Gamache v. Doering
| Decision Date | 05 November 1945 |
| Docket Number | 39380 |
| Citation | 189 S.W.2d 999,354 Mo. 544 |
| Parties | Clara Gamache, Plaintiff in Error, v. Alice J. Doering and Ewald F. Sunkel, Executors, d.b.n., of the Estate of Laura J. Kalb, Deceased, et al |
| Court | Missouri Supreme Court |
Writ of Error to Circuit Court of City of St. Louis; Hon Robert L. Aronson, Judge.
Affirmed.
Cox & Blair and Walter Wehrle for plaintiff in error.
(1) The evidence which showed that in a ceremony in the presence of witnesses Mrs. Kalb stated that she adopted plaintiff as her daughter and heir and plaintiff stated that she agreed thereto and would be Mrs. Kalb's adopted daughter, and treated her as a mother, which both of them believed was valid and effective as a legal adoption, and that plaintiff continued to live with Mrs. Kalb for thirteen years, until plaintiff's marriage, and that plaintiff performed all the duties of a daughter, entitled plaintiff to a decree establishing her adoption and giving her the rights of an adopted daughter. Kerr v. Smiley, 239 S.W. 501; McIntyre v. Hardesty, 347 Mo. 805, 149 S.W.2d 334; Ahern v. Matthews, 337 Mo. 362, 85 S.W.2d 377. (2) Plaintiff was adopted by Mrs. Kalb as her daughter. The adoption, although in parol, was in praesenti and completely executed. From that time forth the relationship of mother and adopted daughter existed and continued. The adopting parent and her privies are estopped to question such adoption and the person so relying thereon is entitled to a decree establishing such status: Holloway v. Jones, 246 S.W. 587; Horton v. Troll, 183 Mo.App. 677, 167 S.W 1081; Thomas v. Maloney, 142 Mo.App. 193, 126 S.W 522; See also: 16 A.L.R. 1016, note p. 1020, 69 A.L.R. 17. (3) Plaintiff's performance of the adoption agreement having been induced by the representations of Mrs. Kalb that the agreement was legal and valid, the situation presents a typical case for the intervention of equity to enforce the agreement. The evidence shows a mutual mistake concerning the legal sufficiency of the adoption agreement which plaintiff was induced to rely on by the representations of Mrs. Kalb in whom plaintiff placed trust and confidence, which facts present a clear case for equitable relief, even though the misrepresentation made by Mrs. Kalb was innocently done. Annotations, 142 A.L.R. 122, and 27 A.L.R. 1365, and cases cited; 30 C.J.S. 380, sec. 47. (4) The Missouri courts recognize the jurisdiction of equity to give relief where the mistake of law is mutual and induced by or taken advantage of by one of the parties. Bramhall v. Bramhall, 216 S.W. 766; Cooper County Bank v. Rank, 288 S.W. 95; Shanklin v. Ward, 291 Mo. 1; Griffith v. Townley, 69 Mo. 13. (5) The fact that plaintiff had reached the age of majority at the time of the oral adoption ceremony does not defeat her right to a decree establishing her adoption rights. Kerr v. Smiley, supra; State ex rel. Buerk v. Calhoun, 330 Mo. 1172, 52 S.W.2d 742, 83 A.L.R. 1393, note p. 1395; St. Louis Union Trust Co. v. Hill, 336 Mo. 17, 76 S.W.2d 685; Brock v. Dorman, 339 Mo. 611, 98 S.W.2d 672; Wilson v. Caulfield, 228 Mo.App. 1206; In re Moran's Estate, 151 Mo. 555, 52 S.W. 377; 2 Mo. Law Review 300. (6) The facts that plaintiff retained and used her own name, and not the name Kalb, and that she later married and left the Kalb home, do not deprive her of the adoption rights claimed. Plaintiff's rights under the adoption agreement, after plaintiff had performed her part thereof, were not forfeited by a quarrel, disagreement or estrangement between plaintiff and Mrs. Kalb (if there was such quarrel, disagreement or estrangement). Craddock v. Jackson, 223 S.W. 925; Remmers v. Remmers, 239 S.W. 509.
Daniel Bartlett and Thomas F. Muldoon for defendants in error.
