Sherman v. Sherman

• Decision Date: 11 June 1923
• Docket Number: 35
• Citation: 252 S.W. 27,159 Ark. 364
• Parties: SHERMAN v. SHERMAN
• Court: Arkansas Supreme Court

252 S.W. 27

159 Ark. 364

SHERMAN v. SHERMAN

No. 35

Supreme Court of Arkansas

June 11, 1923

Appeal from Clark Chancery Court; James D. Shaver, Chancellor affirmed.

STATEMENT OF FACTS.

Mrs N.E. Sherman brought this suit in equity against D. H Crawford, as administrator of the estate of J. W. Sherman deceased, and Frank Gould Sherman, to have her dower in her deceased husband's estate allotted to her.

The suit was defended on the ground that she had entered into a separation agreement with her husband in which she had relinquished her right to dower in his estate. Another defense was that Frank Gould Sherman was the adopted child of said J. W. Sherman, and that the widow was not entitled to dower as if her husband had died leaving a widow and no children.

It appears from the record that Frank Gould Sherman is thirty-one years old, and resided in Michigan at the time J W. Sherman died. W. J. Gould is his father, and lives in Nebraska, where he has resided for thirty-seven years. Some time in March, 1891, when Frank Gould Sherman was about eighteen or twenty months old, J. W. Sherman proposed to his father that he would take the child and bring him up and treat him as his own child. W. J. Gould agreed to this, and turned Frank Gould Sherman over to J. W. Sherman to be raised as his own son. They neglected to take out adoption papers, but the child lived with Sherman after that time. J. W. Sherman lived in the State of Nebraska for eleven or twelve years after he took Frank in 1891, and always treated him as his own son. Thereafter Frank went by the name of Frank Gould Sherman. He has never lived with his father since that time.

The testimony of W. J. Gould was corroborated by that of other persons who lived near them at the time J. W. Sherman agreed to adopt Frank.

J. W. Sherman and his wife were very much attached to Frank while they lived in the State of Nebraska. After they left the State of Nebraska Mrs. Sherman died, but Frank continued to live with J. W. Sherman. In 1917, J. W. Sherman married again in the State of Texas, and Frank Gould Sherman continued to reside with him. J. W. Sherman and his wife then left the State of Texas and went to reside in Arkadelphia, Ark., in April, 1919, and lived there until J. W. Sherman died in January, 1922. At the time of his death J. W. Sherman owned certain real and personal property in Arkadelphia, Ark. After they moved to Arkansas, Frank Gould Sherman left them and went to Michigan to reside. On the 22d day of October, 1919, J. W. Sherman made a will, leaving all of his property to Frank Gould Sherman, whom he called his adopted son.

On the 14th day of April, 1921, J. W. Sherman and his wife made an agreement of separation, which is as follows: "The parties to this agreement are J. W. Sherman and Mrs. N.E. Sherman, who were married in the State of Texas on September 24, 1917, and have since resided together as husband and wife, and who are now residents and citizens of Arkadelphia, Arkansas, and who have for a long time been mutually incompatible to each other, and who both mutually agree that it is impossible for them to live together longer as husband and wife, and who mutually agree that it is better for both of them to enter into this separation agreement, and in the future to live separate and apart from each other. The terms of this agreement are as follows, to-wit: The said Mrs. N. E. Sherman, being the owner of a residence property situated at the northwest corner of Third and Main Streets in the city of Arkadelphia, Arkansas, and the same being in need of certain repairs, the said J. W. Sherman agrees to recover said house, except the porches, with a new shingle roof, to repaper two rooms and the bathroom, and to repaper two other rooms overhead; he further agrees to pay off, for the benefit of Mrs. N. E. Sherman, the mortgage held on said property by the Midland Savings and Loan Company of Denver, Colorado. The said Mrs. N. E. Sherman is to have all of the furniture and all of the tools and implements about the house where they now live, except all clothes of the said J. W. Sherman, and all books, and dishes and bedding which belonged to the said J. W. Sherman at the time of their marriage, and typewriter, which property shall be and belong to the said J. W. Sherman, and he shall be privileged to remove the same from their said residence in a reasonable time. Mrs. N. E. Sherman agrees to remove all of her property and furniture from the residence they now occupy in a reasonable time. Both parties mutually agree with each other that they each waive all right that either may have in the property of the other owned by the other at this time, or at any future time, and to join in the execution of any deed or instrument conveying the property of the other that may be necessary to the conveyance of a good title to said property, without any claim or demand of or for any interest therein, or any consideration for so joining in the execution of any such deed or instrument. The said J. W. Sherman agrees to remove his residence from the city of Arkadelphia within a reasonable time, and shall not make said city his residence so long as it shall be the place of residence of the said Mrs. N. E. Sherman. Each of the parties hereto mutually agree to waive any cause of divorce that either may have had against the other in the past, and agree that neither will prosecute a suit for divorce. Each acknowledges that the considerations herein mentioned are valuable and are mutually accepted and agreed to as the considerations and stipulations for this agreement of separation."

