Menees v. Cowgill

• Decision Date: 04 October 1948
• Docket Number: 20898
• Citation: 214 S.W.2d 561
• Parties: MENEES v. COWGILL et al
• Court: Kansas Court of Appeals

214 S.W.2d 561

MENEES v. COWGILL et al

No. 20898

Court of Appeals of Missouri, Kansas City

October 4, 1948

Paul W Richards, of Red Oak, Iowa, Elmer E. Hall, of Kansas City for appellant.

Trusty & Pugh, of Kansas City, and Chas. H. Mayer, of St. Joseph for respondents.

OPINION

CAVE BLAND

This is a proceeding under the Declaratory Judgment Act, Article 14, Chapter 6, R.S.Mo.1939, Mo.R.S.A., in which plaintiff seeks to be declared the lawfully adopted child and legal heir of Guy Cowgill and Lillian Cowgill.

The pleadings are lengthy but there are no disputed material facts, so we shall state the issues and the facts as briefly as possible.

Plaintiff was born in 1912, a child of James and Effa Babcock. Her mother died in 1915, and soon thereafter she was placed in the home of Lillian Cowgill and Guy Cowgill, her husband. Lillian Cowgill was a sister of Mrs. Babcock. In 1920 Mr. and Mrs. Cowgill entered into an oral contract with James Babcock to adopt the plaintiff by deed as their child. No deed was ever executed and no proceedings were ever had in the juvenile court to adopt plaintiff under our statutes providing for such an adoption. However, she continued to live in the Cowgill home as their daughter until she married in 1936. The evidence is conclusive that the Cowgills agreed to adopt plaintiff, and we need not detail the testimony touching that question.

In 1936 Mr. Cowgill died testate and recognized the plaintiff in his will as his daughter and devised to her certain of his property. He left no other children or descendants, but was survived by his wife, defendant Lillian Cowgill, one sister, Clara Cowgill Cochrane, and his mother. The mother predeceased the sister, who died testate on April 11, 1944, a resident of Montgomery County, Iowa. In her will Mrs. Cochrane named the plaintiff as her niece and devised to her certain property, but the will failed to dispose of real and personal property having a value in excess of $ 25,000, all located in the State of Iowa. In due time the plaintiff filed notice of claim of heirship to the undevised property of the Cochrane estate in the District Court of Montgomery County, Iowa, where said estate was being administered. Thereafter, plaintiff filed this suit in the Circuit Court of Jackson County, Missouri, seeking to have herself declared the adopted child of Guy Cowgill, deceased, and his wife, Lillian Cowgill. The defendants are Lillian Cowgill, who was a party to the original contract to adopt; James Babcock, plaintiff's father; George J. Muller, executor of the estate of Mrs. Cochrane, and a large number of collateral relatives of Mrs. Cochrane, all cousins in various degrees. Plaintiff alleges that she is claiming the undisposed of property of the estate of Mrs. Cochrane, and that the collateral kin are also claiming said property and, for that reason, they are made defendants.

The case was tried in the Circuit Court of Jackson County as a suit in equity and the court, after making finding of facts substantially as above outlined, entered the following decree:

'It Is, Therefore, Considered, Ordered, Adjudged and Decreed by the court that the agreement made by Guy M. Cowgill and Lillian Cowgill, his wife, during the year 1920 to adopt the plaintiff, Vivian Cowgill Menees, was and is a binding contract on the said Guy M. Cowgill and Lillian Cowgill, and, although no attempt has been made by the said Guy M. Cowgill or Lillian Cowgill to adopt the plaintiff, they, and each of them, are estopped from denying that they did adopt the child, and, as to any claim against them, or either of them, plaintiff should have and does have, from and after May 17, 1920, all the rights of an adopted child; and it is further ordered, adjudged and decreed that the plaintiff, not having been adopted under any law of the State of Missouri, should not and does not have any right or claim against the estate of Clara Cowgill Cochrane, her executor, Geo. J. Muller, a defendant herein, or any of the defendants in this case, except the said Lillian Cowgill; and it is further ordered, adjudged and decreed that the plaintiff have and recover her costs herein expended against the defendant Lillian Cowgill, and that execution issue therefor.'

After proper motions had been overruled, plaintiff perfected her appeal. In effect, her assignment of errors charge that the court erred in not declaring her status as the adopted child of Guy Cowgill and Lillian Cowgill as against all of the defendants; that it erred in rendering judgment that she does not have any claim against the estate of Clara Cowgill Cochrane, her executor, George J. Muller, or any of the defendants herein, except Lillian Cowgill.

