Horton v. Troll
| Decision Date | 02 June 1914 |
| Parties | MARY HORTON et al., Respondents, v. HARRY TROLL, Public Administrator, in charge of Estate of ELIZABETH C. DUNHAM, Deceased, et al., Appellants |
| Court | Missouri Court of Appeals |
Argued and Submitted May 7, 1914.
Appeal from St. Louis City Circuit Court.--Hon. Daniel D. Fisher Judge.
AFFIRMED.
Judgment affirmed.
T. K Skinker and Henderson, Marshall & Becker for appellants.
(1) The court erred in refusing to dismiss the plaintiffs' suit because it was not lawful for Mrs. Dunham to adopt the plaintiffs, even by deed, since her husband was a non-resident of Missouri; it follows that she could not bind herself by verbal contract to adopt. Gen. Stat. 1865, p. 478 secs. 1 and 2; R. S. 1909, secs. 1671-1672. (2) The court erred in refusing to dismiss the plaintiffs' suit because, even if Mrs. Dunham made the alleged contract, it was void, since she was a married woman and did not pursue the statutes, the only method by which a married woman could, in 1876, in any case, adopt a child. Asbury v. Hicklin, 181 Mo. 658; Teats v. Flanders, 118 Mo. 660; Sharkey v. McDermott, 91 Mo. 647; R. S. 1889, sec. 6864; Gen. Stat. 1865, p. 466, secs. 1, 2; Cahoe v. Enders, 68 Mo. 224; Tatum v. St. Louis, 125 Mo. 647; Bartlett v. O'Donoghue, 72 Mo. 563; Huff v. Price, 50 Mo. 228; Sutton v. Casseleggi, 77 Mo. 397; O'Reilly v. Kluender, 193 Mo. 576; Ruesh v. Brown, 101 Mo. 586; Gwin v. Smurr, 101 Mo. 552; Sarazin v. Railroad, 153 Mo. 479; Evans v. Morris, 234 Mo. 177; Rosenwald v. Middlebrook, 188 Mo. 58; Price v. Hart, 29 Mo. 171. (3) The court erred in refusing to dismiss the plaintiffs' suit because the evidence does not show that Mrs. Dunham promised to adopt the Hudson children. Thomas v. Maloney, 142 Mo.App. 193; Lynn v. Hockaday, 162 Mo. 125; Asbury v. Hicklin, 181 Mo. 658; Teats v. Flanders, 118 Mo. 660; Peter v. Bauer, 83 Neb. 405; Walker v. Bohannon, 243 Mo. 119; Williams v. Keef, 241 Mo. 366. (4) The court erred in refusing to dismiss the plaintiffs' suit because it is barred by limitations. Healey v. Simpson, 113 Mo. 340; Gray v. Givens, 26 Mo. 291, 300; Dunnica v. Sharp, 7 Mo. 71; Schade v. Gehner, 133 Mo. 252; Gross v. Keirski, 41 Cal. 111; Sharkey v. McDermott, 91 Mo. 647. (5) The court erred in refusing to dismiss the plaintiffs' suit because the plaintiffs were guilty of laches. McKee v. Downing, 224 Mo. 115, 144; Dexter v. MacDonald, 196 Mo. 373; Burdett v. May, 100 Mo. 13; Lea v. Polk, 21 How. 494; State v. West, 68 Mo. 229; Lenox v. Harrison, 88 Mo. 491; 25 Cyc., p. 1074; Morris v. Parry, 110 Mo.App. 675.
Muench, Walther & Muench for respondents.
