Shelp v. Trust Co.

• Decision Date: 29 March 1929
• Docket Number: No. 26776.,26776.
• Citation: 15 S.W.2d 818
• Parties: ALPHA RUF SHELP, Appellant, v. MERCANTILE TRUST COMPANY, as Trustee.
• Court: Missouri Supreme Court

15 S.W.2d 818

ALPHA RUF SHELP, Appellant, v. MERCANTILE TRUST COMPANY, as Trustee.

No. 26776.

Supreme Court of Missouri, Division No. 1.

March 29, 1929.

Appeal from St. Louis County Circuit Court. — Hon. G.A. Wurdeman, Judge.

AFFIRMED.

Jones, Hocker, Sullivan & Angert, Conway Elder, L. Frank Ottofy, A.E.L. Gardner and P.H. Cullen for appellant.

(1) Under all the evidence the trial court should have found that plaintiff was the equitably adopted child of Frank A. Ruf. Equitable adoption is ruled by the facts of each particular case. Craddock v. Jackson, 223 S.W. 930; Jenkins v. Gordon, 256 S.W. 139. (2) The facts constituting the adoption are liberally construed in favor of the child. Hockaday v. Lynn, 200 Mo. 456; Fischer v. Davidson, 271 Mo. 195; Rauch v. Metz, 212 S.W. 362. (3) The jurisdiction is founded, not upon the promise itself, but upon the consideration received by way of performance. Signaigo v. Signaigo, 205 S.W. 29; Dillman v. Davidson, 239 S.W. 509; Remmers v. Remmers, 239 S.W. 513. (4) The oral contract of adoption may be inferred from acts, conduct and admissions. "Direct testimony is not required." The rule of strict proof obtains only where the action is for specific performance to convey land, make a will or compensate for services rendered. Kay v. Niehaus, 298 Mo. 201; Kerr v. Smiley, 239 S.W. 501; Dillman v. Davidson, 239 S.W. 505; Jenkins v. Gordon, 256 S.W. 136. (5) The change of the child's name to that of the foster parents is not essential to adoption. Nor is it material how the child addresses them. Signaigo v. Signaigo, 205 S.W. 26; Craddock v. Jackson, 223 S.W. 930; Kerr v. Smiley, 239 S.W. 504; Rauch v. Metz, 212 S.W. 363; Jenkins v. Gordon, 256 S.W. 139; Holloway v. Jones, 246 S.W. 587. (6) The adoption may be established without proof that the adopting parent employed the technical word "adoption." Lynn v. Hockaday, 162 Mo. 124; Martin v. Martin, 250 Mo. 539; Horton v. Troll, 183 Mo. App. 691; Holloway v. Jones, 246 S.W. 590. (7) The status of the plaintiff could not be in anywise affected by her marriage, nor even by her ingratitude. Rauch v. Metz, 212 S.W. 363; Craddock v. Jackson, 223 S.W. 930.

S.A. Mitchell, Carter, Jones & Turney and H.R. Small for respondent.

(1) It is conceded there was no adoption by deed, no adoption by court procedure and no acknowledgment by the Rufs of adoption. (2) It is conceded and shown by the natural mother and by all the evidence in the case that the mother never consented to the claimed adoption. (3) The allegations in plaintiff's petition with reference to adoption are conclusions of law only and, in addition, are indefinite, with the result plaintiff did not allege facts sufficient to constitute a cause of action, nor sufficiently definite on which to predicate the claim of adoption. The allegations must be definite. Forrester v. Sullivan, 231 Mo. 345; Walker v. Bohannon, 243 Mo. 136; Woodward v. Stowell, 222 S.W. 820. (4) It is alleged plaintiff when taken into the Ruf home was taken in as a daughter and with the consent of her mother. The proof showed plaintiff entered the Ruf home in 1911. There was no proof plaintiff was taken into the home of the Rufs as their daughter in 1911. There was no proof that the mother consented to her being taken into the home of the Rufs as the daughter of the Rufs in 1911. There is no proof that at any subsequent time plaintiff was taken into the home of the Rufs as their daughter. There is no proof that at any subsequent time plaintiff was taken into the home of the Rufs with the consent of her mother. The proof is that she came there and was there with her mother as her mother's daughter and as the niece of the Rufs. The proof is that the mother never heard of such a thing as adoption until after the death of Mr. Ruf and never consented to an adoption of her daughter as the daughter of the Rufs. (5) Plaintiff was alleged to have been held out by the Rufs as their daughter. The proof is that plaintiff was never so held out. The proof is further that plaintiff never held herself out as the daughter of the Rufs. (6) As plaintiff was never taken in as a daughter, nor held out as a daughter, her performance, if any, was not as a daughter. (7) The cases of Holloway v. Jones, 246 S.W. 587; Rauch v. Metz, 212 S.W. 357; Signaigo v. Sagnaigo, 205 S.W. 23, and Craddock v. Jackson, 223 S.W. 924, referred to in plaintiff's brief as similar in their facts to the instant case, are not cases where the facts are the same or similar. Under the decisions plaintiff must plead with definiteness and prove facts with overwhelming convincingness to the effect that she was taken in as a daughter with the consent of her mother and held out as a daughter thereafter, and as such performing so that it would be inequitable for a court of equity to have her regarded as other than a daughter, as other than an heir. Plaintiff should not be decreed the daughter of the Rufs. Wales v. Holden, 209 Mo. 552; Grantham v. Gossitt, 182 Mo. 651; Arfstrum v. Baker, 214 S.W. 859; Kinney v. Murray, 178 Mo. 674; McElwain v. McElwain, 171 Mo. 244; Barnett v. Clark, 252 S.W. 625; Forrester v. Sullivan, 231 Mo. 345; Woodward v. Stowell, 222 S.W. 815; Walker v. Bohannon, 243 Mo. 136; Haffner v. Miller, 299 Mo. 214.