We have been favored with very able briefs by counsel, and both sides agree that some of the questions presented are new and novel. Under our view of the case, it is not necessary to decide all the questions so ably presented.

It must be kept in mind that we are here discussing questions arising out of an oral contract to adopt an infant. We are not discussing a case or a set of facts where an infant has been adopted by our statutory proceeding in the juvenile court.

The basic purpose of plaintiff's suit is to have a court of equity decree specific performance of an oral contract to adopt. She says the purpose of her suit is to have a court of equity declare her status to be that of an adopted child of Guy Cowgill and Lillian Cowgill. Under the facts in this case we see no distinction in the definition of the purpose to be accomplished. The contract must be ordered enforced before her status can be declared. In Niehaus v. Madden, 348 Mo. 770, 777, 155 S.W.2d 141, 144, the court, in discussing the question of the enforcement of a contract to adopt, had this to say:

'It has long been recognized, however, that a person who is legally competent to adopt may enter into a binding contract whereby for a good consideration he agrees to take another as his child. Where such contract is actually made and is based upon a good consideration and where it is fully performed by the person to be adopted but is not performed by the promisor during his lifetime, a court of equity will declare specific performance against the adopter's estate to the extent at least of making the adoptee an heir. * * * Furthermore, specific performance may be ordered even though the contract to adopt were an oral one. * * * We need not consider whether the contract actually falls within the language of the statute of frauds or not, for even an oral contract whose proof is ordinarily prohibited by that statute may be enforced in equity if it has been substantially performed by the promisee.

'However, before a decree for specific performance may be rendered in such a case plaintiff must prove the existence of a contract to adopt.' (Italics ours.)

Cases are legion in this state which refer to actions of this character as being one for the enforcement of an oral contract or for the specific performance of such a contract. See cases cited later.

Adoption was unknown at common law and prior to 1917 the only statutory method of adoption in this state was by deed, which gave the adoptee certain rights of inheritance from the adopter. In 1917 that method of adoption was repealed, and what is now Chapter 56, R.S.1939, Mo.R.S.A. was enacted, providing for the adopting of children by a proceeding in the juvenile court. Plaintiff was not adopted by either method. But our courts have frequently enforced oral contracts to adopt, both before and since 1917. There are many such cases but we cite only a few. Drake v. Drake, 328 Mo. 966, 43 S.W.2d 556; Holloway v. Jones, Mo.Sup., 246 S.W. 587; Shelp v. Mercantile Trust Co., 322 Mo. 682, 15 S.W.2d 818; Holland v. Martin, Mo.Sup., 198 S.W.2d 16; Weber v. Griffiths, 349 Mo. 145, 159 S.W.2d 670; Thompson v. Moseley, 344 Mo. 240, 125 S.W.2d 860; Kay v. Niehaus, 298 Mo. 201, 249 S.W. 625; Niehaus v. Madden, supra. In discussing the question whether our statutory method of adoption was the only and exclusive method of adopting a child in this state, the court, in Drake v. Drake, supra, said 328 Mo. 972, 43 S.W.2d 559: 'If, as we have seen, the former statute (prior to 1917) which authorized an adoption by deed did not preclude a court of equity, in a proper case, from decreeing specific performance of an oral contract to adopt, no valid reason exists why the present statute which authorizes an adoption by a judgment of the juvenile division of the circuit court should do so. Both statutes authorize an adoption in a specified manner, but neither contains a prohibition against a court of equity taking the necessary steps to protect the interest of a child in a case where one has expressly agreed to adopt the child, or by his acts and conduct has placed himself in a position where it would be inequitable to permit him to assert that the child was not adopted.'

The principle underlying the enforcement of such a contract is well stated by the Supreme Court in Weber v. Griffiths supra, wherein it is said 159 S.W. 673: 'The basic reasoning underlying observations that adopting parents (and others to the extent they claim under them) are estopped in equity from denying the reciprocal obligations springing from the relation is that it would be inequitable and unfair to permit a repudiation of the status of parent and child on account of a failure to comply with statutory formalities and permit guilty persons to profit by their own wrong after the child had performed everything, such as bestowing love, affection, companionship, comfort and service, contemplated by such relationship at an age when the child had no will or choice of its own in the matter. * * * This reasoning is not applicable to the...