Pursuant to this agreement J. W. Sherman made the repairs on the property of his wife as specified in the contract. J. W. Sherman and his wife never separated, but continued to live together as husband and wife until he died. J. W. Sherman was sick for four or five weeks before he died, and his wife nursed him during his last illness. They lived together in the home of J. W. Sherman until his death.

Other witnesses testified that J. W. Sherman and his wife lived at his home in Arkadelphia from the time they moved there until he died.

Other facts will be stated or referred to in the opinion.

The chancellor found that the real estate owned by J. W. Sherman at the date of his death was a new acquisition, and consisted of certain personal property and his homestead in the town of Arkadelphia, Ark., upon which he resided with his wife at the time of his death.

The chancellor also found that J. W. Sherman died leaving surviving him his widow but no children.

It was decreed that the plaintiff, as his widow, was entitled to a homestead in the real estate and also to a one-half interest therein in fee simple, as her dower. She was also decreed dower in the personal property of J. W. Sherman, under the statute. It was decreed that Frank Gould Sherman took the remainder of the estate under the will of J. W. Sherman, deceased.

Frank Gould Sherman has duly prosecuted an appeal to this court.

Decree affirmed.

D. H. Crawford and McMillan & McMillan, for appellants.

The verbal contract of adoption carried out in accordance with its terms was effectual to fix the relation of appellant as an adopted child as though he had been legally adopted. The evidence is conclusive as to the contract and terms of adoption. 162 Mo. 11, 85 A. S. R. 480; 15 A. (N. J.) 249; Kolka v. Rosicky, 41 Neb. 328, 43 A. S. R 685. Appellant Sherman was entitled to specific performance of the contract. Naylor v. Shelton, 102 Ark. 30; 44 L. R. A. (N. S.) 773; 133 N.W. 183; 60 A. S. R. (Mo.) 270. The agreement to adopt being proved, the child has the status of a natural or legally adopted child as to property rights. Case is governed by principle illustrated in 102 Ark. 42; 126 S.W. 522; 239 S.W. 505. An adopted child is a "child" in the sense of § 4518 Revised Statutes of Missouri, which is similar in effect to § 3536, C. & M. Digest. 33 S.W. 443. See also 21 S.W. 82; 153 Mass. 525, 27 N.E. 768; § 255, C. & M. Digest; 107 N.W. 996. The contract of adoption was partly performed in this state, and will be enforced here. The agreement in Nebraska to adopt fixed the status of appellant as an adopted child which followed the parties into Arkansas. 129 Mass. 243, 37 Am. Rep. 321; note to 118 A. S. R. 685; 90 Ark. 364. If appellee can reject the will she will only have a widow's rights in deceased's estate as though appellant were his child. The separation agreement fixed the measure of the widow's interest in property acquired during continuance of marital relation. Ann. Cas. 1917-A 65; 19 C. J. 507; 67 Ark. 15; 124 Ark. 167; Ann. Cas. 1917-A 48; Ann. Cas. 1917-A 58; cases cited in 19 C. J. 512, note 76. Acknowledgment was not necessary to validity of contract under act 1915. Since Constitution of 1874 in effect wife can convey title to separate property by unacknowledged deed. 34 Ark. 160; 39 Ark. 366, act 66, Acts of 1919; 147 Ark. 12. The consideration of separation contract was adequate (97 F. 367), and she kept and enjoyed the consideration till the death of her husband. Evidence does not show any abrogation of agreement by her. 123 Ark. 268; 112 Ark. 483. Her testimony as to declarations of deceased should not have been admitted. No implied abrogation of the contract. Burden was on appellee to show it was abrogated. 116 Ark. Living together would not show it, since passage of act of 1915 as amended by act 66, Acts 1916; 116 Ark. 60; 97 F. 367; 125 Md. 113; Ann. Cas. 1917-A 48; 179 Ky. 300, 2 A. L. R. 689; 94 Ark. 461. No written reconveyance of the lands, none of the consideration returned. 149 Ark. 533; 106 Ark. 332. Elements of equitable estoppel in this case prevent her claiming the property. 137 Ark.; 136 Ark. 414; 199 Pa. 269; 85 A....