed, and the plaintiff did not know of said trick and fraud and deceit that had been practiced upon her and her attorneys, and did not know that decree had not been entered against said Petree as aforesaid, nor that the statements as to the value of the assets of said estate were false and untrue until on or about the . . . day of April, 1932, when she discovered that the said notes referred to as worthless and so represented and stated to her by said Petree to be absolutely worthless had been paid in full, and collected by said Petree, who had kept silent and did not inform the plaintiff that his statement that they were worthless was untrue, and so when she did discover this fraud which had been perpetrated upon her inducing her to accept the sum of $ 5000 in full of her share as the adopted child of said George Wagner deceased, she then discovered for the first time that said judgment and decree was not entered against said Petree and the defendants as had been agreed but that instead thereof the said Petree had by trick and deceit only had judgment rendered against her dismissing her cause instead of judgment for plaintiff against him upon the issues of her cause as he had stated to her and which had been agreed to by her upon his statement that he would let her have judgment and such decree against him and pay her the sum of $ 5000 as her share of said estate being the amount of same as she was induced to believe by him when he falsely stated that the estate was of small value and said notes were of no value."

The petition further alleges that she accepted said $ 5000 as her full share in said estate, relying upon said Petree's agreement that a decree would be entered adjudicating her to be the adopted child and pretermitted heir of George Wagner deceased, and believing that if the assets of the estate represented to be...