92 S.W.2d 726
ADOLPH FURMAN and HARRY FURMAN, Appellants,
ST. LOUIS UNION TRUST COMPANY, a Corporation, and ALLEN C. ORRICK, Executors and Trustees of the Estate of HUGH CAMPBELL, for HAZLETT KYLE CAMPBELL; HAZLETT KYLE CAMPBELL, BELLEFONTAINE CEMETERY ASSOCIATION, a Corporation; MARY BOERSTE, AUGUST H. MEYER, AUGUST HERMAN MEYER, Trustee of ADOLPH FURMAN and HARRY FURMAN Under the Will of HUGH CAMPBELL; FRANK HAVINATTI and the Unknown Living Children and Heirs of MRS. BETTIE OTEY ANDERSON, and YALE UNIVERSITY, a Corporation, et al.
Supreme Court of Missouri.
Division Two, March 21, 1936.
Appeal from Circuit Court of City of St. Louis. — Hon. H.A. Hamilton, Judge.
Harry Felberbaum and Jesse T. Friday for appellants.
(1) Adoption may be decreed in equity, notwithstanding the legal or statutory methods of adoption are not complied with. Lynn v. Hockaday, 61 S.W. 885; Thomas v. Malone, 126 S.W. 522; Buck v. Meyer, 190 S.W. 998; Fisher v. Davidson, 195 S.W. 1025; Kay v. Niehaus, 249 S.W. 625; Fishback v. Prock, 279 S.W. 38; Johnson v. Antry, 5 S.W. (2d) 405; Drake v. Drake, 43 S.W. (2d) 556; Eldred v. Glenn, 52 S.W. (2d) 35; Pursifull v. Pursifull, 257 S.W. 118; Shelp v. Merc. Trust Co., 15 S.W. (2d) 819; Bland v. Buoy, 74 S.W. (2d) 612; Carlin v. Bacon, 16 S.W. (2d) 46; Sharkey v. McDermott, 91 Mo. 647; Horton v. Troll, 183 Mo. App. 677, 167 S.W. 1081; Baker v. Payne, 198 S.W. 75; Signaigo v. Signaigo, 205 S.W. 28; Craddock v. Jackson, 223 S.W. 924; Remmers v. Remmers, 239 S.W. 509; McCary v. McCary, 239 S.W. 848; Kerr v. Smiley, 239 S.W. 501; Dillman v. Davidson, 239 S.W. 505; Holloway v. Jones, 246 S.W. 587; Ahren v. Matthews, 85 S.W. (2d) 377. (2) When an oral agreement to adopt exists, or it can be reasonably inferred from the acts, conduct and conditions by the parties, and the obligations of the contract duly fulfilled, a court of equity will enforce specific performance of same. Lynn v. Hockaday, 61 S.W. 885; Thomas v. Malone, 126 S.W. 522; Buck v. Meyer, 190 S.W. 998; Fisher v. Davidson, 195 S.W. 1025; Kay v. Niehaus, 249 S.W. 625; Fishback v. Prock, 279 S.W. 38; Johnson v. Antry, 5 S.W. (2d) 405; Drake v. Drake, 43 S.W. (2d) 556; Eldred v. Glenn, 52 S.W. (2d) 35; Sharkey v. McDermott, 4 S.W. 107, 16 Mo. App. 80; Healey v. Simpson, 20 S.W. 881; Teats v. Flanders, 24 S.W. 126; Nowack v. Berger, 34 S.W. 489; McElvain v. McElvain, 71 S.W. 142; Martin v. Martin, 157 S.W. 575; Taylor v. Coberly, 38 S.W. (2d) 1055; Pursifull v. Pursifull, 257 S.W. 117; Signaigo v. Signaigo, 205 S.W. 23; Craddock v. Jackson, 223 S.W. 924; Remmers v. Remmers, 239 S.W. 509; Kerr v. Smiley, 239 S.W. 501; Dillman v. Davison, 239 S.W. 505; Shelp v. Merc. Trust Co., 15 S.W. (2d) 818; Carlin v. Bacon, 16 S.W. (2d) 46; Holloway v. Jones, 246 S.W. 587. (3) Testimony given by witnesses on behalf of respondents to the effect that Hugh Campbell bought candy, ice cream and clothing for other children than appellants, and bought groceries for the Bornstein family, and that he paid school tuition and furnished music lessons to other children than appellants is immaterial, irrelevant and