(1) Oral adoptions are very generally enforced in this State and elsewhere on the theory that they are valid contracts which, having been fully performed on one side, will be enforced against the estate and the heirs of the adopting parents on the other, equity treating that which should have been done to make the adoption regular in law as having, in fact, been done, in order to avoid a palpable injustice to the adopted children. Thomas v. Maloney, 142 Mo.App. 193; Novack v. Berger, 133 Mo. 24; Healey v. Simpson, 113 Mo. 340; Lynn v. Hockaday, 162 Mo. 111; Hockaday v. Lynn, 200 Mo. 464; Sharkey v. McDermott, 91 Mo. 647; Chehack v. Battles, 8 L.R.A. 1130; Van Tyne v. Van Tyne, 1 L.R.A. 155; Wales v. Holden, 209 Mo. 552; Sarazin v. Railroad, 153 Mo. 486. (2) The surrender by the father of all control over the respondents, and the receipt by Doctor and Mrs. Dunham of their services, companionship and filial affection constituted valuable considerations for the agreement to adopt. Cases cited under Point I. (3) By surrendering his daughters and by their remaining with the foster parents until their majority, the contract was fully performed on the part of the father and the children and the contract was taken out of the provisions of the statute requiring a formal deed. Cases cited under Point I. (4) Adopted children become and are, for all the purposes of inheriting from the adopting parents, the lawful children of such adopting parents. Gen. Stat. 1865, p. 478, sec. 3; R. S. 1909, sec. 1673; Moran v. Stewart, 122 Mo. 295; Moran v. Stewart, 132 Mo. 73; Hockaday v. Lynn, 200 Mo. 464; Thomas v. Maloney, 142 Mo.App. 198; Fosburgh v. Rogers, 114 Mo. 133; Westerman v. Schmidt, 80 Mo.App. 348; Bray v. Miles, 23 Ind.App. 432. (5) The language of section 1671, R. S. 1909, and the corresponding sections in earlier statutes to the effect that "if any person in this State shall desire to adopt any child, etc.," cannot be construed to mean that the benefits of the act shall be confined to legal residents of the State. It is sufficient if the adopting parent has a place of residence here. R. S. 1909, sec. 1671; Gen. Stat. 1865, p. 478, sec. 1. Even if this should be held to be true, however, the evidence fails to show that Doctor Dunham ever went to Florida with the intent to change his domicile, which is one of the two elements essential to effect a change of the legal residence which he was shown to have established in St. Louis prior to the adoption. State ex rel. v. Shepherd, 218 Mo. 656; Humphrey v. Humphrey, 115 Mo.App. 361; Hall v. Schoenecke, 128 Mo. 661; Stevens v. Larwill, 110 Mo.App. 140; Hamill v. Talbot, 81 Mo.App. 215; Newton v. Commissioners, 100 U.S. 548; (6) Since a married woman, in 1876, had the right to enter into a joint adoption agreement in writing with her husband, by joining in the deed of adoption, and since equity, in enforcing an oral agreement for adoption, where performance on one side is shown, will treat that as having been done which should have been done, the court, in determining the rights of adopted children, where a joint oral contract is shown, will presume the execution of a deed joined in by both adoptive parents and binding on the estates of both. Thomas v. Maloney, supra; Healey v. Simpson, supra; Lynn v. Hockaday, supra; Sarazin v. Railroad, surpa. (7) Mrs. Dunham's connection with the original adoption agreement having been shown, her later statements that there had been no legal adoption are mere self-serving declarations and incompetent to disprove the adoption on her part. Lynn v. Hockaday, 162 Mo. 120. (8) As courts will not lend their aid merely to the establishment of a social status, unconnected with a material benefit, a cause of action of which a court could take cognizance arose in favor of respondents only upon the death of Mrs. Dunham, to enforce against her estate the rights growing out of their status as children as established and continuing until her death, by virtue of the adoption; consequenty this suit, brought in due time after Mrs. Dunham's death, is neither barred by limitation nor stale in equity by reason of laches on the respondents' part. Cases cited under Point I; Beach v. Ryan, 155 Mo.App. 49; State v. Odd Fellows, 8 Mo.App. 153; Froehlich v. Musicians' Mutual Benef. Assn., 93 Mo.App. 390.
The plaintiffs instituted this suit in equity on December 21 1909, in the circuit court of the city of St. Louis, setting up in their petition that they were the only children of one Thomas Hudson, formerly a resident of that city; that in the year 1876, Lavinus Dunham and Elizabeth Dunham, his wife, having no children of their own, entered into an agreement and contract with Thomas Hudson, the father of plaintiffs, that he should surrender the custody and care of plaintiffs, his four daughters, aged at that time respectively, seven, ten, eleven and twelve years, to Lavinus and Elizabeth C. Dunham, and permit them to adopt plaintiffs as their children, and that the Dunhams should adopt plaintiffs as their own children and legal heirs; that this agreement was fully performed by Thomas Hudson, the father, by his immediately surrendering to the Dunhams the care, custody and control of plaintiffs, his minor children; that the agreement was fully performed by plaintiffs on their part, in that they immediately went to live in the household of the Dunhams and remained in the household until they respectively became of age or self-supporting; that they took the name of their adopted parents as their own surname and continued to bear it until after they had become of age and self-supporting, when they resumed the name of Hudson with the approval of the Dunhams; that they addressed the Dunhams as father and mother, respectively, and rendered to them the obedience, affection and services, and discharged all of the duties owed and rendered to parents by children. They further aver that the agreement of adoption was performed by the Dunhams in this: That they immediately assumed the care, custody and control of plaintiffs and maintained and exercised the same during the respective minorities of plaintiffs; that they gave the children, plaintiffs here, the name of Dunham, addressed the children and introduced them to their relatives and others as their daughters, taught them, as children, to regard and address them as father and mother; gave to them the support, care and affection of parents and exacted and received from them the obedience and service of children. It is also averred that the adoption agreement, though fully performed by plaintiffs and their father and partially performed by the Dunhams, was not fully performed in this: That the Dunhams failed and neglected to evidence the adoption by deed duly executed, acknowledged and recorded in the manner prescribed by the statutes of this State. It is further averred that Lavinus Dunham died August 6, 1891, leaving a will, duly probated, by which he bequeathed one dollar to each of the plaintiffs as his adopted daughters, and the residue of his estate to his wife, Elizabeth...
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