Horton v. Troll

• Decision Date: 02 June 1914
• Docket Number: No. 13385.,13385.
• Citation: 167 S.W. 1081,183 Mo. App. 677
• Parties: HORTON et al. v. TROLL et al.
• Court: Missouri Court of Appeals

167 S.W. 1081

183 Mo. A. 677

HORTON et al. v. TROLL et al.

No. 13385.

St. Louis Court of Appeals. Missouri.

June 2, 1914.

1. HUSBAND AND WIFE (§ 89)—COMPETENCY OF MARRIED WOMEN — STATUTORY PROVISIONS — ADOPTION AGREEMENT — RATIFICATION.

Under Rev. St. 1909, § 8304, authorizing a married woman to contract as a feme sole, a married woman may ratify an adoption made by her before the passage of the statute in 1889.

2. HUSBAND AND WIFE (§ 89)—DISABILITY OF COVERTURE—RATIFICATION.

Ratification after removal of disability of coverture is valid.

3. ADOPTION (§ 8)—EVIDENCE—SUFFICIENCY.

Adoption may be established by acts and conduct, where no legal deed of adoption has been executed and recorded in due form of law.

4. ADOPTION (§ 20) — RIGHT OF ADOPTED CHILDREN.

One who adopts children without contracting to leave anything to them may by will dispose of the bulk of his estate to others, leaving only a nominal sum to each child.

5. ADOPTION (§ 21) — RIGHT OF ADOPTED CHILDREN.

Where husband and wife adopted children, and the husband died, leaving the bulk of his estate to the wife, who subsequently died intestate, the adopted children took as her heirs.

6. ADOPTION (§ 21) — RIGHT OF ADOPTED CHILDREN—ENFORCEMENT—LACHES.

Where a husband and wife adopted children, and the husband died testate, leaving the bulk of his property to his wife, who died intestate, the right of the children to sue as heirs did not accrue until the death of the wife, and an action about 2½ years after the death of the wife was not barred by laches.

7. ADOPTION (§ 21) — RIGHT OF ADOPTED CHILDREN—ACTIONS.

Where a husband and wife adopted children, and the husband died testate, leaving the bulk of his estate to his wife, who died intestate, the natural father, having no reason to question the fact of adoption, established by acts and conduct, could not maintain an action on behalf of the children to enforce their rights until the death of the wife, for it could not be determined until then whether the adoption had been repudiated or recognized.

8. ADOPTION (§ 10) — ENFORCEMENT OF RIGHTS OF ADOPTED CHILDREN—COURTS— JURISDICTION.

The circuit court has jurisdiction of a suit in equity to establish a legal adoption pending administration in the probate court of the estate of decedent alleged to have adopted children by acts and conduct.

Appeal from St. Louis Circuit Court; Daniel D. Fisher, Judge.

Action by Mary Horton and another, against Harry Troll, public administrator, as administrator of Elizabeth C. Dunham, deceased, and others. From a judgment for plaintiffs, defendants appeal. Affirmed.

Henderson, Marshall & Becker, T. K. Skinker, and Charles L. Moss, all of St. Louis, for appellants. Nagel & Kirby, Julius T. Muench, and Muench, Walther & Muench, all of St. Louis, for respondents.

REYNOLDS, P. J.

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 $1.00 to each of the plaintiffs as his adopted daughters, and the residue of his estate to his wife, Elizabeth C. Dunham; that the latter remained a widow and died intestate in the city of St. Louis on August 22, 1907, leaving an estate consisting of personal property of the value of about $26,000; that the defendant Harry Troll, then and now the duly qualified and acting public administrator within and for the city of St. Louis, on September 3, 1907, took charge of the estate of Elizabeth C. Dunham, deceased, and is now the administrator of said estate and as such in possession and control of the property belonging to the estate, which is within the city of St. Louis and within the jurisdiction of the circuit court. It is further averred that Elizabeth C. Dunham died without issue and that the other defendants, outside of the public administrator and defendant Aitken, are the nephews and nieces, respectively, of Lavinus Dunham, the husband of Elizabeth C. Dunham, deceased, and that the defendant Aitken claims to be a cousin of Elizabeth C. Dunham, and that excepting plaintiffs, these defendants, exclusive of the public administrator, are the next of kin to Elizabeth C. Dunham and the only persons who would be entitled to share in her estate. Averring that they have no adequate remedy at law for the performance and enforcement of the contract and agreement of adoption, or for the protection of their rights as the adopted children of Elizabeth C. Dunham in the assets of her estate, plaintiffs pray the court by its decree specifically to enforce the contract of adoption and declare and establish plaintiffs as the children and lawful heirs of Elizabeth C. Dunham, and as such entitled to the assets of her estate upon distribution and for such other and further relief as to the court may seem meet and just.

Defendant Troll, as public administrator, admitting that he is in charge of the estate as such, avers that the estate is in process of administration by him as such public administrator under the direction of the Probate Court of the city of St. Louis; that no final settlement thereof has been made by him; that at the time of filing the answer and until after final settlement has been made, he is not liable or subject to the action of plaintiffs herein for distribution of the assets thereof, and is at all times liable and subject only to the orders and judgment of the Probate Court of the city of St. Louis, in the exercise of its provisional jurisdiction in respect to the jurisdiction and distribution of the property of the estate held by him as administrator. Denying all knowledge or information on which to found a belief as to the averments of the petition, other than those averments alleging him to be in charge of the estate as public administrator, and demanding strict proof thereof, the administrator denies plaintiffs are entitled to the relief asked or to any decree whatever as against him and prays that he may be dismissed with his costs.

Defendant Aitken answered by general denial.

The other defendants, admitting that defendant Troll, as public administrator, is in charge of the estate and now acting as administrator thereof, and that it is now in the course of administration in the Probate Court, and admitting that plaintiffs were children of Thomas Hudson, and averring that at the times mentioned Hudson had no wife living and was a man without means and wholly unable to care for or provide for his children, and that they were in destitute circumstances and in need of care, education and support, avers that in the year 1876, the Dunhams, being in comfortable circumstances, out of charity and in order to relieve the wretchedness of plaintiffs, took them to live in their household and for years thereafter, at their own expense, housed, fed, clothed, trained and educated them, but that Elizabeth C. Dunham never adopted plaintiffs or promised or agreed to adopt them as her children. They further aver that plaintiffs, after having lived for about ten years in the household and at the sole expense of the Dunhams, about the year 1886, voluntarily abandoned the home of the Dunhams and resumed their residence with their father, and that for at least 23 years before the death of Elizabeth C. Dunham, plaintiffs never lived with her or recognized her as having any right or interest in them or control over them, or any of them, but for that period of time they lived and were as total strangers to Elizabeth C. Dunham. They further...