Keller v. Lewis County

• Decision Date: 13 December 1939
• Docket Number: 35991
• Citation: Keller v. Lewis County, 134 S.W.2d 48, 345 Mo. 536 (Mo. 1939)
• Parties: Anna D. Keller, Appellant, v. Lewis County: David G. Lillard; Henry Forsthove and Emmet C. Nunn, Judges of the County Court of Lewis County, and Thomas I. Johnson, Executor under the Will of Lucius D. Patterson
• Court: Missouri Supreme Court

134 S.W.2d 48

345 Mo. 536

Anna D. Keller, Appellant, v. Lewis County: David G. Lillard; Henry Forsthove and Emmet C. Nunn, Judges of the County Court of Lewis County, and Thomas I. Johnson, Executor under the Will of Lucius D. Patterson

No. 35991

Supreme Court of Missouri

December 13, 1939

Appeal from Lewis Circuit Court; Hon. Edmund L. Alford Special Judge.

Affirmed.

Walter M. Hilbert, Otto P. Shanks and Wilson & Schmiedeskamp for appellant.

(1) Where an oral contract to adopt has been partially or fully performed by the child, such child may file a suit in equity for vindication of property rights arising out of the agreement to adopt, where the contract did not amount to a legal adoption, and a court of equity has jurisdiction to so enforce the contract of adoption. Bland v. Buoy, 335 Mo. 967, 74 S.W.2d 612; Drake v. Drake, 328 Mo. 966 43 S.W.2d 556; Taylor v. Coberly, 327 Mo. 940, 38 S.W.2d 1055. (2) The courts do not require such parol contracts of adoption to be established by direct evidence the rule being that such contracts may be shown by the acts, conduct and admissions of the adopting parties. Ahern v. Mathews, 337 Mo. 362, 85 S.W.2d 377; Bland v. Buoy, 335 Mo. 967, 74 S.W.2d 612; Drake v. Drake, 328 Mo. 966, 43 S.W.2d 556; Taylor v. Coberly, 327 Mo. 940, 38 S.W.2d 1055; Kay v. Niehaus, 298 Mo. 201, 249 S.W. 625; Martin v. Martin, 250 Mo. 539, 157 S.W. 575; Horton v. Troll, 183 Mo.App. 677, 167 S.W. 1081; 2 Mo. Law Review, p. 300. (3) So vigilant are courts of equity in enforcing oral contracts to adopt that it is generally held that where one takes a child into his home as his own, thereby voluntarily assuming the status of parent, and by reason thereof obtains from the child the love, affection, compensation and services which ordinarily accrue to a parent, he or those claiming through him will thereafter be precluded from asserting that he did not adopt the child in the manner provided by law. Taylor v. Coberly, 327 Mo. 940, 38 S.W.2d 1055; Horton v. Troll, 183 Mo.App. 677, 167 S.W. 1081; Holloway v. Jones, 246 S.W. 587; Eldred v. Glenn, 52 S.W.2d 35; 2 Mo. Law Review, p. 300.

Barker Davis, H. S. Rouse, W. A. Mussetter and Noah W. Simpson for respondents.

The trial court did not err in finding the issues for respondents and dismissing appellant's bill as the evidence was insufficient to sustain the alleged oral contract to adopt; and both the evidence and pleadings were insufficient to sustain the theory of equitable estoppel as an aid to appellant's alleged cause of action. Benjamin v. Cronan, 93 S.W.2d 975, 338 Mo. 1177; Furman v. St. Louis Union Trust Co., 92 S.W.2d 725, 338 Mo. 884; Kidd v. St. Louis Union Trust Co., 335 Mo. 1029, 74 S.W.2d 827; Lamb v. Feehan, 276 S.W. 71; Barnett v. Clark, 252 S.W. 625; Shelp v. Mercantile Trust Co., 332 Mo. 682, 15 S.W.2d 818; Wales v. Holden, 209 Mo. 552, 108 S.W. 89; Grantham v. Gossett, 182 Mo. 651, 81 S.W. 895; Kinney v. Murray, 170 Mo. 674, 71 S.W. 197; Buck v. Meyer, 195 Mo.App. 287, 190 S.W. 997; McElvain v. McElvain, 171 Mo. 244, 71 S.W. 142; Steele v. Steele, 161 Mo. 566, 61 S.W. 815; Bland v. Buoy, 335 Mo. 967, 74 S.W.2d 612; Ahern v. Mathews, 85 S.W.2d 377, 337 Mo. 362; Eldred v. Glenn, 52 S.W.2d 235; McLain v. Mercantile Trust Co., 237 S.W. 506, 292 Mo. 114; Hammersbough v. Cheatum, 84 Mo. 13; Smith v. Holdoway Const. Co., 129 S.W.2d 894.

Bradley, C. Hyde and Dalton, CC., concur.

