Rauch v. Metz

• Decision Date: 16 May 1919
• Docket Number: No. 19929.,19929.
• Citation: 212 S.W. 357
• Parties: RAUCH et al. v. METZ et al.
• Court: Missouri Supreme Court

212 S.W. 357

RAUCH et al. v. METZ et al.

No. 19929.

Supreme Court of Missouri, In Banc.

May 16, 1919.

Appeal from Circuit Court, St. Charles County; Edgar B. Woolfolk, Judge.

Petition by J. F. Rauch and H. F. Ohlms, executors of Henry F. Pieper, deceased, etc., and others against Herman C. Metz and others and Mary Ensor for the construction of the will. From a decree in a separate controversy between defendants Metz and Ensor the latter appeals. Reversed and remanded.

See, also, 212 S. W. 353.

William Waye, Jr., of St. Charles, and Brownrigg, Mason & Altman, of St. Louis, for appellant Ensor.

C. W. Wilson, of St. Charles, for appellants Pieper and others.

Hugo Muench and J. L. Hornsby, both of St. Louis, for respondent Metz.

BROWN, C.

This appeal taken by Mary Ensor, a defendant in the above-entitled cause, involves a separate controversy between her and the defendant Herman C. Metz over the legacies bequeathed to Elizabeth Metz by the terms of the will of Henry F. Pieper. All other controversies raised by the record are determined by us in the principal case, so far as they affect any of the parties to the suit. The questions here presented relate solely to the rights claimed by the appellant Mary Ensor under the will of Henry F. Pieper, as an adopted daughter of Elizabeth Metz. If it be determined that she sustained that relation it will be necessary to determine her rights, if any, under the will; otherwise she has no interest in any part of the fund in controversy. The petition asked for the construction of the terms of the will, setting it out in hæc verba. It contained, among many others, three bequests to Elizabeth Metz, the first being a legacy of $5,000, described as item 12. The next consisted of an interest in a trust fund consisting of bank stocks. The third directed the residue of his estate, after the payment of debts and legacies, to be converted into money, and divided in thirteen equal portions, one of which was bequeathed as follows: "To Elizabeth Metz, or in the event of her death her heirs shall receive one-thirteenth." Mrs. Metz was his sister, and died before the testator, and these legacies are the subject of this controversy between Herman Metz, her son, and this appellant. The petition states that the executors and trustees do not know to whom, as between the defendants Herman C. Metz and Mary Ensor, they should pay one-half of these legacies, and ask the advice and direction of the court. Herman C. Metz and Mrs. Ensor set up their respective claims, the former to the whole and the other to one-half of each of the three legacies. Mrs. Ensor claims as adopted daughter of Mrs. Metz, and issue was joined and a trial had thereupon. During the trial, which began February 14, 1916, the appellant took the witness stand in her own behalf, and the respondent's counsel said:

"It appearing now that Mrs. Ensor is the claimant as an adopted child of Mrs. Metz, and she being dead, so I take it that fact disqualifies Mrs. Ensor as a witness in this proceeding, and we object to her testifying.

"The Court: I will overrule the objection as to the witness being incompetent for any purpose.

"To which ruling of the court the defendant Herman C. Metz then and there duly excepted and saved his exceptions."

Mrs. Ensor then proceeded to testify In chief to the effect that she was 57 years old; that when a child, from 4 to 7 years of age, she was taken by her father to the home of Mr. and Mrs. Metz, and continued to reside with them until November, 1881, when she was past 22, her birthday being in April. About two years afterward her father, Patrick John McCauliff, who had remarried, came to take her away. Mrs. Metz and she both cried, and her father said the Metzes, who were both present, could keep her for a while longer. Mrs. Metz said: "No; if we can't keep her for good she did not want me at all; she did not want to bother." There was more conversation, which she could not remember. Dr. Bruere, through whom they had first obtained the child, was present, and some papers were drawn up and signed by Mr. and Mrs. Metz, and her father soon left. Mr. and Mrs. Metz embraced her, and told her she was now their little girl. They had no children at that time, but shortly afterward a son was born to them, and two other children were afterward born, at intervals of about two years. She assisted in caring for them, and helped in the washing and other household work, and was sent to school until about 12 years old, when her schooling ceased and she assisted in the household work. Mr. Metz and the children were in delicate health and the work was hard. They loved her and she loved them, and always called them father and mother. She was called both Mary Metz and Mary Mack while in school. When she first came to them they seemed to be in comfortable circumstances, but became very poor—"`barely existed," as she described it. When 16 or 17 she learned dressmaking, at which she worked, clothing herself, and using all of her earnings not needed for that purpose in clothing the children and for other family expenses. After she was 18 she continued to live with them, and continued her work for the general support of all for more than four and a half years, going with them to St. Louis in 1879, and leaving their home in November, 1881, when nearly 23 years old. In the following February she married Dr. Ensor.

