Jenkins v. Gordon

• Decision Date: 03 December 1923
• Docket Number: No. 14877.,14877.
• Parties: JENKINS v. GORDON et al.
• Court: Missouri Court of Appeals

256 S.W. 136

JENKINS v. GORDON et al.

No. 14877.

Kansas City Court of Appeals. Missouri.

December 3, 1923.

Appeal from Circuit Court, Saline County; R. M. Reynolds, Judge.

"Not to be officially published."

Suit by Pearl Jenkins against William C. Gordon, administrator of the estate of Elvira Caldwell, deceased, and others. Judgment for plaintiff, and defendants appeal. Affirmed.

Harvey & Bellamy, of Marshall, for appellants.

Alf. Rector and W. H. Meschede, both of Marshall, for respondent.

BLAND, J.

This is a suit in equity for the specific performance of an oral contract made between Wesley Bogard, the father of plaintiff, and one Elvira Caldwell, wherein she agreed and promised to adopt plaintiff, a child then 9 years of age, and make her her heir. There was a decree in favor of plaintiff and defendants have appealed. Defendants are the heirs of deceased, who died intestate on June 15, 1920. She left no child. Her husband and one brother survived her. The husband and brother died after the filing of this suit, and it was revived against their administrator and the heirs. The contract of adoption was made in the fall of 1891. Plaintiff's mother died the preceding March, leaving three small children, the oldest being 14 and plaintiff, the youngest, being 8 or 9 years of age. The father, being a man of small means, was unable to provide a home where the children could be properly looked after, so that they were placed in the homes of neighbors. The deceased, Elvira Caldwell, and her, husband had seen the plaintiff at the mother's funeral, and were impressed with plaintiff. There were no children of the Caldwell marriage.

Mrs. McBride, a cousin of plaintiff, testified that in the fall of 1891 Mr. and Mrs. Caldwell came to her father's house in Saline county to see plaintiff's father about adopting plaintiff. The father was working in the neighborhood, and on being sent for came to the house along with plaintiff. Mrs. Caldwell made known her mission, and stated that she "wanted the child to raise as her own, not one she could get attached to and then when she got old enough to be a housekeeper for her that her father would take her away; that she wanted her as her own to raise and educate, and that she would adopt her and leave her her property." The witness further testified that "Mr. Caldwell was present and he agreed to it"; that "he [Bogard] said that they could." Soon after the Caldwells took the plaintiff away to their home, where she remained until she reached maturity and was married. On cross-examination the witness testified.

That it had been 30 years since she heard the conversation, and she could not remember "just the exact conversation; I remember the circumstances and all, and I remember that is what she said. Q. Would you attempt to state that the words you have given were the words used in that conversation ? A. Yes, sir. Of course, I could not say how much more, but there was that much, and that was the proposition he made to her, and that she was willing."

Mrs. McBride was recalled for further cross-examination, and at this time stated the conversation had between Mrs. Caldwell and Bogard was as follows:

"She [Mrs. Caldwell] said they wanted to adopt her; that we want a child to take to raise and to keep her and raise her as their own, and they didn't want to take her for a while and give her up. Mrs. Caldwell said she would make her her heir and deed her her property; that Bogard replied that they could have her as their own and adopt her and raise her as their own, and he wouldn't come in and dictate to them."

Her attention was called to the fact that when she was formerly on the stand she did not state what Bogard had said in the manner in which she did when recalled. She then stated that she had been confused when formerly on the stand; that she forgot to state all that Bogard said. The record shows that defendants' counsel had been objecting to the form in which the witness had answered questions as to what Bogard had said, and the court had just admonished the witness as to how she should testify. This occurred just before the witness testified, "Well, he said they could." The answer itself suggests its own incompleteness, and the witness may have been confused, as she says.

Mrs. Zimmermann testified that she was a half-sister of Mrs. McBride, but no blood relation of plaintiff; that she was present at the time it was alleged the agreement to adopt was entered into. At that time she was 11 or 12 years of age. She testified that Mrs. Caldwell said:

"She wanted Pearl [the plaintiff] provided she could have her for her own child but she didn't want to take her and then have to give her up in later years as she grew older and was good to them"; "that she wanted her as her own child"; "that she meant that she would be her heir at her death."

Bogard agreed to the proposal. On crossexamination she testified:

"I could not tell just the exact words, only that everything was pertinent to adopting the child."

She didn't seem to remember any material occurrence except that she understood that the child was to be adopted. The witness remembered the general statement that Mrs. Caldwell made "that she didn't want to give plaintiff up when she got old enough to be of help."

Mrs. Blalock testified that she was the wife of a minister who lived in the vicinity of the Caldwells; that she moved to Saline county in 1901 and lived there until 1907; that Mrs. Caldwell told her that she had adopted plaintiff and considered her her heir, and that she intended to make her her heir; that they talked over the matter a number of times; that plaintiff was treated as a daughter in the household; that Mrs. Caldwell told her that she had no child of her own and had no one to leave her property to, and wanted plaintiff to be her heir; that plaintiff was very attentive to both the Caldwells, "and more dutiful than most daughters are"; that both had stated to her "that plaintiff had been to them more than a daughter in many cases." When plaintiff was grown she married, and had a child, born in 1905. Mrs. Blalock further testified that at the direction of Mrs. Caldwell she wrote in the Caldwell family bible a record of the baby's birth as being a grandson of the Caldwells; that Mrs. Caldwell directed her to make this entry immediately under the record of Pearl's (plaintiff) adoption, because plaintiff was her daughter; that Mrs. Caldwell told plaintiff that her husband had sufficient property with which to take care of his relatives, and that when she died she wanted her property to go to plaintiff, and that plaintiff should look after her brother and his wife, who were old people, and after their death plaintiff should have all of her property.

The witness further testified: That in 1917 she lived in California. At that time Mrs. Caldwell wrote her to return; that she wanted to fix up papers in favor of plaintiff. That at that time Mrs. Caldwell was about 70 years of age. The witness came to Missouri and visited several places and finally went to Marshall and saw Mrs. Caldwell. That Mrs. Caldwell said to her that she had made out adoption papers in favor of plaintiff, but thought they had not been recorded. That they looked through Mrs. Caidwell's papers, but failed to find them. That they went to Mr. Dean Duggan, an attorney, since deceased, to find out if plaintiff's adoption papers had ever been recorded. That Mr. Duggan looked up the records, and discovered that the...