RAGLAND, J.

This case comes to the writer on reassignment. Frank A. Ruf, a citizen and resident of the city of St. Louis, died testate, on the 28th day of May, 1922, seized and possessed of an estate, consisting of both real and personal property, of the approximate value of two and a half million dollars. He left surviving a widow, Alpha Ruf, but no child, unless plaintiff was a child by adoption. Under his will his wife was generously provided for and modest legacies were given to certain of his collateral kindred and to certain of his former employees; but the bulk of his estate was given and devised to the defendant in trust for designated public charities. The plaintiff was not named or referred to in the will. This action is for the partition of the real estate. The only controverted issue tendered by the petition appears from the following excerpt therefrom:

"That the plaintiff was, at an early age, by and with the consent of her then only surviving natural parent, taken into their home by the said Frank A. and Alpha H. Ruf and was treated and held out by them as their daughter, and encouraged to believe, and given to understand, that she was taken into their home as a daughter; that they, and particularly the said Frank A. Ruf, received the benefits accruing to him on account of that relation, while the plaintiff assumed and performed, during her minority and until her marriage and during a period of eleven years, the duties and burdens, and performed the services and gave the companionship and attention of a daughter, whereby plaintiff became invested with the status of and is the adopted daughter of the said Frank A. Ruf, and, as such, entitled to institute and maintain this suit as the pretermitted heir at law of the said Frank A. Ruf."

Those allegations were denied generally and specifically, and the Statute of Frauds was also pleaded in bar.

The evidence heard on the trial below was voluminous and took a wide range. The court indulged counsel generously in their search for hidden motives and secret springs of action. We shall attempt to deal with tangibles only. And our first endeavor will be to set forth in general outline the facts which are conceded or shown by the evidence to be uncontrovertibly true.

Plaintiff is the daughter of Caroline Hatch and Charles S. Hatch, now deceased; she was born in Buffalo, New York, where her parents resided, on the first day of September, 1898; she was christened Alpha Ruf Hatch. Alpha H. Ruf, the wife — now the widow — of Frank Ruf, and plaintiff's mother are sisters: Mrs. Ruf is the elder of the two by thirteen years. She married Ruf in 1897 at the home of plaintiff's parents in Buffalo. She was at the time a widow, and had previously resided in St. Louis where Ruf was engaged in business, that of manufacturing and selling a proprietary remedy known as Antikamnia. After their marriage the Rufs resided at 5863 Cabanne Avenue, St. Louis; they were frequent visitors at the Hatch home in Buffalo.

Charles S. Hatch was a lawyer; he died August 22, 1910, after an illness of several years' duration; in addition to his wife, Caroline, and his daughter, Alpha, he was survived by a son, Charles, who was four years older than the daughter. He left no estate; but his widow came into possession of a policy of insurance on his life under the terms of which she was to receive, and did receive, an annuity of $1000 for a period of ten years. Prior to their father's death Charles and Alpha attended the State Normal School of Practice at Buffalo; following his death, Charles was entered, in January, 1911, as a student in the Michigan Agricultural College. He continued there as such until his graduation in June, 1915. In the latter part of January, or the first part of February, 1911, Mrs. Hatch, at the urgent insistence of her sister and the latter's husband, moved from Buffalo to St. Louis to reside, and with her daughter, Alpha, occupied a small apartment, which the Rufs had rented for her, in the immediate vicinity of their home. After living in the apartment four or five months Mrs. Hatch, upon the invitation of her sister and brother-in-law, quit the apartment and made her home with them, she and her daughter thereby becoming members of the Ruf household. The mother and daughter were given for their occupancy a large room which was known as the guest room; they were treated in all respects by Mr. and Mrs. Ruf as members of their family. From January to July, 1912, the Rufs traveled in Europe and left Mrs. Hatch in charge of the home and servants.

In September, 1911, Mrs. Hatch entered her daughter, Alpha, as a pupil in the Dozier School, one of the public schools of the city of St....