Oscar Beach And Margaret Beach v. Bryan
| Citation | 133 S.W. 635,155 Mo.App. 33 |
| Parties | OSCAR BEACH AND MARGARET BEACH, Appellants, v. MARGARET C. BRYAN, Respondent |
| Decision Date | 14 January 1911 |
| Court | Court of Appeal of Missouri (US) |
December 8, 1910, Argued and Submitted
Appeal from St. Louis City Circuit Court.--Hon. Hugo Muench, Judge.
AFFIRMED.
STATEMENT.--The amended petition in this case, in substance, avers that on the 30th of December, 1904, plaintiffs, at the special solicitation and procurement of defendant, entered into an agreement with her for the adoption of a certain infant son of defendant, the son then less than five weeks old, to the effect that defendant, who was the mother and then the sole natural guardian of the infant, relinquished at that time any and all claim which she had as the mother of the child to his services and labor and the fruits thereof and to his custody society and companionship, and agreed that plaintiffs should have the custody and absolute control of the son until he should arrive at his legal age; that the son should be given plaintiffs' name and should thereafter be known and called by the name of Robert Beach, and that plaintiffs should have the right to govern and control the child as though they were his natural parents; that at the same time and by the same agreement plaintiffs agreed and did adopt the child as their own, to be known thereafter as Robert Beach and agreed to govern, educate, maintain and in all respects treat the child as though he were their own natural offspring, and that he should have the right and should inherit from plaintiffs in the same manner and to the same extent as one of their own natural offspring; that thereupon and at the same time and pursuant to the agreement, defendant delivered and surrendered the child to plaintiffs, plaintiffs accepted the child and took it to their home and into their family where they have ever since afforded the child an appropriate home in which they have at all times supported cared for and maintained and governed him with the same affection, regard and consideration that they have bestowed upon their own natural children, complying in every particular, as they will in the future, with their aforesaid agreement. Plaintiffs aver that they are willing and abundantly able to carry out and perform the agreement; that at the time of making it the child was of a tender age and sickly, requiring and receiving at the hands of plaintiffs the most diligent and faithful care, nursing and attention that plaintiffs have expended large sums of money in supporting the child and in administering to his necessities and wants generally and that the strongest affection and attachment has sprung up between plaintiffs and the child that plaintiffs are entitled "in equity and in the highest spirit of the law to a continuance of the aforesaid happy relation and condition between plaintiffs and their said adopted son," to a continuance of his society and companionship and services and earnings until he attains his majority, "and that the status of said Robert Beach be firmly established as in equity as the lawful adopted child of plaintiffs with the accompanying right in said Robert to inherit from plaintiffs as their lawful heir." They aver that they have been at all times and are now willing to join with defendant in the execution of an indenture deed of adoption of the child, in accordance with and in performance of the aforementioned agreement and to that end have made frequent and repeated demands upon defendant to join them in the execution of such deed of adoption and have frequently and repeatedly tendered such deed to defendant for execution and have demanded that she execute said deed, but that defendant has wholly failed and refused to execute the same. Plaintiffs aver that they offer in open court to execute such deed of adoption upon their part, in full compliance and in accordance with the aforesaid agreement with the defendant. Averring that they have no adequate remedy at law, they pray the court "to decree that said Robert Beach is the lawful adopted son of plaintiffs, having the right to inherit from plaintiffs as such; that said defendant . . . be held to have relinquished to plaintiffs all and every claim and right and every claim and right which she had, as such mother, to the custody and control of said Robert and to his services and labor and the fruits thereof, and that plaintiffs be decreed to have the lawful custody and absolute control of said Robert until he shall attain his lawful age," and for general relief.
The answer of defendant to this petition, admitting that Robert is her son and that he is of tender years, to-wit, four years of age, and that in December, 1904, he was committed to the care and custody of plaintiffs and that sometime afterwards the plaintiffs verbally agreed with defendant that they would adopt Robert as their true and lawful heir, as if their natural child, and that at that time she (defendant) did verbally agree that she would surrender all claim and control of the child as his mother to plaintiffs and that afterwards plaintiffs forwarded to her a deed of adoption for her execution and delivery and that she "then firmly refused to execute the same and so informed the plaintiffs, stating at the time that she would not execute any such deed," and that after this refusal plaintiffs, in writing, surrendered and relinquished all their right and claim to Robert and all their right and claim to have him adopted as their son. She further avers that since plaintiffs have had the care and control of Robert, she (defendant) has contributed toward his support and maintenance in the furnishing of clothing and the payment of cash to plaintiffs and that plaintiffs, in recognition of her right and claim to his companionship and love, permitted her to visit and have the company of the infant until the year 1908, wherefore defendant avers that there is no equity in plaintiffs' bill.
A general denial by way of reply was filed to this.
It appears from the record, as well as in the statements and briefs of counsel, that about the time of the institution of this action, defendant instituted proceedings under the habeas corpus act to recover possession of the boy from plaintiffs, and that these proceedings by habeas corpus were had in the circuit court where the cause at bar was pending and that the case under the habeas corpus was heard and disposed of by the court along with the hearing on this case, the court awarding the boy to the mother, the petitioner herein. No appeal has been taken from this latter judgment, so that the only matter before us for determination is that arising under the petition, answer and reply above referred to, the issue here involved resting on the correctness of the action of the trial court in refusing to decree specific performance by the mother of the alleged parol contract for surrender to these appellants of her infant son and relinquishment of all of her parental rights in, to and over that son. The trial was before the court, being a suit in equity, and the whole of the evidence is before us.
This action was commenced September 28, 1908. The facts in the case are practically undisputed. Plaintiffs introduced oral testimony and letters written to Mrs. Beach by defendant, and the blank duplicate indenture of adoption which had been submitted to defendant for execution at St. Louis bearing date in December, 1906. It appeared that a like set had been sent defendant in 1905, but that she had destroyed them. These forms submitted again in December, 1906, were in duplicate, and attempted by the one instrument or indenture to carry consent of the mother to adoption of the boy by plaintiffs and relinquishment by her of all parental claim the plaintiffs in and by the same instrument adopting the child as if a child by blood. It appears that the child Robert, the infant son of defendant, was born in a hospital in St. Louis, on the 28th of November, 1904; that Mrs. Beach, one of the plaintiffs, and her daughter Margaret, on or about December 28, 1904, called at this hospital to see this child, in answer to a published advertisement that some patient there had an infant that the party desired to have adopted. On that day, going to the hospital, Mrs. Beach and her daughter Margaret met the defendant, who stated that she was the one who had advertised and she wanted to have her baby adopted; that she could not keep it; that her home was in Texas. She made no inquiry as to who Mrs. Beach was, or her circumstances or where she lived. That was all that took place at that interview. Mrs. Beach and her daughter told her that as all the children of their family were grown, they wanted to adopt a baby. They then left, promising to consider the matter, return the next day and advise her of their decision. On the succeeding day they again called on defendant. When they entered the room respondent said she was so glad they had come for the baby as she was going home the next day. Thereupon the mother of the baby packed up its clothes and delivered them to Mrs. Beach or her daughter, at the same time handing them a note which she wrote and sealed up and which she asked them to give to the baby unopened when he was twenty-one years old. She then carried the baby down to the lower hall of the hospital, where the manager of the hospital met them and asked them to step into a room. The manager took down the names and address of Mrs. Beach and her daughter and asked them if they wanted any adoption papers. Before they had a chance to answer, respondent spoke up and, according to the daughter, said, "No, indeed, that will not be necessary as I promised Mrs. Beach I will never cause her any trouble." According to Mrs. Beach, she said, "That won't be necessary, I will promise...
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