OPINION

BRADLEY

Plaintiff sought a decree adjuding her to have the status of an adopted daughter of Lucius D. Patterson deceased, and that the property owned by deceased, at the time of his death and disposed of by his last will, be adjudged to be the property of plaintiff. The Pattersons were childless, and Mrs. Patterson predeceased her husband. Mr. Patterson executed his last will May 23, 1928, by which his entire estate, consisting of cash and U.S. bonds, amounting in all to $ 25,026.84, was bequeathed to Lewis County "for the use of the Lewis County, Missouri Infirmary for the support of the poor and dependent therein and for no other purpose whatever." Testator died May 28, 1936, and the will was admitted to probate on June 1, 1936. This cause was filed March 26, 1937. The court found against plaintiff and dismissed her petition. Unsuccessful in motion for a new trial she appealed.

Plaintiff, in her petition, states that "on or about the 8th day of April, 1872, Lucius Desha Patterson took plaintiff from said institution (orphans' home), no children having been born to the said Lucius Desha Patterson and his wife, both of whom later died childless; that immediately upon taking plaintiff from said institution in the city of Quincy, Illinois, as aforesaid, the said Lucius Desha Patterson and his wife brought plaintiff to their home in Lewis County, Missouri, as their daughter and assumed her care, custody and control; that on or about the last day of May, 1872, in the County of Lewis, State of Missouri, the said Lucius Desha Patterson orally agreed with the said plaintiff to adopt her as his child and heir; that they gave to plaintiff the name of Anna D. Patterson, and sent her to school; that plaintiff was introduced and referred to thereafter by the said Lucius Desha Patterson and his wife as their adopted daughter and that they stated upon various occasions that they had agreed to adopt plaintiff as their daughter and were going to adopt her as their daughter; that during the time that plaintiff remained in the home of the said Lucius Desha Patterson and his wife she rendered such obedience and service and the affection and attention as is usually rendered to parents by a child; that thereafter on the 5th day of September, 1888, plaintiff was married at the home of the said Lucius D. Patterson and under the name of Anna D. Patterson with the advice and consent of the said Lucius D. Patterson. . . . That plaintiff fully performed all her duties as the adopted daughter of the said Lucius Desha Patterson and lived with and served him as such for a period of more than twenty years and until long past her age of maturity, but that the said Lucius Desha Patterson failed and neglected to execute the necessary instrument evidencing a legal adoption of plaintiff." Defendants answered jointly by a general denial.

The facts follow: Anna Elizabeth Draper (plaintiff) was born at Marceline, Illinois, February 6, 1865, and on August 14, 1871, she was placed by her mother in the Woodland Home for Orphans and Friendless at Quincy, Illinois. April 8, 1872, she was taken from the orphans' home by Lucius D. Patterson, who, with his wife, resided in Lewis County, Missouri. The Pattersons, for some reason, soon returned plaintiff to the orphans' home, but she was again taken from the home by Mr. Patterson under what is termed an apprenticeship indenture, executed by him and the orphans' home on June 6, 1872.

Plaintiff remained in the Patterson home from June 6, 1872, until her marriage to Edward G. Keller September 5, 1888. In December, 1896, she separated from her husband, and she and the children, three boys -- age seven, six, and four years, went to the Patterson home. January 12, 1897, she filed suit in Marion County, Missouri, for divorce, alleging certain indignities. September 11, 1897, she was granted a divorce and custody of the children. It is not clear just how long plaintiff and her children remained in the Patterson home, but probably until some time in 1898, when plaintiff and her husband were remarried. Mr. Patterson was strongly opposed to plaintiff returning to and remarrying her former husband, and endeavored to dissuade her from doing so. After the remarriage, insofar as appears here, communication between plaintiff and her family, and the Pattersons practically ceased. The Kellers left the State in 1915 or 1916, and thereafter there was no communication, so far as appears. The three sons were witnesses. Two resided in Idaho, and one in the State of Washington. It does not appear where plaintiff resided. The trial court filed a written opinion in which he says that plaintiff "came from somewhere" after the death of Mr. Patterson.

We have given a kind of skeleton background of plaintiff's connection with the Pattersons. Fourteen witnesses, men and women, who knew plaintiff when she was in the Patterson home, were witnesses for her. A composite statement of the evidence of these witnesses may be given thus:

The Pattersons treated plaintiff as their daughter and she treated them as her father and mother; addressed them as "ma" and "pa," and when speaking of them so designated them. There was that affection that usually obtains between parents and child. The Pattersons, both at home and abroad, held plaintiff out as their daughter; fed her; clothed her; schooled her; loved her. In brief, the Pattersons did all that could be expected of fairly well to do parents, and plaintiff responded as a dutiful and appreciative daughter would be expected to do.

The Pattersons sent out formal invitations to plaintiff's wedding, which invitations read: "Mr. and Mrs. L. D. Patterson desire your presence at the marriage of their daughter, Anna, to Edward G. Keller, Wednesday evening, September fifth, eighteen hundred and eight-eight, at 6:30 o'clock." The marriage license authorized the marriage of "Edward G. Keller in the County of Marion and State of Missouri, who is over the age of twenty-one years, and Miss Anna D. Patterson of the County of Lewis and State of Missouri, who is over the age of eighteen years."

Eugene Nelson, an attorney and ex-speaker of the Missouri House of Representatives, and one of the fourteen witnesses above mentioned, in his boyhood years knew the Pattersons and plaintiff. He testified that the Patterson family and the Nelson family ...