Kay v. Niehaus

• Decision Date: 05 March 1923
• Docket Number: No. 22745.,22745.
• Citation: 298 Mo. 201,249 S.W. 625
• Parties: KAY v. NIEHAUS et al.
• Court: Missouri Supreme Court

249 S.W. 625

298 Mo. 201

KAY v. NIEHAUS et al.

No. 22745.

Supreme Court of Missouri, Division No. 1.

March 5, 1923.

Motion for Rehearing Overruled April 6, 1923.

Appeal from St. Louis Circuit Court; George H. Shields, Judge.

Suit by Wilhelmina Kay against Frank H. Niehaus, Jr., and another. Judgment for plaintiff, and defendants appeal. Affirmed.

Lubke & Lubke, of St. Louis, for appellants. Walter 3. ScheIp and August Walz, both of St. Louis, for respondent.

GRAVES, P. J.

Action to specifically enforce an alleged agreement to adopt plaintiff as a child of Frank H. Niehaus, Sr., and his then wife. The agreement to adopt is alleged to have occurred in 1883. Plaintiff then was some 13 years of age, and she remained with the Niehaus family until she reached the age of 18 years, at which time she left that family and later married one McKay. The petition also asks for the partition of certain real estate, owned by Frank H. Niehaus, Sr., at the time of his death, alleging that there was sufficient personal estate to fully discharge all debts. The case seems to have been tried as if such was a fact. The defendants are the two sons of the said Frank H. Niehaus. The estate was in the course of administration when this suit was brought. Niehaus, Sr., died in 1918. The answer admits that he died seized of the land in question, but avers that the two sons (the defendants) were his only heirs. Other allegations of the petition "defendants deny generally," to use the exact language of the answer. Reply was a general denial. The court found that the allegations of plaintiff's petition had been sustained by the evidence, and decreed that the plaintiff was the adopted daughter of Niehaus, Sr., was entitled to partition of the lands in question, and was entitled to one third interest therein. Niehaus, Sr., had been married twice, but was single at time of his death in May, 1918. Defendants are children by the first wife. The trial court found that Niehaus, Sr., and his first wife recognized plaintiff as an adopted daughter; that the second wife so recognized her; and that these defendants so recognized her. The assigned errors in this court are:

"The trial court erred:

"(1) In finding and decreeing that the plaintiff was adopted by Frank H. Niehaus and his first wife as their child, and that as such she was and is entitled to an undivided one-third interest in the real estate described in the petition and decree.

"(2) In finding that partition in kind of the real estate in question cannot be made, and in ordering a sale thereof and appointing Oscar J. Mudd as special commissioner to make such sale.

"(3) In overruling defendant's motion for a new trial because at the trial the court overruled defendant's motion to strike out the answer of the plaintiff's witness Mary A. Shields, stating her conclusion, referring to the plaintiff, `they said she was adopted, an adopted child.'

"(4) In failing to find and decree that the defendants are the sole owners of the real estate in question and that the plaintiff has no right, title, or interest in the same as prayed in defendants' answer."

The real question is whether or not the evidence is sufficient to show an agreement to adopt. There was no deed of adoption shown, but there was an indenture of apprenticeship. The contention on the one side is that plaintiff was in the Niehaus family by reason of the indenture of apprenticeship, and on the other that there was an agreement to adopt. Appellants contend that the evidence fails to show an agreement to adopt. The case is therefore more one of fact than one of law.

I. The law of this case is simple. The petition is argumentative in its language, and thus has much therein that is pure surplusage, but, stripped of this, it charges: (1) An agreement to adopt her made by her mother and Niehaus, to which she herself assented; and (2) an agreement between her mother and herself upon one side, and Niehaus on the other to adopt plaintiff. It avers no formal deed of adoption. In cases of this character it has been said in Grantham v. Gossett, 182 Mo. loc. cit. 671, 81 S. W. 899:

"In all the cases of this kind that have come before this court we have held that to sustain the alleged oral contract the proof must be so clear, cogent, and convincing as to leave no reasonable doubt in the mind of the chancellor, not only that a contract of the general nature alleged was made, but that the particular contract as alleged was made, and its terms and conditions clearly shown. It will not satisfy the requirement to show that there was an understanding of an indefinite character, leaving its terms more or less to inference, that the child was to be taken and reared as a member of the family."

See, also. Wales v. Holden, 209 Mo. 552, 108 S. W. 89, and Arfstrum v. Baker (Mo. Sup.) 214 S. W. loc. cit. 800.

