Kidd v. St. Louis Union Trust Co.

• Decision Date: 18 September 1934
• Docket Number: 32096
• Citation: 74 S.W.2d 827,335 Mo. 1029
• Parties: Marquise Kidd, nee Marquise Klepper, and James M. Klepper v. St. Louis Union Trust Company and Fred G. Zeibig, Trustees, et al., Appellants
• Court: Missouri Supreme Court

74 S.W.2d 827

335 Mo. 1029

Marquise Kidd, nee Marquise Klepper, and James M. Klepper v. St. Louis Union Trust Company and Fred G. Zeibig, Trustees, et al., Appellants

No. 32096

Supreme Court of Missouri

September 18, 1934

Rehearing Overruled September 18, 1934.

Appeal from Circuit Court of City of St. Louis; Hon. H. A Rosskoph, Judge; Opinion filed at May Term, 1934, July 17, 1934; motion for rehearing filed; motion overruled at September Term, September 18, 1934.

Reversed.

Bryan Williams, Cave & McPheeters and Bush & Bush for appellants.

(1) A court of equity in this State will, of course, specifically enforce an oral contract to adopt. (a) But before doing so it is required that proof of such contract must be so "cogent, clear and forcible as to leave no reasonable doubt in the mind of the Chancellor as to its terms and character." There must be no equivocation or uncertainty in the case. Kinney v. Murray, 170 Mo. 675; Grantham v. Gossett, 182 Mo. 652; McIlwane v. McIlwane, 171 Mo. 244; Rosenwald v. Middlebrook, 188 Mo. 58; Wales v. Holden, 209 Mo. 552; Steel v. Steel, 161 Mo. 566; Barnett v. Clark, 252 S.W. 625; Lamb v. Feehan, 276 S.W. 71; Asbury v. Hicklin, 81 S.W. 393. (b) The proof of the alleged contract of adoption here does not meet this severe test. (2) Again, even if the contract be proven according to the standard of proof required, still it will not be enforced unless a failure to do so would result in a fraud on plaintiffs. Rosenwald v. Middlebrook, supra; Wales v. Holden, supra; Teats v. Flanders, 118 Mo. 660, 24 S.W. 126; Walker v. Bohannan, 243 Mo. 119. (a) The evidence does not disclose that a failure to specifically enforce the alleged oral contract would perpetrate a fraud upon the plaintiffs. This for the reason that the evidence demonstrates that leaving the orphans' home where they lived without the complete association of their mother and going into the comfortable home of Klepper, accompanied by their mother and having, as they claim, the affection of a father which they had never known before, was not any sacrifice on the part of plaintiffs. They gave up nothing. They received much. (3) Again, even if the contract be proven according to the standard of proof required, still it will not be enforced unless it appear that the acts alleged to constitute performance of the oral contract were done pursuant to the contract alleged and that such acts could not have been as reasonably attributable to any other relation. Cases cited under Point 1, supra. (a) Here the record fails to disclose any act on the part of plaintiffs which is not as reasonably attributable to the relation of stepfather and stepchild as to any agreement to adopt. (b) Again, even the marriage of Mrs. George to Klepper is as reasonably attributable to her unconditional determination to marry him, formed the second night after she met him, as to any alleged agreement thereafter by Klepper to adopt the plaintiffs. (4) In determining whether or not the evidence here is sufficient to meet the test applied in these cases the court will keep in mind and give weight to the character -- as disclosed by the evidence -- of the deceased Klepper. Wales v. Holden, 209 Mo. 574. (5) A stepfather who voluntarily receives a stepchild into the family and treats it as a member thereof stands in the place of a natural parent and the reciprocal rights, duties, obligations of parent and child continue as long as such relation continues. 46 C. J. 1337-1338. (6) Even were the record such as to justify the decree upholding the alleged adoption, still Klepper did not die intestate as to plaintiffs for the reason that if plaintiffs were adopted they were Klepper's "legal heirs" at the time of his death and by his will, after giving a life estate to his sisters, he gave all his estate to his "legal heirs" -- the plaintiffs. Rauch v. Metz, 212 S.W. 366.

Roberts P. Elam for respondents.

