Rhode v. Farup

• Decision Date: 30 August 1940
• Docket Number: 8319.
• Citation: 293 N.W. 632,67 S.D. 437
• Parties: RHODE v. FARUP et al.
• Court: South Dakota Supreme Court

293 N.W. 632

67 S.D. 437

RHODE v. FARUP et al.

No. 8319.

Supreme Court of South Dakota

August 30, 1940

Appeal from Circuit Court, Minnehaha County; L. L. Fleeger, Judge.

Action by Arthur Rhode, a minor, by Juden A. Peterson, guardian of his person and estate, against Bena Farup, Agnes Peterson and others for specific performance of a contract alleged to have been made between Agnes Peterson, mother of the plaintiff, and others for the adoption of the plaintiff. From a judgment in favor of the plaintiff, all defendants except Agnes Peterson appeal.

Judgment affirmed.

Palmer K. Larson and B. O. Stordahl, both of Sioux Falls, for appellants.

Tom Kirby and T. N. Feyder, both of Sioux Falls, for respondents.

ROBERTS Judge.

Hansina Rhode died intestate August 23, 1938, leaving no husband or lineal descendants surviving. Arthur Rhode commenced this action for the specific performance of a contract alleged to have been made between Agnes Peterson, mother of the plaintiff, and Hans and Hansina Rhode. The defendants are the administrator of the estate and all the collateral heirs defendants Agnes Peterson and Ruth Peterson being nieces and the other defendants being brothers and sisters of Hansina Rhode. Plaintiff alleges that by the terms of the contract the Rhodes agreed to adopt him as their child and to make him their heir; that pursuant to this agreement plaintiff was received into their home as an adopted child; and that thereafter he resided in their home until the death of Hansina Rhode and was in all respects treated and held out as their own child and heir. After further alleging facts pertaining to the administration of the estate and the property left by the deceased and that prior to his death in February, 1936, Hans Rhode conveyed all of his property to his wife, plaintiff prays that the agreement made and entered into between Hans and Hansina Rhode and Agnes Peterson be specifically enforced and that plaintiff be adjudged to be the owner of all of the property left by the decedents.

Defendant Agnes Peterson made no answer or appearance. The other defendants interposed a joint answer specifically denying that a contract was entered into. The court found for the plaintiff and from a judgment entered for specific performance, an appeal has been taken to this court.

The sufficiency of the evidence to sustain the findings of the trial court is challenged. The trial court found that "during October, 1924, and prior thereto, the said Hans Rhode and Hansina Rhode desiring to take the minor, Arthur Rhode, into their home as their child, obtained the consent" of his parents; that "it was agreed between the said Hans Rhode and Hansina Rhode and the mother and father of Arthur Rhode * * * that the said Rhodes were to take the plaintiff minor, Arthur Rhode, as their child, and were to adopt him"; that "they were to make him their heir * * * and that the plaintiff, Arthur Rhode, was to inherit their property upon their death"; that "pursuant to said understanding and agreement" the Rhodes "took the plaintiff Arthur Rhode into their home"; that "thereafter and until the death of Hans Rhode in February, 1936, the said Hans Rhode and Hansina Rhode kept the plaintiff in their home, and in every manner and respect treated and considered him and held him out as their child and heir"; and that "after the death of said Hans Rhode, the plaintiff continued to live with and was cared and provided for by the said Hansina Rhode, and she in every manner and respect continued to treat and hold the plaintiff out as her child and heir."

Hans Rhode and his wife resided on a farm, which he owned, in Minnehaha County, a few miles northeast of Sioux Falls. In March, 1929, they moved from the farm to Sioux Falls and there resided until their respective deaths. Agnes Peterson, niece of Hansina Rhode, came from Norway, and for a number of years made her home with Mr. and Mrs. Rhode. She married John N. Peterson and thereafter resided on a nearby farm. The Petersons had three children of whom the plaintiff, born July 9, 1923, was the youngest. The mother on behalf of the plaintiff testified with respect to the alleged contract and the circumstances surrounding the taking of plaintiff by Mr. and Mrs. Rhode into their home. She testified that shortly after birth Mr. and Mrs. Rhode expressed a desire "to take the baby and keep him for their own"; that thereafter there were several discussions among them about taking the boy; that Mr. and Mrs. Rhode stated that they would leave their property to the plaintiff; that the Petersons agreed to the arrangement; that Mr. and Mrs. Rhode took the child into their home in October, 1924, when he was 15 months of age and that they gave him the name of Rhode "because he (Mr. Rhode) said his name wasn't going to die out"; that the plaintiff resided in the Rhode home until about the time of the death of Mr. Rhode in 1936; that she had conversations with Mrs. Rhode after the death of Mr. Rhode; that Mrs. Rhode said that "she was going to take care of Arthur and keep him and take care of him and give him what little she had"; that at another time Mrs. Rhode said that "she was going to fix papers to protect Arthur"; that when Mr. Rhode died Mrs. Rhode sent an acknowledgment of floral offerings signed "Mrs. H. Rhode and son"; that plaintiff attended the public schools in Sioux Falls and was known as Arthur Rhode; that he later attended school in the country and changed his name to Peterson because school children "teased him" when he did not use the family name; and that Mrs. Rhode "wanted him to go to school" in the country to keep him off the streets. John N. Peterson testified that he was present during some of the conversations between his wife and Mr. and Mrs. Rhode and corroborated much of the testimony given by her.

It appears from the evidence that a judgment for divorce in an action instituted by Agnes Peterson was entered in December, 1924.

Several witnesses testified in regard to declarations and statements made by decedents. Rev. J. H. Myrwang testified that he had visited with Mr. Rhode on several occasions; that Mr. Rhode said that "he and his wife had no children, but they had an adopted son, Arthur Peterson"; and that decedent had referred to the plaintiff at other times as his adopted son. Another witness testified that Mr. Rhode said "that was his boy and everything was going to be left to him." Without undertaking to detail the other testimony in behalf of the...