Fredrick v. Christensen, 9072

• Decision Date: 27 October 1949
• Docket Number: No. 9072,9072
• Parties: FREDRICK v. CHRISTENSEN et al.
• Court: South Dakota Supreme Court

Page 529

39 N.W.2d 529

73 S.D. 130

FREDRICK v. CHRISTENSEN et al.

No. 9072.

Supreme Court of South Dakota.

Oct. 27, 1949.

Rehearing Denied Nov. 22, 1949.

E. V. Morrill, Sturgis, for defendants and appellants.

Thos. G. Wall, Sturgis, for plaintiff and respondent.

RUDOLPH, Judge.

Plaintiff brought this action to enforce an alleged oral contract wherein it was agreed that plaintiff should inherit and succeed to the property of John and Clara Fredrick upon their death. The trial court determined that the contract in fact existed and gave effect thereto. The defendants have appealed.

Plaintiff was legally adopted by John and Clara Fredrick in 1910. The basis of plaintiff's claim is that the consent of plaintiff's father to the adoption was given in consideration of the oral agreement that plaintiff would become the heir of the Fredricks and receive the Fredrick property upon the death of John and Clara.

The principal contention of appellant is that the evidence is not sufficient to sustain the finding of the trial court that the contract was made. The rule is established in this state that one claiming the benefit of contract such as the alleged contract in this case has the burden of establishing it by evidence so clear, cogent and convincing as to leave no reasonable doubt as to the agreement. Rhode v. Farup, 67 S.D. 437, 293 N.W. 632; Walsh v. Fitzgerald, 67 S.D. 623, 297 N.W. 675; Crilly v. Morris, 70 S.D. 584, 19 N.W.2d 836. The trial court summarized the testimony in a memorandum opinion as follows:

'Let us then consider the facts in this case as they come from the lips of those who participated in the transactions and conversations which culminated in the legal adoption of Freddie Eugene Secrest 38 years ago by John and Clara Fredrick.

'In 1910, John Fredrick was a man about fifty years old. He was the 'Grasshopper Jim' of early Black Hills days, and a contemporary of 'Calamity Jane,' 'Poker Alice,' and 'Wild Bill' Hickok, and one of the lesser luminaries of early Black Hills days. He was a hard man, of questionable integrity and virtue, and generally looked upon in the community as being possessed of a violent and uncontrolled temper. His wife was considerable younger, being at the time about 35 years of age. The couple were childless and apparently recognized that they always would be. Clara Belle Fredrick seems to have been a gentle, kindly woman, with a thwarted but highly developed maternal instinct.

'At the time this story begins, the Fredricks were living on a small ranch on Spring Creek, near Bear Butte, in Meade County, not far from Sturgis. Living in the neighborhood were Eugene Secrest and his wife, young married people not more than 21 years of age. To them had been born in 1908 an only child, Freddie Eugene Secrest, the plaintiff in this suit. The Secrests were poor people, dependent for their existence on his casual and unskilled labor. The country was new and raw, and in the process of settlement by homesteaders. In the summer of 1909 the young wife died. Unable to care for his little son, he entrusted him to his wife's brother, Howard Baker, who, with his wife Marie and infant daughter, lived in the general vicinity. He himself lived and worked with Baker much of the time, although he had a rented cabin on Nine-Mile Creek, where he lived alone after his wife's death.

'In the winter of 1910, commencing in January and until about the first of March, Eugene Secrest and Howard Baker, working together, were baling hay for John Fredrick and hauling it to Fort Meade. Mrs. Baker, with her baby daughter and Freddie, were with them, and she was doing the cooking for the balers. The Bakers and Secrest were, during the baling and hauling operations, living in a cabin or small house on the Fredrick place, about 40 or 50 feet from the main house occupied by Mr. and Mrs. Fredrick. The two women, Mrs. Baker and Mrs. Fredrick, visited back and forth several times each day, and in the evenings after work all of the people before mentioned frequently were together in the Fredrick home.