incompetent to deny agreement to adopt appellants and is inadmissible, and the admission of such testimony by the court was prejudicial error. McCoy v. Pollard, 50 S.W. (2d) 1039; Pursifull v. Pursifull, 257 S.W. 118. (4) Negative testimony of witnesses offered by respondents, to the effect that said witnesses never heard Hugh Campbell say that he intended to adopt appellants or anyone else, has no probative force and is inadmissible, and the action of the court in admitting such testimony on behalf of respondents, over the objection of appellants, constitutes prejudicial error. Remmers v. Remmers, 239 S.W. 515; Bland v. Buoy, 74 S.W. (2d) 612; Weller v. Wagner, 79 S.W. 943; Bates v. Forcht, 1 S.W. 120; McCoy v. Pollard, 50 S.W. (2d) 1039.
Charles Nagel, Daniel N. Kirby and Harry W. Kroeger for St. Louis Union Trust Company and Allen C. Orrick, Executors and Trustees of the will of Hugh Campbell; Frank H. Fisse for Mary Boerste, August H. Meyer and Frank Havinatti.
(1) Equity will not decree specific performance of an oral contract to adopt, and the resulting rights arising from such contract, in the face of the Statute of Frauds, unless: (a) the evidence of the existence of such a contract be clear, cogent and convincing beyond a reasonable doubt. Kidd v. St. L. Union Trust Co., 335 Mo. 1029, 74 S.W. (2d) 827; Shelp v. Mercantile Trust Co., 322 Mo. 682, 15 S.W. (2d) 818; Wales v. Holden, 209 Mo. 552; Grantham v. Gossett, 182 Mo. 651, 81 S.W. 895; Lamb v. Feehan, 276 S.W. 71. (b) the agreement to adopt is based upon a substantial and adequate consideration flowing to the alleged adopting parent. Jaffee v. Jacboson, 48 Fed. 21; Fugate v. Allen, 119 Mo. App. 183, 95 S.W. 980; Lynn v. Hockaday, 162 Mo. 111; 1 C.J. 1377. (c) there is such performance of the contract by parties acting in reliance upon the promise to adopt, that the failure to decree specific performance would result in the perpetration of a fraud upon such parties. Kidd v. St. L. Union Trust Co., 335 Mo. 1029, 74 S.W. (2d) 827; Shelp v. Mercantile Trust Co., 322 Mo. 682, 15 S.W. (2d) 818; Wales v. Holden, 209 Mo. 552. (2) In a suit for specific performance of an oral agreement to adopt, the failure of the alleged adopting parent to communicate the fact of the adoption, or agreement to adopt, or intention to adopt, to persons to whom it would have been natural for him to have communicated such fact, constitutes relevant testimony and persuasive evidence that no such agreement was made. Kidd v. St. L. Union Trust Co., 335 Mo. 1029, 74 S.W. (2d) 827; Shelp v. Mercantile Trust Co., 322 Mo. 682, 15 S.W. (2d) 818. (3) Where a claim is made by one person under an alleged oral agreement to adopt, and the testimony shows that the alleged adopting parent bestowed similar benefits upon, and exhibited like affection for, other children, such testimony constitutes persuasive evidence tending to prove that the treatment accorded plaintiff was not "consistent only with the theory of an adoption," and persuasive evidence tending to disprove the alleged agreement to adopt plaintiff. Arfstrum v. Baker, 214 S.W. 859.