(1) The proof of Mr. Klepper's oral contract to adopt plaintiffs, in consideration of their mother agreeing to marry him, was so "cogent, clear and forcible as to leave no reasonable doubt in the mind of the chancellor as to its terms and character." Martin v. Martin, 250 Mo. 539, 157 S.W. 575; Nowack v. Berger, 133 Mo. 24, 34 S.W. 489; Dillman v. Davison, 239 S.W. 505; Remmers v. Remmers, 239 S.W. 509; Carlin v. Bacon, 16 S.W.2d 46; Lynn v. Hockaday, 162 Mo. 111, 61 S.W. 885; Craddock v. Jackson, 223 S.W. 924; Rauch v. Metz, 212 S.W. 357. (a) The use of the exact word "adopt" is not necessary. Martin v. Martin, 250 Mo. 539, 157 S.W. 575; Lynn v. Hockaday, 162 Mo. 111, 61 S.W. 885; Horton v. Troll, 183 Mo.App. 677, 167 S.W. 1081; Holloway v. Jones, 246 S.W. 587; Remmers v. Remmers, 239 S.W. 509; Fisher v. Davidson, 271 Mo. 195, 195 S.W. 1024; Taylor v. Coberly, 38 S.W.2d 1055. (b) The surroundings of, and the motives actuating, the alleged adopting parent should be taken into account in determining the character and terms of the contract. Fishback v. Prock, 279 S.W. 38; Signaigo v. Signaigo, 205 S.W. 23. (c) The parol contract of adoption could be established by acts and conduct, even if there were no direct evidence of the contract. Drake v. Drake, 43 S.W.2d 556; Shelp v. Mercantile Trust Co., 15 S.W.2d 818; Fisher v. Davidson, 271 Mo. 195, 195 S.W. 1024; Thomas v. Maloney, 142 Mo.App. 193, 126 S.W. 522; Kay v. Niehaus, 249 S.W. 625; Johnson v. Antry, 5 S.W.2d 405; Rauch v. Metz, 212 S.W. 357. (2) The acts of performance, on the part of Harry I. Klepper and plaintiffs, are attributable only to the contract of adoption, and not to any relationship of stepfather and stepchildren. Drake v. Drake, 43 S.W.2d 556; Nowack v. Berger, 133 Mo. 24, 34 S.W. 489. (a) The plaintiffs, as a matter of law, knew of the contract to adopt. Dillman v. Davison, 239 S.W. 505. (3) Failure to specifically enforce the contract of adoption would operate as a fraud upon the plaintiffs and upon their mother. The considerations which Harry I. Klepper received cannot be returned. Those parties cannot be placed in statu quo. Rauch v. Metz, 212 S.W. 357; Thomas v. Maloney, 142 Mo.App. 193, 126 S.W. 522; Lynn v. Hockaday, 162 Mo. 111, 61 S.W. 885; Carlin v. Bacon, 16 S.W.2d 46; Shelp v. Mercantile Trust Co., 15 S.W.2d 818; Sutton v. Hayden, 62 Mo. 101; Martin v. Martin, 250 Mo. 539, 157 S.W. 575; Nowack v. Berger, 133 Mo. 24, 34 S.W. 489. (4) These plaintiffs being the adopted children of Harry I. Klepper, deceased, he died interstate as to them because they were not named or provided for in his will. Section 525, R. S. 1929; Remmers v. Remmers, 239 S.W. 509; Thomas v. Black, 113 Mo. 66, 20 S.W. 657; Bradley v. Bradley, 24 Mo. 311; Pounds v. Dale, 48 Mo. 270; Weatherall v. Harris, 51 Mo. 65; Williamson v. Roberts, 187 S.W. 19; Boman v. Boman, 49 F. 329; Hargardine v. Pulte, 27 Mo. 423; Neal v. Davis, 53 Ore. 423. (5) Much deference should be given by the appellate court to the judgment of the chancellor on the facts and the credibility of the witnesses. Eldred v. Glenn, 52 S.W.2d 35; Daggs v. McDermott, 34 S.W.2d 46.

Sturgis, C. Ferguson and Hyde, CC., concur.

OPINION

STURGIS

The plaintiffs in this case claim to be the adopted children of Harry I. Klepper, deceased, and as such are suing for his estate, real and personal, in the hands of the two defendants above named as trustees under his will. The other defendants are the collateral heirs, sisters and their children, of Harry I. Klepper, deceased, as well as devisees under his will. The suit is really to determine title to the estate of Harry I. Klepper, deceased, as between plaintiffs claiming to be his adopted children and pretermitted heirs under his will, and the defendants, his collateral kindred, claiming under his will. In form the suit is by plaintiffs praying the court to enter a decree establishing the relationship or status of plaintiffs to be that of adopted children and heirs of Harry I. Klepper, deceased, and as such to be pretermitted heirs and entitled to his estate. The trial court so decreed and defendants have appealed.

The petition alleges and the evidence shows that Harry I. Klepper died in St. Louis on July 7, 1927, possessed of a considerable estate, unmarried and without natural children or descendants, leaving a will, duly probated, by which he devised all his property to the abovenamed trustees, who were also made executors of the will, in trust for the benefit of his four named sisters, defendants herein, for life with remainder to his legal heirs. As the source of plaintiffs' right and title to the estate of Harry I Klepper, the petition alleges that plaintiffs "are the legally adopted children of the said Harry I. Klepper; that in the year 1910, when plaintiff Marquise Klepper Kidd was about the age of thirteen, and plaintiff James M. Klepper was about the age of eleven years, and when plaintiffs were in the exclusive custody and control of their mother, Mrs. Ola E. George, the said Harry I. Klepper, in consideration of the said Ola E. George consenting to marry him, promised, contracted and agreed with the said Ola E. George that he, the said Harry I. Klepper, would adopt her said children, these plaintiffs, and would make them his heirs and would in all manner and respects consider, keep and treat them as his lawful children. That the said Ola E. George and the said Harry I. Klepper, in pursuance of said contract and agreement, were thereafter married on July 3, 1910; that in further pursuance of the said contract, promise and agreement, as aforesaid, the said Harry I. Klepper, immediately after said marriage, with the consent and acquiescence of the said Ola E. George, procured and took the custody and control of plaintiffs as his own children, and changed the names of the plaintiffs from Marquise George and James...