The foregoing is the rule as to the character of proof to be made. But whilst this is true, the contract or agreement to adopt may be shown by the acts and admissions of the parties. In Horton v. Troll, 183 Mo. App. loc. cit. 690, 691, 167 S. W. 1084, the St. Louis Court of Appeals says:

"It is sufficient to say that tested by the many cases which have been before our own courts, it establishes the fact of adoption by acts which estop both Dr. and Mrs. Dunham, and those claiming under them, adversely to respondents, from now disputing it. That adoption may be established by acts and conduct, where no legal deed of adoption has been executed and recorded in due form of law, has been settled in our state by many decisions of our Supreme Court as well as of the Courts of Appeals. In passing see Sharkey v. McDermott et al., supra; Healey v. Simpson, 113 Mo. 340, 20 S. W. 881; Nowack v. Berger, 133 Mo. 24, 34 S. W. 489; Lynn v. Hockaday, 162 Mo. 111, 61 S. W. 885; Hockaday v. Lynn, 200 Mo. 456, 98 S. W. 585; Wales v. Holden, 209 Mo. 552, 108 S. W. 89; Westerman v. Schmidt et al., 80 Mo. App. 344; Thomas v. Maloney et al., 142 Mo. App. 193, 126 S. W. 522."

So, too, the federal Circuit Court of Appeals for our district (the Eighth), in Roberts v. Roberts, 223 Fed. loc. cit. 776, 138 C. C. A. 103, says:

"The argument by which we are asked to reverse the decree is that there was no direct and clear evidence of an agreement to adopt at the time Myra J. Roberts was received into the family of Charles Z. Roberts. There is good reason why such evidence is wanting. All of the parties to the transaction are dead, and Myra J. Roberts was herself a babe at the time of the adoption. It seems to us that in such a case it is not necessary that the court first have direct proof of the making of the contract, and then proceed forward from the contract thus established to the conduct evidencing its existence. We think it is possible to reverse that process, and if the statements and conduct of the adopting parents are such as to furnish clear and satisfactory proof that an agreement of adoption must have existed, then the agreement may be found as an inference from that evidence."

In this case, the Horton Case, supra, as well as the cases cited therein are noted. Under the established law we feel that we should rule (and we do so rule) that the contract to adopt may be shown by the acts, conduct, and proven admission of the adopting parties, although there may be no direct proof of the agreement or contract. Under the rules aforesaid the evidence in this case must be measured. There is no direct proof of a contract to adopt as between the mother and Niehaus and wife. In fact, the only direct proof shows an indenture of apprenticeship signed by the mother and Niehaus. The father was dead and the mother was consumptive, as may be gathered from the evidence. Nor is there direct proof of a contract to adopt as between the mother and little girl upon the one hand and Niehaus and wife on the other. In weighing the evidence, the foregoing facts stand out in bold relief. The facts in evidence we shall consider next, along with the applicable rules of law stated, supra. If those facts measure up to the rules of law, the case must be affirmed, but, if not, it must be reversed.

II. Going to the facts not stated, supra, we find that on May 17, 1883, Anna Stammerjohann, the mother, by deed of indenture apprenticed or bound her daughter, this plaintiff, to Frank H. Niehaus "to learn the trade and art of cooking, nursing and general housework, to dwell and serve from day of ensealing hereof until the 27th day of June, A. D. 1888, when said minor will arrive at the age of 18 years." In the same instrument Niehaus covenanted:

"To furnish to the said Wilhelmina at all times and seasons suitable clothing, food and attention in sickness and in health, and to teach her the said trade and art of cooking, nursing and general housework and completely as the same may be in the power of the representative parties to teach and receive to give her a good public school education, and in general will as far as in him lies train her up in habits of industry, temperance and virtue the same as if she were his own child."

This instrument was signed by the mother and Niehaus on the day of its date, and duly acknowledged before a notary on the "same day. Shortly prior thereto the child was placed with Niehaus, and in about a year thereafter the mother died. For the defendants there is also evidence that plaintiff said her contract time was out on June 27, 1888, and on that date she left the Niehaus family, and sought employment of her own. On this line of evidence the defendants urge that there was no adoption or agreement to adopt.

On the other side there is evidence that Niehaus never sent the plaintiff to the public schools, but only sent her to a parochial school about one year, or just long enough to have her confirmed in the church. In this they contend he was not acting under the contract signed by the mother, supra, but was evidently acting under a subsequent understanding to...