Goldberg v. Robertson, 62253

• Decision Date: 11 May 1981
• Docket Number: No. 62253,62253
• Citation: 615 S.W.2d 59
• Parties: Gerald H. GOLDBERG, Director of Revenue, State of Missouri, Appellant, v. M. H. ROBERTSON, Executrix, Respondent. In the ESTATE OF Ella Mae SHULL, Deceased.
• Court: Missouri Supreme Court

Page 59

615 S.W.2d 59

Gerald H. GOLDBERG, Director of Revenue, State of Missouri, Appellant, v. M. H. ROBERTSON, Executrix, Respondent In the ESTATE OF Ella Mae SHULL, Deceased.

No. 62253.

Supreme Court of Missouri, En Banc.

May 11, 1981.

John Ashcroft, Atty. Gen., Richard L. Wieler, Asst. Atty. Gen., Jefferson City, for appellant.

Joe W. Coleman, Lawrence J. Skidmore, Kansas City, for respondent.

WELLIVER, Judge.

The Director of Revenue appeals from a judgment of the probate division of the circuit court decreeing that Donna Luccia Furman's distributive share of the estate of Ella Mae Shull should be taxed at the rate of one percent pursuant to § 145.060.1(1), RSMo 1978, rather than at the rate of five percent as provided in § 145.060.1(5), RSMo 1978. In so holding, the court found that the phrase "legally adopted child" as used in § 145.060.1(1) embraced Donna Luccia Furman, who had been decreed to be equitably adopted in proceedings in the estate of Lee Vade Shull, pre-deceased husband of the deceased, Ella Mae Shull. The sole issue in this case is whether an equitably adopted child is a "legally adopted child" within the meaning of § 145.060.1(1), RSMo 1978. This Court has jurisdiction to hear this appeal, because it involves the construction of a revenue law of this state. Mo.Const. art. V, § 3. We reverse the judgment of the circuit court.

On October 30 or 31, 1944, Betty Titus gave birth to Donna Luccia Titus. Donna Luccia was placed in the care of Lee Vade Shull and Ella Mae Shull by her natural mother when she was approximately two months old. When Donna Luccia was approximately three years old, Mr. and Mrs. Shull attempted to adopt her. The adoption proceedings were never completed, because Betty Titus refused to relinquish her parental rights over Donna Luccia. Donna Luccia was never adopted by Mr. or Mrs. Shull in accordance with the statutes authorizing adoption in this state. However, Donna Luccia changed her surname from Titus to Shull and lived with Mr. and Mrs. Shull until her first marriage to Ronnie Anderson. Subsequently, she changed her surname from Anderson to Furman.

On November 13, 1974, Lee Vade Shull died. On January 26, 1979, the probate division of the circuit court in an adversary proceeding, decreed that Donna Luccia Furman was the equitably adopted child of Lee Vade Shull.

On February 4, 1978, Ella Mae Shull died. Prior to her death she executed a will naming Mrs. Furman a devisee and legatee of certain property. On February 14, 1979, a second amended application for letters testamentary was filed listing Mrs. Furman as the daughter of Mrs. Shull. On January 7, 1980, a corrected appraiser's report was filed wherein the inheritance tax was calculated against Mrs. Furman as if she were the daughter of Mrs. Shull, and the circuit court assessed the tax due in accordance with the appraiser's report. The Director of Revenue filed exceptions to the appraiser's report, objecting to Mrs. Furman being treated as Mrs. Shull's daughter on the basis of an equitable adoption. By stipulation, the parties agree that Mrs. Furman is the equitably adopted child of Ella Mae Shull, and that the sole legal issue in this case is whether an equitably adopted child is a "legally adopted child" within the meaning of § 145.060.1(1), RSMo 1978.

In In the Matter of Estate of Van Cleave, 610 S.W.2d 620, 621 (Mo. banc 1981), we expressly reserved for future determination the issue now before us. Section 145.060.1(1), RSMo 1978, ¹ states:

1. When property, or any beneficial interest therein or income therefrom passes by any such transfer where the amount of property, interest or income shall exceed in value the exemption herein specified and shall not exceed in value twenty thousand dollars, the tax hereby imposed shall be as follows:

(1) One percent. Where the person or persons to whom such property or any beneficial interest therein passes, shall be the husband, wife, lineal descendant, or any lineal ancestor of the decedent, or any legally adopted child or any lineal descendant of such adopted child, or child born out of lawful wedlock, at the rate of one percent of the clear market value of such property or interest therein; ...

(Emphasis added.) In order to ascertain whether an equitably adopted child is a "legally adopted child" as those words were intended to be used by the General Assembly, we must first examine the historical development and nature of equitable adoption in this state.

