Remmers v. Remmers

• Decision Date: 18 March 1922
• Docket Number: No. 22401.,22401.
• Citation: 239 S.W. 509
• Parties: REMMERS v. REMMERS et al.
• Court: Missouri Supreme Court

239 S.W. 509

REMMERS v. REMMERS et al.

No. 22401.

Supreme Court of Missouri, Division No. 2.

March 18, 1922.

Rehearing Denied April 7, 1922.

Appeal from St. Louis Circuit Court; Charles B. Davis, Judge.

Action by Henry J. Remmers against Eugene P. Remmers and others. From a judgment for plaintiff, defendants appeal. Affirmed.

Jourdan, Rassieur & Pierce and Thomas S. Meng, all of St. Louis, for appellants Clara J. Bromschwig and Wilhelmina Remmers.

John R. Davis, of St. Louis, for appellants Eugene P. Remmers and A. Vincent Remmers.

Frank A. Thompson and William H. Corcoran, both of St. Louis, for respondent.

DAVID E. BLAIR, J.

This action was brought to enforce an alleged oral contract of adoption and for partition of certain real estate. Plaintiff having prevailed below, defendants have appealed.

Since the appeal was taken and since the case was argued and submitted in this court, the death of Wilhelmina Remmers has been suggested. She was a party appellant individually, as executrix of the estate of Frederick J. Remmers, deceased, and as one of the trustees for Louis and Joseph Remmers. Under the provisions of section 1506, R. S. 1919, the cause proceeds at the suit of the surviving appellants.

The petition alleges that Wilhelmina Remmers is the executrix of Frederick Remmers, deceased, and that she and the other individual defendants, together with the plaintiff, constitute the only heirs at law of said Frederick J. Remmers, deceased; that defendants Louis and Joseph Remmers are insane; that Frederick Remmers died on August 12, 1919, leaving a large estate consisting of real estate in the city of St. Louis, Mo., and East St. Louis, Ill., and of personal property; that defendant Wilhelmina Remmers, as executrix under a document alleged to be the last will and testament of said Frederick J. Remmers, has in her charge all of the personal property which had been discovered.

Plaintiff alleges that, when he was an infant of tender years, Frederick J. Remmers and his then wife, now deceased, "took this plaintiff at the time of the death of his mother, declaring, stating and agreeing at said time that he would provide and care for and adopt him as his child and bring him up and treat him as his child and heir"; that from said time until the marriage of plaintiff he continued to reside in the household of said Frederick J. Remmers and was told by him that he was his child; that he was brought up in that family in the Catholic faith and educated by Remmers and wife, and, as soon as he was able to work, he did so; and that Frederick J. Remmers received the benefit of his services, love, and affection until long after plaintiff had reached his majority. Said petition alleges other facts tending to show he was the adopted son of Frederick Z. Remmers and that he grew to manhood under the belief that he was the natural son of Frederick J. Remmers; that plaintiff is entitled to and should be treated and considered as the adopted son of said Frederick J. Remmers and should be declared to be the heir of said Remmers.

Plaintiff then states that, upon the death of said Frederick J. Remmers, a paper writing was presented to the probate court which was claimed to be the last will and testament of said Remmers, and that plaintiff is not mentioned or named in any manner in said paper writing or alleged will, and as to this plaintiff the said Frederick J. Remmers died intestate. The petition then sets out the said alleged will in full. Plaintiff alleges that he has one-sixth interest, subject to widow's dower rights in certain described real estate and one-seventh interest in the personal property of the estate. Plaintiff states that he has no adequate remedy at law, and appeals to the conscience of the court of equity, and prays that a decree be entered establishing his right of adoption and declaring him to be the son and heir of Frederick J. Remmers, deceased, by virtue of the said adoption agreement, and that said Remmers be declared to have died intestate as to plaintiff, and that plaintiff be declared to be entitled to share in the estate as stated, and further prays the court to decree partition of the real estate and to order that same be sold.

Three separate amended answers were filed, which are substantially alike, if not altogether identical. Such answers allege that the pretended adoption agreement was not to be performed within one year next after the alleged making thereof, and that no memorandum or note thereof is reduced to writing and signed by Frederick J. Remmers or Mary Remmers, his wife, or either of them, and therefore said pretended contract is within the statute of frauds and no action can be maintained thereon.

