Johnson v. Antry

• Decision Date: 09 April 1928
• Docket Number: No. 26658.,26658.
• Citation: Johnson v. Antry, 5 S.W.2d 405 (Mo. 1928)
• Parties: JOHNSON v. ANTRY et al.
• Court: Missouri Supreme Court

5 S.W.2d 405

JOHNSON v. ANTRY et al.

No. 26658.

Supreme Court of Missouri, Division No. 2.

April 9, 1928.

Appeal from Circuit Court, Macon County; V. L. Drain, Judge.

Suit by Charles P. Johnson against Elizabeth J. Antry and others. Judgment for plaintiff, and defendants appeal. Affirmed.

Matthews & Jones and C. G. Buster, all of Macon, and J. V. Goodson, of Kansas City, for appellants.

Ben Franklin & Son, of Macon, for respondent.

DAVIS, C.

This is a suit by plaintiff for the specific performance of an alleged oral contract made by and between Frank B. Antry, now deceased, and plaintiff's father, wherein said Antry agreed to adopt plaintiff as his son, and, when substantiated, to enforce his rights as an adopted son in decedent's estate. From a judgment below in favor of plaintiff, defendants appeal.

The testimony adduced on plaintiff's part warrants the finding that plaintiff, born in 1878, is the son of William H. and Lillie Dowling Johnson. Shortly before plaintiff's mother died, she returned to the home of her sister in Macon county in the last stages of consumption, dying about three weeks after her arrival. Plaintiff was then more than a year old. Plaintiff's father arrived a day or so before his wife's death. Immediately thereafter the question of the care of the boy arose for consideration. An arrangement as to his status and care was made between Frank B. and Eliza J. Antry, husband and wife, and plaintiff's father. His father departed shortly thereafter, returning again in 1882 for a short period and then departing. It was said that he died in the South. Mrs. Antry at the time of the trial, as shown by the most cogent evidence, was over 80 years of age. She was the sister of plaintiff's mother. She stated that an instrument of some nature regarding the boy was drawn. She further stated that Mr. Antry came in and said, "Eliza, what are you going to do with the boy? What will we do with the boy?" and she replied, "Do as you please, Frank; whatever you want to do." Frank came back and said, "They have drawed up the contract. Well; he says they both give him to us to keep to raise." There were three or four men in the room at the time, and Frank said, "I have signed the contract." Mrs. Antry stated that she never signed it. After plaintiff's mother was buried, Mr. Antry said, "I gave it to Mr. Vernam." She further stated that she and Mr. Antry promised to adopt the boy, and that they did adopt him, and that both of them treated him as their own boy and so considered him. They had no other children. Plaintiff always went by the name of Charley Antry, and Mr. Antry so introduced him, always speaking of him as his son. Mr. and Mrs. Antry reared him and sent him to school as their own child. Plaintiff called them "Ma" and "Pa," being known in school as Charley Antry. He thought they were his own parents until he came home one afternoon, when about 8 years of age, crying, and said, "Mama, they told me Papa wasn't my pa;" upon which Mr. Antry pacified him, telling him that he was his pa and Mrs. Antry his ma. Mr. and Mrs. Antry refused to let him know that he was not their boy. He found it out from others. He worked just like other boys, and was always good, treating his adopted parents kindly. Mr. Antry was never cross with him, there being an affectionate feeling between them.

Up to the time plaintiff married, he lived with his adopted parents on the farm, working it for them. His status was that of a son of the household. After his marriage he maintained his own home, but his connection with his adopted parents never ceased. Mr. Antry died in 1919. He was ill for about two years, during which time plaintiff attended him, at times quitting his own work for that purpose. During his last illness plaintiff helped around the house, slept there on a couch at night, and fixed the fire. Sometimes he rested at night, but was about the house most of the time. His wife and two boys were also present. Plaintiff treated Mr. Antry during his last sickness like a father. Plaintiff's oldest boy was named for Mr. Antry, and when he was born Mr. Antry came from Colorado to see him. Mrs. Antry stated that her feelings and affection toward plaintiff are kinder than to any one else since her husband has gone; that both of them treated plaintiff as their own boy and so considered him.