(1) The character and quantum of proof required to support oral adoption is that it must be clear, cogent and convincing, free from doubt and so overwhelming in its probative force as to banish all reasonable doubt to the contrary; and then only when to do otherwise would work a palpable fraud on the other party. Benjamin v. Cronan, 338 Mo. 117, 93 S.W.2d 975; Furman v. St. Louis Union Trust Co., 338 Mo. 884, 92 S.W.2d 726; Kidd v. St. Louis Union Trust Co., 335 Mo. 1029, 74 S.W.2d 827; Niehaus v. Madden, 348 Mo. 770, 155 S.W.2d 141; Lamb v. Feehan, 276 S.W. 71; Barnett v. Clark, 252 S.W. 625; Shelp v. Mercantile Trust Co., 322 Mo. 682, 15 S.W.2d 818; Wales v. Holden, 209 Mo. 552, 108 S.W. 89. (2) Evidence of the mode and circumstances of the lives of plaintiff and decedent, their conduct and attitude toward each other, was relevant and indicated that there was no oral adoption or contract to adopt. Furman v. St. Louis Union Trust Co., supra; Kidd v. St. Louis Union Trust Co., supra; Wales v. Holden, supra. (3) The fact that Mrs. Kalb never told any of her friends, relatives, or employees, especially her minister, her counsel, and her doctor, of any adoption, is strongly persuasive that no such adoption took place or was ever promised. Kidd v. St. Louis Union Trust Co., 335 Mo. 1029, 74 S.W.2d 827; Keller v. Lewis County, 345 Mo. 536, 134 S.W.2d 48. (4) The "secrecy" enjoined by Mrs. Kalb, testified to by plaintiff's witnesses, destroys the probative force of their testimony about the declaration of a woman dead when the suit was brought. Shelp v Mercantile Trust Co., 322 Mo. 682, 15 S.W.2d 818; Furman v. St. Louis Union Trust Co., 338 Mo. 884, 92 S.W.2d 726. (5) Clara Kropp's failure to change her name to that of Kalb was a strongly persuasive circumstance against her (and not one in her favor), especially in view of the fact that no reasonable explanation therefor was given. Jenkins v. Gordon, 256 S.W. 136; Ahern v. Matthews, 337 Mo. 362, 85 S.W.2d 377; Drake v. Drake, 328 Mo. 966, 43 S.W.2d 556. (6) Testimony as to purported declarations of a dead person is generally considered unreliable evidence. Kidd v. St. Louis Union Trust Co., 335 Mo. 1029, 74 S.W.2d 827; Asbury v. Hicklin, 181 Mo. 658, 81 S.W. 390. (7) The services rendered by plaintiff to Mrs. Kalb cannot be attributed to any adoption or agreement to adopt. (8) Adoption being unknown at common law is purely statutory in Missouri. The statutes provide the only legal means of attaining the status of an adopted child. Chap. 56, Art. I, R.S. 1939; Secs. 9608-9615, R.S. 1939; Rockford v. Bailey, 322 Mo. 1155, 17 S.W.2d 941; In re McAvoy's Adoption, 173 S.W.2d 108; Drake v. Drake, 328 Mo. 966, 43 S.W.2d 556. (9) An indispensable circumstance necessary to entitle a court of equity to exercise its extraordinary prerogative to decree equitable adoption is that the child in question must have been taken at such an age that it had no will or choice of its own in the matter. Therefore being a conceded basic fact in this case that plaintiff was an adult (past her twenty-second birthday) before she met and went to work for Mrs. Kalb and, of course, before the alleged oral adoption or agreement to adopt, in 1921, no case could be made for an equitable adoption or specific performance of an agreement to adopt, even if the allegations of the petition were proven. Thompson v. Moseley, 344 Mo. 240, 125 S.W.2d 860; Chap. 56, Art. I, R.S. 1939; Secs. 9608-9615, R.S. 1939; Rockford v. Bailey, 322 Mo. 1155, 17 S.W.2d 941. (10) There is no such thing in this State as a doctrine of "parol adoption completely executed in praesenti," performed merely by the speaking of the words "I adopt," and such a theory as is advanced by plaintiff's counsel on this point cannot avoid the consequences of her adult status in 1921. Hockaday v. Lynn, 200 Mo. 456, 98 S.W. 585; Melek v. Curators of Mo. U., 213 Mo.App. 572, 250 S.W. 614; Lamb v. Feehan, 276 S.W. 71; Clarkson v. Hatton, 143 Mo. 47, 44 S.W. 761; Drake v. Drake, 328 Mo. 966, 43 S.W.2d 556; Kerr v. Smiley, 239 S.W. 501; McIntyre v. Hardesty, 347 Mo. 805, 149 S.W. 334; Ahern v. Matthews, 337 Mo. 362, 85 S.W.2d 377; Holloway v. Jones, 246 S.W. 587; Horton v. Troll, 183 Mo.App. 677, 167 S.W. 108; Thomas v. Malone, 142 Mo.App. 193, 126 S.W. 522. (11) Where, in this State, a court has intervened to decree equitable adoption in a case where a method pursued fell short of substantial compliance with the statute, it has never been on the ground of mutual mistake of law, but because by the overwhelming weight of the credible evidence, it appeared to the court beyond all reasonable doubt that the child had been taken at a tender age when it had no will or choice of its own in the matter, that thereafter it had been treated and regarded as a son or daughter, and that it had performed everything contemplated by the relation of parent and child and in reliance thereon, so that it would be a palpable fraud on the child to permit the adoptive parent or her heirs to deny such adoption. See authorities cited under Points (1) and (2) of this brief; Barnett v. Clark, 252 S.W. 625; Dillman v. Davidson, 239 S.W. 505; Beach v. Bryan, 155 Mo.App. 33, 133 S.W. 635.
Barrett, C. Westhues and Bohling, CC., concur.
By this suit in equity Clara Kropp Gamache seeks to establish that she is the adopted daughter of Laura J. Kalb, deceased. Mrs. Kalb left a will which does not mention Clara Kropp Gamache and if Clara is successful in this action she is Mrs. Kalb's sole and pretermitted heir and entitled to approximately $ 800,000.00.
The theory of her suit is that Mrs. Kalb, in the presence of witnesses on Christmas Eve 1921, orally adopted her and promised that she would be her (Mrs. Kalb's) heir, that she assented and agreed to the adoption and that they mutually promised thenceforward to treat one another as mother and daughter. Ahern v. Matthews, 337 Mo. 362 85 S.W.2d 377. She claims that for the next thirteen years and thereafter she faithfully performed all the duties of a daughter, fully complied...
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