Said answers then allege want of performance on the part of plaintiff of the pretended contract of adoption; that plaintiff was not a dutiful son to Frederick J. Remmers during his lifetime and did not render the service and obedience due from a child to a parent; that plaintiff treated said Frederick J. Remmers with rudeness and disrespect and neglected his duty as an employé of Frederick Remmers and left his employment without notice; that the plaintiff by false representation and fraud induced two of said Frederick J. Remmers' sons, to wit, Eugene and Vincent Remmers, to join him as coplaintiffs in a suit against Frederick J. Remmers in 1903, in which suit charges were made reflecting upon the honesty and integrity of said Frederick J. Remmers, which charges were unfounded, and after a hearing said suit was determined in favor of said Frederick J. Remmers and against the plaintiff; that in 1905 plaintiff brought a damage suit in the sum of $75,000 against Frederick J. Remmers, in which the plaintiff made unfounded and scandalous charges against the integrity, honesty, and good faith of said Frederick J. Remmers, which suit terminated in favor of said Frederick J. Remmers, and on appeal was affirmed by the Supreme Court of this state; that the filing and prosecution of said suits caused said Remmers great shame, humiliation, and distress, and put him to great trouble, labor, and' expense in defense of same, and caused injury to his good name and his business and caused him financial loss; that from the filing of the first suit plaintiff's attitude toward Frederick J. Remmers to the very day of his death was one of hatred and ill will, and plaintiff never at any time thereafter came near said Remmers or any member of his family or had any friendly relations with him or them of any sort whatever; that plaintiff did not come into court in this proceeding with clean hands and is precluded from any relief in a court of equity; and that the enforcement of the pretended contract of adoption alleged in the petition would be unconscionable, oppressive, unjust, and abhorrent to every principle of equity and good conscience. Plaintiff's reply was a general denial.

The cause was tried in the St. Louis circuit court at the February term, 1920, before Hon. Charles B. Davis, judge of Division 14, and on April 6, 1920, at the April term, the court entered its finding, judgment, and decree in favor of the plaintiff and against the defendants and decreed that plaintiff was the adopted son of Frederick J. Remmers and entitled to a child's share of the estate, and further ordered a decree in partition and sale thereunder. It is from this judgment, after unsuccessful motion for a new trial, that defendants have appealed.

The defendants asked the court to give certain instructions which were refused on the ground that instructions have no place in an equity case. The court, however, did honor defendants' request for findings of fact and conclusions of law. Since the same points will be covered in this opinion, we omit the court's findings.

The assignments of error made by the defendants in their brief go to the correctness of the trial court's findings of fact and conclusions of law thereon; that the court erred in finding the issues in favor of respondent and against the appellants and erred in rendering the judgment and decree in favor of respondent; that the court erred in its rulings on evidence, and erred in excluding competent, relevant, and material evidence offered by appellants and in not dismissing respondent's petition.

The plaintiff, Harry J. Remmers, was a son of Frances Stratmann, a sister of Mary Remmers, the first wife of Frederick J. Remmers, deceased. Frances Stratmann had an unfortunate affair with a man named Schulte. When it was discovered that she had become pregnant, a marriage ceremony was performed in St. Joseph's church in St. Louis in May, 1872, and the plaintiff was born in August following. After the marriage, Frances Stratmann went to Cleveland, Ohio, to live with said Schulte as his wife. It was later discovered that he had a wife and children living. Peter Stratmann, a brother of Frances, went to Cleveland and brought her and the plaintiff back to St. Louis, where she took up her residence with her mother. Thereafter Frances Stratmann's mother died, and she and her brothers and the plaintiff continued to live at the same place. Frances Stratmann died when the plaintiff was between 6 and 7 years of age. Soon after the death of plaintiff's mother, Peter Stratmann, her brother, and his wife Annie Stratmann, visited Frederick J. Remmers and Mary Remmers, who was a sister of Frances Stratmann, and had a conversation with them concerning the disposition to be made of Harry Stratmann. At the trial they testified to facts tending to show an agreement made by Frederick J. Remmers and his wife to adopt plaintiff and bring him up as their own child. The sufficiency of the testimony to establish such contract of adoption will be later discussed. From that date Harry Stratmann became known as Harry Remmers and thereafter called Frederick J. Remmers and his wife "papa" and "mamma" and ceased to call them "uncle" and "aunt," as theretofore. Remmers and his wife cautioned all...