Johnston v. Eriksson

• Decision Date: 15 July 1946
• Docket Number: 8829.
• Citation: 23 N.W.2d 799,71 S.D. 268
• Parties: JOHNSTON v. ERIKSSON et al.
• Court: South Dakota Supreme Court

23 N.W.2d 799

71 S.D. 268

JOHNSTON v. ERIKSSON et al.

No. 8829.

Supreme Court of South Dakota

July 15, 1946

Rehearing Denied Sept. 9, 1946.

Jones, Matthews & Fitzpatrick, of Sioux Falls and John T. Heffron, of Deadwood, for appellants.

E B. Adams, of Hot Springs, for respondent.

ROBERTS Judge.

This action was brought by Hilda Johnston for the specific performance of an oral contract. Plaintiff alleges that Edward Vappling was married to Hannah Juntti, sister of plaintiff's father that the Vapplings, who were childless, obtained the consent of Gustav Juntti, the father, to take plaintiff into their home and it was agreed between the father and Edward Vappling that the latter would adopt and make the child an heir; that plaintiff in pursuance to the terms of the agreement resided with the Vapplings and rendered such obedience and affection as is usually rendered to parents by a child. The prayer of the complaint is that plaintiff be declared by the judgment of the court to be the adopted child of Edward Vappling and to be entitled to the right of inheritance in the estate of the adoptive parent.

The court found that an agreement to take and adopt the plaintiff was made; that the father of the plaintiff relinquished all parental authority and made no further contribution to her support or education; that Edward Vappling in the fall of 1923 brought plaintiff to the Vappling home and assumed custody and care of her; that plaintiff resided with the Vapplings and in compliance with the agreement rendered to them the services and affection of a natural child; and that the parties fully performed the terms of the agreement 'except only the making and filing of legal adoption papers.' The court declared plaintiff to be the owner of all the property of the deceased, Edward Vappling. From this judgment an appeal has been taken to this court by those defendants who are the sole heirs at law of the deceased and entitled to his estate unless plaintiff ultimately establishes her right thereto.

It is the settled law in this state that a contract to adopt, not followed by effectual adoption proceedings during the lifetime of the adoptive parent, may be enforced to the extent of declaring that the adopted child is entitled to inherit from the estate of the adoptive parent. Crilly v. Morris, 19 N.W.2d 836.

The burden of proof rests upon a person seeking to share in the estate of an adoptive parent by virtue of such a contract to establish it 'by evidence so clear, cogent and convincing as to leave no reasonable doubt as to the agreement.' Crilly v. Morris, supra. Under this rule relief should be cautiously granted and each case must rest on its own facts.

There is no direct evidence of the making of the alleged agreement between the father and the uncle, as the father had died before this action was brought. Plaintiff relies upon a contract as evidenced by the conduct and admissions of the parties and the surrounding circumstances. The pertinent inquiry is whether there is sufficient evidence in the record evaluated in the manner indicated to support the claim of plaintiff that a contract as alleged was made.

The record discloses that Edward Vappling was born in Sweden, emigrated to America and became a resident of Lawrence county in 1910. He married Hannah Juntti. The Vapplings resided on a farm until 1927, when they moved to Spearfish. Mrs. Vappling died in 1941. At the time of the death of Edward Vappling on January 5, 1944, his estate consisted of the farm and personal property of the approximate value of $10,000. No will was found. The appellants, residents of Sweden, are his sister, two brothers and the eight children of a deceased brother.

The record further discloses that plaintiff was born January 13, 1910; that in the fall of 1923 she was living with her father on a ranch near the postoffice of Willett, in Harding county, South Dakota; that her parents had separated; that her father was in meager circumstances with a family of seven children to support; that from the time plaintiff entered the Vappling home she went by the name of Hilda Juntti; that she enrolled in the public schools and in the Black Hills Teachers College under that name and gave Willett, South Dakota, as her home and Gustav Juntti as her parent or guardian; that plaintiff called Mr. and Mrs. Vappling 'Uncle' and 'Aunt'; and that she was frequently referred to by Mr. Vappling as 'my girl.'

It is principally upon the testimony of plaintiff that the establishment of the alleged contract depends. Concerning the contract, her testimony is as follows:

'I went to live with the Vapplings in 1923. I remember the occasion when Edward Vappling came to my father's farm to get me to go and live with him. He asked me if I would want to go to Spearfish and be his girl. I told him no. He stayed all night at the farm. I went to school the next morning and when I came home at noon my father told me I had to go to Spearfish. I did not overhear any conversation between Edward Vappling and my father.

'Q. Did you have any later conversation with Ed Vappling relative to your status in the home--his home? A. Yes.

'Q. When was that, do you know? A. No, it has been many, many times.

'Q. Mrs. Johnston, about when was the first time you had a conversation with Ed Vappling relative to your status? About when was that after you left your father's home? A. It was very shortly after I came to make my home with my aunt and uncle.

'Q. You don't remember how long afterward, do you? A. No.

'Q. Who was there when you had that talk? A. My aunt and uncle.

'Q. What, if anything, did Ed Vappling tell you at that time? A. He told me I was his girl, and I was working there just like their child, and I was to have what was theirs when they were gone. My aunt died in November, 1941. I made the arrangements for the funeral. After the funeral I was at the Vappling home for a few days.

'Q. And did you have any conversation or talk with Ed Vappling at that time relative to your status? A. Yes.

'Q. What was the occasion of the conversation? What were you doing at the time? A. Well, I had just prepared supper for my uncle and husband. He was talking to me, telling me that all he had was to be mine, just like any parent would leave what they had to their child. Mr. Vappling died in January, 1944. I was at the hospital at Deadwood to see him. I was there the afternoon before he died.

'Q. There was a conversation at that time? A. Yes.

'Q. Who was that conversation between? A. My uncle was talking to me.

'Q. And Clarence was there? A. Yes, Clarence was there in the room.

'Q. What did he say to you at that time? A. Well, he was very glad to see us, and he told us to take charge of everything. Then he turned to my husband and told him to take charge of the farm, stock and everything.

'Q. Was anything said at that time relative to the inheritance or property he might leave? A. He said it was mine, that was why he wanted my husband to take care of it. My marriage was talked over with the Vapplings. There was a conversation between Ed Vappling and Clarence at that time in my presence.

'Q. What was said by Mr. Vappling? A. He said I was his child, and that I would get what he had when he was through with it.

'Q. Now, just to go back over matters I may have overlooked, Hilda, I think you stated that there was a conversation at the time you first were to go to live with your aunt and uncle, between your father and Ed Vappling relative to the position you would occupy after you started living with them. A. Yes.

'Q. I wish you would tell the Judge now just what that conversation was that you overheard between your father and Ed Vappling at that time. A. Well, my uncle told me that he was to furnish my living, my home, and that when they were through with their property, and so on, I would get it just the same as if I were their child.'

On cross-examination plaintiff testified:

'I described myself in the ...