McElvain v. McElvain

• Decision Date: 14 October 1902
• Citation: 71 S.W. 142,171 Mo. 244
• Parties: McELVAIN v. McELVAIN et al.<SMALL><SUP>*</SUP></SMALL>
• Court: Missouri Supreme Court

71 S.W. 142

171 Mo. 244

McELVAIN v. McELVAIN et al.^*

Supreme Court of Missouri, Division No. 1.

October 14, 1902.

PARENT AND CHILD—ADOPTION—ORAL CONTRACT—ENFORCEMENT—EVIDENCE.

1. Where an agreement to adopt a child had been performed on his part, the contract will be enforced in equity, though it is not in writing.

2. Evidence held insufficient to establish a contract by a father of an illegitimate son to give the latter an heir's share in the father's estate on condition that the son would live with and work for the father during minority.

Appeal from circuit court, Worth county; P. C. Stepp, Judge.

Action by William McElvain against Deborah McElvain and others. From a judgment in favor of plaintiff, defendants appeal. Reversed.

Benson & Peery and Wilson & Phipps, for appellants. Aleshire & Benson and Kelso, Schooler & Kelso, for respondent.

VALLIANT, J.

This is a suit in equity to compel the defendants, who are the widow and children of Andrew McElvain, deceased, to admit the plaintiff to an equal share as one of the heirs in the partition and distribution of the estate of the intestate. The substantial statements of the petition are to the effect as follows: That plaintiff was born in Illinois in 1839; that he was the illegitimate son of Andrew McElvain, who died intestate in Worth county, Mo., in February, 1898, leaving the defendant Deborah, his widow, and the other defendants, his lawful children, heirs and distributees of his estate, valued at $35,000. That plaintiff lived with his mother in Illinois and Iowa until he was 15 years old, when she died, after which he received a letter from his putative father, "stating to him that, if he would come and live with him, that he, the said Andrew McElvain, deceased, would take the plaintiff into his family, and treat him as his own child, and share his property equally with the balance of his children. That afterwards the plaintiff and the said Andrew McElvain, deceased, entered into a contract and agreement the terms of which were that, if the plaintiff would go to the home of the said Andrew McElvain, deceased, and live with and work for him, the said Andrew McElvain, deceased, and perform the duties of a child to a parent until plaintiff became of age, that plaintiff should be treated the same as the balance of his children, and should share equally in all his property with the balance of his children, and be considered in all things upon an equal plane and footing with all his children, so far as the rights and privileges of said decedent's home was concerned, the same as his other children, and upon equal terms with all of his said children, and should share equally with the children of the deceased in the final disposition of all of his property." That, in consideration of the terms of the agreement, the plaintiff went to the home of the deceased, lived with him as one of the family, and worked for him until the plaintiff was of age. The answer denies the allegations of the petition in relation to the alleged agreement, and avers that the intestate in his lifetime paid the plaintiff in property and money all that his services were worth. Reply, general denial.

The testimony for the plaintiff on the issue as to the contract set up in the petition consisted in the main of that of three witnesses, —two first cousins of plaintiff on his mother's side, and a half-brother on the same side. The deposition of one of these on this point was to the effect that in 1856 or 1857—"along about that time,"—Andrew McElvain, who then lived in Worth county, about a mile from where witness' father lived, came over to his father's house, and asked Esquire Neal, who was there, to write a letter for him to his son, the plaintiff, who was then a boy about 13 years old, living in Iowa, to come and live with him, as his mother was dead, and he had no home; and that he should share with the rest of his children. The letter was written as requested, and witness heard it read. "It said he wanted Billy to come home and live with him. His mother was dead, and he had no home, and he wanted him to live with him. That is all I recollect about the letter." Within a few months after the letter was written, the plaintiff came to the home of witness' father in Worth county, and the next day Andrew McElvain came to the house, and when he started home he said to plaintiff, "`Well, Willie, you are coming home this evening, are you?' and Willie said, `Yes, if it is all agreeable,' and Uncle Andrew said, `Come ahead,'" and plaintiff went that evening. The testimony of another of these three witnesses as to the alleged contract was to the effect that in "1854 or 5 or 6, or it might have been later, I wouldn't say," the plaintiff was at witness' father's, and Judge McElvain came there, and plaintiff and witness were called in the house, "and right there it was the contract was made between him and the boy; it was talked of there." "Well, sir, he was asking the boy if he would go home and live with him, and the boy told him that he had become able to take care of himself, and, unless there was more in it than just board and clothes, that he could earn his board and clothes any place; and Uncle Andy then told him that if he would go home, and be as one of the other children, he should be, as one of the other children, heir to his property just the same when he was done with the property." The plaintiff went to the McElvain home that evening, and lived there until he enlisted in the army in September, 1861. The testimony of the half-brother bearing on the issue as to the contract was that in July, 1899, he was living in Mercer county, Mo., and, witness' father having recently died, witness went to his father's late home in Iowa, and in looking over some old papers of his father's found a letter addressed to the plaintiff in care of witness' father, purporting to be signed by Andrew McElvain. It had the appearance of an old, worn, and somewhat faded letter. Witness read a portion of it, not all, and, thinking it of no importance, threw it on the floor, and afterwards caused it to be burned with other papers deemed worthless. As to the contents of the letter the witness said: "Well, the letter was addressed to Wm. McElvain. He addressed him as his son. `My dear son,' says, `I seat myself to write you a few lines to let you know that I am well and hope this may find you the same.' He says, `William, I hope now, son, that you may come home and live with me, and make your home with me.' He says, `If you will come home and make your home with me I'll do the same part by you that I intend to do by the balance of my children.' Q. Anything further? A. No, I don't know that I read anything in particular further than that." The testimony of the two witnesses as to the letter that each spoke of was admitted over the objections of the defendants that the foundation for secondary evidence had not been laid, and as to that referred to as having been found by witness among his father's papers there was also no evidence tending to show that it was written by Andrew McElvain. There was an effort on cross-examination to learn from the two witnesses who undertook to relate the conversations between Andrew McElvain and the plaintiff their respective ages when the conversation occurred, but they were unable to give the information with proximate accuracy. The impression left by their evidence on that point is that they were perhaps 10 or 12 years old at the time. They appeared to have very little education. One of them signed the deposition by her mark. She gives the date of the conversation she heard as the last of 1856 or the first of 1857. The other said it was "1854 or 5 or 6, or perhaps later." Another witness for plaintiff—Mr. Dry—was of the opinion that plaintiff went to live at the McElvain home two or three years before the war; was not sure; it might have been as late as 1859; that Judge McElvain came to Missouri to live in 1855. The further testimony for plaintiff tended to show that after he went to live in the McElvain home he worked on the farm, and was treated as a member of the family, and called Andrew McElvain "father." He enlisted in the Union army in a six-months regiment in September, 1861, and never after that lived at the McElvain home. There was a letter from the intestate to the plaintiff, dated October 3, 1887, in which the plaintiff was addressed as "My dear son." This letter will be referred to again. On the part of defendants the testimony tended to show that the plaintiff came to live at the McElvain home in 1859. He worked on the farm in the summers of 1859-1860, and went to school in...