'Mrs. Fredrick developed a strong attachment for Freddie, and much of the time kept him at her home and cared for him there. On these evenings when the Bakers and Secrest, together with the children, were in the Fredrick home, Mrs. Fredrick expressed to the others, including her husband, her wish to adopt the child, and persistently argued and urged to the Bakers and Eugene Secrest, not only her desire and need for the child, but as well the advantage which would result to the child if the father would consent to his adoption by them. These conversations and Mrs. Fredrick's insistence on adoption were frequent, and followed the general pattern of promises as to what she and her husband could and would do for the child if only his father would consent to their legal adoption of him. Howard Baker and his wife relate these promises in this language:

"They wanted to adopt him as their own, educate him, and take care of him, the same as their own, and when they passed away, he would get everything they had; everything they owned.' (Dep. Marie Baker, P. 23.)

"That they wanted to adopt him as their own child and give him everything when they were gone.' (Dep. Marie Baker, P. 24.)

"She said she wanted him as her own, to raise him and give him everything she had and when she died to give him everything she had, and on that occasion told Mr. Secrest she wanted him; that she could take better care of him, and give him more.' (Dep. Marie Baker, P. 24.)

"She constantly said she loved the baby and wanted to keep him, and she didn't have any children of her own, and when they had gone, he would get everything they had. She was asking for the boy to be adopted to her, and night after night she would ask us if there was any way she might get that boy by adopting him. She said if Secrest would adopt that boy to her that she would raise him as her own child, and educate him, and when they passed away he would become the only heir to their estate and that he would get it all; that they would never have any more children and he would be the only heir.' (Dep. Howard Baker, P. 5.)

"The day we left there with the boy she said she would like to adopt the boy and by all means she would raise him as her child, and she would give him a good education and when they were through with the property he would get it all and everything they had.' (Dep. Howard Baker, P. 6.)

"The conversations about they wanted to adopt the child took place very often. When we wanted to put the child to bed we would have to go and talk to them, and every time we went to get that boy she was begging for him, and she made the promises I have testified to about the inheritance, the property, many times.' (Dep. Howard Baker, P. 8.)

"That if Secrest would allow her to adopt that child she would raise him as her own child and educate him and keep him as her own child, and when they were through with their property he would get anything they had.' (Dep. Howard Baker, P. 15.)

"She told us many times he would be the only heir they would have, and she knew of no other heirs.' (Dep. Howard Baker, P. 16.)

'Mrs. Lois Bovee, age 78, who was an aunt of Mrs. Eugene Secrest, testified that, at her home on Spring Creek, in Meade County, prior to the legal adoption proceedings, with John and Clara Fredrick, Eugene Secrest, and herself present:

"There was talk about the adoption of Freddie in which both Mr. and Mrs. Fredrick said they would adopt this boy, give him a good education, and when they died all their property would revert to this boy. They told that to Mr. Secrest, and Mr. Secrest told me he wouldn't adopt him under any other conditions because he wanted a good home for the boy. Later, when Freddie was about four years old I had a conversation with John Fredrick, and he told me what a smart boy he was and how they liked him, and he said, 'It will be only a little while until he can go to school, and we expect to send him to college if he wants to go, and educate him, and when we are through with our property it goes to Freddie.' I had a talk with Mrs. Fredrick a few months after the adoption, and she brought up the subject of Freddie's adoption, and told me they expected to raise him as their own, educate him, and when they died, he was to receive all their property; and she said that Eugene Secrest wouldn't adopt him to them unless they made those agreements: that they were to raise him as their own, give him a good education, and when they died, he was to receive all their property.'

'Gena Gullickson, who was a near neighbor of the Fredricks, says that during the time the negotiations for Freddie's adoption were being had, Mrs. Fredrick told her at different times that they would like to get him, and in reference to a later conversation said:

"One day Mrs. Fredrick came over to my place all smiles and said they had adopted the boy and had papers on him, and he would be like their own, and it surprised me, and I said, well, I couldn't see how a father could give away his little boy. Oh, she said, he was a poor man. He didn't have anything, and he figured they could do more for the boy than he could. They would send him to school, and when they were gone, he would get what they had. She said they would never have any children of their own. She said she was...