She was cross-examined at great length by the respondent's counsel respecting her life in the Metz family, as well as her conduct toward them from the time she left) their home until and since the death of Mrs Metz. The object of this was evidently to show that their ways parted when she left them, and that she ceased at that time to recognize them, even as friends; that while she maintained friendly relations with some of the Pieper family, including Kate Machens, one of the legatees in Judge Pieper's will, she had pointedly and absolutely repudiated Mrs. Metz and her son, the respondent in this appeal.

We have given this synopsis of appellant's testimony that we may have a better understanding of the ruling of the court after the completion of her entire examination. It said:

"Respecting the testimony of claimant, Mrs. Ensor, as to her competency as a witness, the court takes this position, so it may be understood by the counsel, that if there was a statutory deed or contract of adoption sufficient in and of itself to make the claimant an heir of Mrs. Metz, then she is not a party to the contract, but a party in interest, and therefore competent to testify; if there is not a sufficient deed or contract of adoption prescribed by our statute at the time, but that it is dependent upon ripening into a valid or sufficient contract of adoption, being a full performance of an initiatory understanding or agreement fully performed to take it out of the statute of frauds, then it is the position of the court that Mary Ensor and her testimony must become and is part of the contract, in substance and in fact and then she would be a party to the contract and party in interest both, and not a competent witness. It was suggested by counsel yesterday she was not a party to the contract, but a subject of the contract, party in interest, and not a party to the contract; hence competent. I wanted counsel to understand the position of the court."

Appellant's counsel excepted to this ruling as follows:

"Defendant Mary Ensor excepts to the ruling of the court in so far as the court rules she is incompetent for any purpose."

At the close of all the evidence the court made, at the instance of this respondent, several declarations of law, among which was the following:

"That the intervener, Mary Ensor, having alleged the existence of a contract of adoption on the part of the deceased, Elizabeth Metz, claimed to have been made with the interpleader, or with her father in her behalf, it is incumbent upon said Mary Ensor to prove a written contract with said Elizabeth Metz, valid and sufficient under the laws of Missouri when made."

The evidence will be stated in the opinion as the questions to which it must be applied are considered.

I. The question is presented whether or not, at the time of the death of Elizabeth Metz, the appellant was her adopted daughter. No deed of adoption was produced, and there is no evidence that any such instrument was acknowledged and recorded by Mrs. Metz and her husband as provided by the statute. She was called and sworn as a witness in her own behalf, and the respondent thereupon objected to her competency on the ground that she claimed in this proceeding as an adopted child of Mrs. Elizabeth Metz, who was dead, and that she was thereby disqualified as a witness. This objection was by the court overruled, to which the respondent excepted. The witness then proceeded, in answer to questions, to testify to the facts and circumstances relating to her being placed by her father in the Metz home when she was less than seven years old, the execution of some writing by which she was told that she was adopted by Mr. and Mrs. Metz some two years later, and of her life with them during the next 16 years. Respondent's counsel then cross-examined her to the extent of about 25 pages of the printed record, including not only the matters referred to in her examination in chief, but many things not so referred to, and covering about 30 years of her subsequent married life, eliciting facts relating to an estrangement between her and Mrs. Metz, which they treated vigorously in their brief as a defense to her claim. After this was concluded the court withdrew her testimony from tin case. The propriety of this action is before us for review. The question is an important one, upon which we get little light from adjudicated cases. It is founded on section 6354 of the Revised Statutes of 1909, which provides that—

"No person shall be disqualified as a witness in any civil suit or proceeding, at law or in...