Leahy, Saunders & Walther, Harry Troll and W.W. Henderson for Anton P. Schuler, Guardian of the person and estate of Hazlett Kyle Campbell, a non compos, corespondent.
(1) To sustain an oral contract of adoption, the proof must be clear, cogent and convincing, and of such a character as to leave no reasonable doubt in the mind of the chancellor that the particular contract alleged was made. Wales v. Holden, 209 Mo. 552; Bland v. Buoy, 74 S.W. (2d) 620; Ahern v. Matthews, 85 S.W. (2d) 383; Drake v. Drake, 328 Mo. 966; Johnson v. Antry, 5 S.W. (2d) 405; Eldred v. Glenn, 52 S.W. (2d) 38; Lamb v. Feehan, 276 S.W. 78. (2) We could cite many additional authorities to sustain this statement of the law, but deem it unnecessary, as the cases cited are of recent date and are clear as to their meaning. On account of the momentous consequences which result from allowing oral evidence to create an heir to a dead man's property, the courts in this State have uniformly set a guard over uncertain memory and protection against willful falsehood by requiring the proof to be cogent and overwhelming, without substantial ground for reasonable doubt. Drake v. Drake, 43 S.W. (2d) 560; Baker v. Payne, 198 S.W. 75; Wales v. Holden, 209 Mo. 552; Rosenwald v. Middlebrook, 188 Mo. 58. (3) It requires much less strength of case on the part of a defendant to resist a bill to perform a contract than it does on the part of a plaintiff to maintain a bill to enforce specific performance. Kinney v. Murray, 170 Mo. 700; Veth v. Gierth, 92 Mo. 97; Paris v. Hailey, 61 Mo. 453. (4) A court of equity will not entertain a suit to establish a social status. If this be the sole object, the suit should be dismissed. Horton v. True, 183 Mo. App. 681; Beach v. Bryan, 155 Mo. App. 33; Brewer v. Carey, 148 Mo. App. 211; Froelich v. Mo. Mut. Benefit Assn., 93 Mo. App. 390; State v. Odd Fellows, 8 Mo. App. 153.
Jacob M. and Arthur V. Lashly for Yale University.
(1) Appellants were required to establish the alleged oral contract to adopt, by proof which was clear, cogent and convincing, so as to leave no reasonable doubt in the mind of the chancellor as to the making of the contract pleaded and its terms. "There must be no equivocation or uncertainty in the case." Grantham v. Gosset, 81 S.W. 895, 182 Mo. 651; Arfstrum v. Baker, 214 S.W. 859; Lamb v. Feehan, 276 S.W. 71; Kidd v. St. L. Union Trust Co., 335 Mo. 1029, 74 S.W. (2d) 827. (a) In an appeal from a judgment denying specific performance of an alleged oral contract to adopt, this court will defer to the finding and judgment of the chancellor unless upon the whole record the result reached is clearly erroneous and against the weight of the evidence. Johnson v. Antry, 5 S.W. (2d) 405; Hunnel v. Zinn, 184 S.W. 1154; Creamer v. Bivert, 214 Mo. 473, 113 S.W. 1118. (b) Appellants' evidence of admissions and declarations claimed to have been made by Hugh Campbell during his lifetime to third party acquintances to the effect that he (Hugh Campbell) had promised appellants' mother that he would adopt them did not suffice to prove or establish the alleged oral contract of adoption for the reason that such a contract is not and cannot be proven or established solely by admissions of this character. Teats v. Flanders, 118 Mo. 660, 24 S.W. 126; Kinney v. Murray, 170 Mo. 674, 71 S.W. 197; Wales v. Holden, 209 Mo. 552, 108 S.W. 89; Johnson v. Kern, 117 Neb. 536, 225 N.W. 38; Jaffe v. Johnson, 48 Fed. 21. (c) The trial court did not commit reversible error in denying appellants the relief sought, for the reason that the evidence adduced here was clearly insufficient, under all the authorities in which this court has undertaken to weigh the evidence in cases of this...