Witness London testified that he was a farmer and a licensed attorney. He stated that he had drawn hundreds of different instruments, but did not think that he ever charged a fee for anything. More than once he discussed with Mr. and Mrs. Antry the relationship existing between them and plaintiff. When plaintiff was 10 or 11 years of age, witness advised that Mr. Antry come to his office in Macon to prepare the necessary adoption papers. Witness drew an article attempting to set out their purposes toward the boy. It was not a formal deed of adoption, but the purpose of it was to adopt the boy. He delivered it to Mr. and Mrs. Antry. It was simply a statement of the general purpose to make this boy his heir, and Mr. Antry wanted him to draw an instrument that would effectuate that purpose. He talked with Antry frequently concerning the matter, who wanted an instrument prepared showing that plaintiff was the residuary heir of both of them, and to the best of his ability he prepared that kind of an instrument. Antry told him at that time that he and his wife had agreed to adopt the boy, or it was their desire to do so. His recollection was that the instrument was signed in his office by both Mr. and Mrs. Antry.

Other witnesses testified that plaintiff was known and called Charley Antry at school; that he called Mr. Antry "Dad," and Mrs. Antry "Mom." They testified that Mr. Antry said, speaking of his home place, that he and his wife were going to live off of it as long as they lived, and then Charley was to have the rest. Plaintiff remained with his adopted parents, being reared, educated, and clothed by them, and returning to them the kindness and affection of a son. Plaintiff was married under the name of Johnson with Mr. Antry's knowledge and consent. Mr. and Mrs. Antry called the plaintiff Charley and often "Son."

Defendants' evidence tends to show that both Mr. and Mrs. Antry stated at times that they had never adopted plaintiff. It appears from the testimony of Mrs. Hughes that, when she was about 13 years of age, her father, John A. Vernam, brought home a certain writing and placed it in the drawer of a cupboard reserved for papers. She saw this paper frequently, examining it out of curiosity. After her mother's death her father moved, and she and her husband took charge of the home. This paper was in the cupboard at the time, written on a piece of foolscap in blue ink. It later disappeared and she did not know what became of it. Her recollection at the time of the trial many years subsequent is that it read:

"Mr. and Mrs. Frank B. Antry agree to take Charles P. Johnson and feed, clothe and educate him until he is twenty-one years of age, and then give him a horse, bridle and saddle."

It was signed "John A. Vernam, Thomas Quinn, and John Freeman," who appear from the testimony to be witnesses. All were dead. She stated that she could not say whether they signed it or that a single name on the paper was in fact signed by the parties whose names appeared there, or whether Frank Antry ever saw the paper or not.

Mr. Hughes testified that he did not read the paper, but that it was read to him by his wife, and that all he observed of it was that it was written in blue ink. He could not say who signed the paper, for he did not know.

It was further shown that Mr. Antry made statements similar to the terms of the missing paper to one or two others in the presence of plaintiff, and that plaintiff made no statement relative thereto. Other pertinent facts, if any, will appear in the opinion.

I. This is a suit in equity and consequently triable here de novo, for this court, irrespective of the finding of fact by the trial court, must in accordance with equitable procedure determine the facts. Schwartzman v. London & Lancashire Fire Ins. Co. (Mo. Sup.) 2 S. W. (2d) 593.

II. The record develops that Frank B. Antry left a will duly probated after his death, mentioning his wife as the sole beneficiary therein, but leaving her a life estate only in his property. It results that, as to the remainder estate, he died intestate. The question then arises as to whether plaintiff as an adopted son or defendants as collateral heirs inherit the remainder estate.

Defendants contend that a parole agreement to adopt a child is within the statute of frauds, but that question has been ruled against defendants' contention from the case of Lynn v. Hockaday, 162 Mo. 111, 61 S. W. 885, 85 Am. St. Rep. 480, to recent cases on that subject, on the ground that the law will not allow the mere failure of one party to do his duty to work an irreparable wrong to one who has fully performed on his part. Here the probative evidence develops that the agreement on the part of Mr. and Mrs. Antry to adopt plaintiff inured to his benefit as well as to their benefit, and, the agreement having been fully performed by all the parties, the statute of frauds becomes inapplicable and of no force. Fishback v. Prock, 311 Mo. 494, 279 S. W. 38.

III. Defendants raise the point that the evidence in this case does not meet the test of clearness and conviction required by our courts, resulting that the burden of proof is upon plaintiff to establish an agreement to adopt on the part of Mr. Antry by such cogent and convincing evidence as to exclude every other reasonable theory or explanation of his acts and conduct. We find in Kay v. Niehaus, 298 Mo. 201, 249 S. W. 625, the rule stated as to the nature of the evidence required to sustain an oral agreement to adopt a child, reading:

"In all the cases of this kind that have come before this court we have held that to sustain the...