Although adoption was known to many of the ancient peoples of the world, see Hockaday v. Lynn, 200 Mo. 456, 461-64, 98 S.W. 585, 585-86 (1906), adoption was not a part of the English common law at the time Missouri, by statute, made the common law of England a part of Missouri law. In re Novak, 536 S.W.2d 33, 35 (Mo. banc 1976); Menees v. Cowgill, 359 Mo. 697, 705, 223 S.W.2d 412, 415 (1949), cert. denied, 338 U.S. 949, 70 S.Ct. 488, 94 L.Ed. 585 (1950); Niehaus v. Madden, 348 Mo. 770, 777, 155 S.W.2d 141, 144 (1941); Hockaday v. Lynn, 200 Mo. 456, 461, 98 S.W. 585, 585 (1906); State ex rel. Bolshaw v. Montgomery, 237 Mo.App. 678, 683, 146 S.W.2d 129, 131 (1940). See § 1.010, RSMo 1978. Adoption is purely a creature of statute in Missouri. Long v. Willey, 391 S.W.2d 301, 304 (Mo.1965); Menees v. Cowgill, 359 Mo. 697, 705, 223 S.W.2d 412, 415-16 (1949), cert. denied, 338 U.S. 949, 70 S.Ct. 488, 94 L.Ed. 585 (1950); Niehaus v. Madden, 348 Mo. 770, 777, 155 S.W.2d 141, 144 (1941). See ch. 453, RSMo 1978. The first Missouri statute authorizing adoption was enacted in 1857. Laws of Mo.1857, p. 59. That statute authorized the adoption of children by deed. Drake v. Drake, 328 Mo. 966, 971, 43 S.W.2d 556, 558 (banc 1931). In 1917, the Forty-ninth General Assembly abolished the right to adopt children by deed or private agreement and vested exclusive jurisdiction over the adoption of children in the juvenile division of the circuit court. S.B. 313, Laws of Mo.1917, p. 193. See Long v. Willey, 391 S.W.2d 301, 304 (Mo.1965). It is of special significance in this case that the same General Assembly that restricted the availability of adoptions by granting the juvenile court exclusive jurisdiction over adoption cases through S.B. 313, also created the inheritance tax section which is here in question by passage of C.S.H.B. 638, Laws of Mo.1917, p. 114. In section 3 of this new inheritance tax law, the Forty-ninth General Assembly provided that a "legally adopted child" of the decedent would be taxed at the rate of one percent on his or her inheritance.

It has been held by this Court that the enactment of adoption statutes by the General Assembly did not oust a court of equity from its jurisdiction to declare the existence of an equitable adoption. Drake v. Drake, 328 Mo. 966, 972, 43 S.W.2d 556, 559 (banc 1931). The theoretical underpinnings of the equitable adoption doctrine are, alternatively, the specific performance of a contract to adopt or an equitable estoppel to deny that an adoption agreed to has been made. In the Matter of the Estate of Van Cleave, 610 S.W.2d 620, 622 (Mo. banc 1981); Menees v.Cowgill, 359 Mo. 697, 706, 223 S.W.2d 412, 416 (1949), cert. denied, 338 U.S. 949, 70 S.Ct. 488, 94 L.Ed. 585 (1950); Mize v. Sims, 516 S.W.2d 561, 564 (Mo.App.1974). In Thompson v. Moseley, 344 Mo. 240, 125 S.W.2d 860 (1939), this Court stated that the basis of the equitable adoption doctrine:

has been recognized to be that it is so inequitable and unjust to allow one to fail to comply with an agreement made with the parent or custodian of a child to adopt it, when he has taken the child at such an age that it had no will or choice of its own in the matter, that, after the child has performed everything contemplated by the relation provided for, the intended adoptive parent or his heirs will be estopped to deny an adoption.

344 Mo. at 245, 125 S.W.2d at 862.

Consistent with this justification for the existence of equitable adoptions, this Court has carefully circumscribed the breadth of the equitable adoption doctrine. Equitable adoptions are to be declared "only where justice, equity and good faith require it." Hogane v. Otterbach, 269 S.W.2d 9, 11 (Mo.1954); Rich v. Baer, 361 Mo. 1048, 1056, 238 S.W.2d 408, 411 (1951). The proponent of an equitable adoption has the "burden of producing evidence so clear, cogent and convincing as to leave no reasonable doubt in the chancellor's mind." In the Matter of Van Cleave, 610 S.W.2d 620, 622 (Mo. banc 1981). See Hogane v. Otterbach, 269 S.W.2d 9, 11 (Mo.1954), Rich v. Baer, 361 Mo. 1048, 1056, 238 S.W.2d 408, 411 (1951); Keller v. Lewis County, 345 Mo. 536, 542, 134 S.W.2d 48, 51 (1939). There can be no equitable adoption of a person who is an adult at the time the agreement to adopt is entered into. Thompson v. Mosely, 344 Mo. 240, 245, 125 S.W.2d 860, 862 (1939). An equitably adopted child is not an heir of the collateral kin of the equitably adopted parent. Menees v. Cowgill, 359 Mo. 697, 707-08, 223 S.W.2d 412, 418 (1949), cert. denied, 338 U.S. 949, 70 S.Ct. 488, 94 L.Ed. 585 (1950). This Court has stated that:

the declaration of the adoptee as an heir is as far as a court of equity should ever go in enforcing a contract to adopt when the failure to perform includes the failure to obtain the authority of the juvenile court for the adoption.

Long v. Willey, 391 S.W.2d 301, 304 (Mo.1956). See State ex rel. Bolshaw v. Montgomery, 237 Mo.App. 678, 683, 146 S.W.2d 129, 132 (1940).

This Court also has stated in discussing the effect of the Menees case that:

a legal or statutory adoption, binding on all persons in accord with the statutory provisions, differs from an equitable adoption, which is based upon contract for the...