Steele v. Steele

• Decision Date: 12 March 1901
• Parties: STEELE v. STEELE et al.
• Court: Missouri Supreme Court

61 S.W. 815

161 Mo. 566

STEELE v. STEELE et al.

Supreme Court of Missouri, Division No. 1.

March 12, 1901.

CONTRACT TO MAKE WILL — BURDEN OF PROOF.

1. Where decedent took plaintiff, then 5 years old, from an orphan asylum, the only condition imposed by the manager being that the boy should have a good home in a Christian family, and reared plaintiff as his son, receiving from him a son's duty, and from time to time decedent made statements indicating that he intended to leave his property to plaintiff at his death, but there was no evidence that he ever contracted to leave his property to plaintiff or bound himself so as to impair his right to will his estate as he might thereafter see fit, plaintiff, even if adopted, occupied no better position than decedent's own son would have done, and could not recover the estate, as against the testamentary disposition thereof made by decedent.

2. Where plaintiff claims the estate of a testator who took plaintiff, when 5 years old, from an orphan asylum, and raised him as a member of testator's family, basing his claim on an agreement that testator would adopt him and leave him all testator's property, the burden is on him to present evidence so strong, cogent, and convincing as to exclude every doubt that testator made the contract.

Appeal from circuit court, Knox county; E. R. McKee, Judge.

Action by George W. Steele against Catherine Steele and others. From a judgment for plaintiff, the defendants appeal. Reversed.

This is a suit in equity for the enforcement, against the executors and legatees under the will of William Steele, deceased, of an alleged oral agreement to adopt the plaintiff, and leave him all the property which the testator should own at his death. The petition alleges that, in 1868, the plaintiff, whose name was Walter M. Avillney, about 5 years old, was in a Catholic orphan asylum in Chicago, and under the particular charge and care of Mrs. Dennis McCabe; that the testator, William Steele, then living with his wife, Catherine, on a farm in Wisconsin, was childless, and, desiring a child to adopt, entered into a contract with Mrs. McCabe that he would take the plaintiff to his home as his own child, the plaintiff to serve him as such, that he would legally adopt him, and at his death the plaintiff should inherit all his property; that under that agreement Mrs. McCabe delivered plaintiff to testator, who took him into his family, changed his name to George W. Steele, and they immediately entered upon the reciprocal relation of parents and child, performing their respective duties pertaining to that relation which continued until plaintiff was grown; that in 1872 William Steele, with his family, including the plaintiff, moved to Knox county, Mo., where he lived until his death; that when plaintiff was 23 years old, with the advice and approval of the testator, he went to California, where he was residing at testator's death, but while there he kept up a filial correspondence with his adopted father. The allegations as to the agreement to adopt and leave the property to plaintiff were denied in the several answers filed. Those were the only issues of fact in the case. Plaintiff read in evidence the depositions of Henry Harm and August Harm, taken in Wisconsin, who lived in the neighborhood where Steele had lived in that state, and remembered when he brought the plaintiff to his home there. These two witnesses testified to a conversation they had with William Steele in relation to the matter 30 years before. The age of one of these witnesses is not given, but that of the other is stated at 42 when the deposition was given, so that he was a boy 12 years old when Mr. Steele was holding this conversation with them. Henry Harm's recollection of this conversation was: "He told me he took that boy for his own boy, and when he died he would get the property. * * * Q. Did he say to you what he would do for him at his death? A. He would give him his property." On cross-examination: "Q. Did William Steele say anything to you about any contract under which he took the plaintiff? A. No." August Harm, having first stated that Mr. Steele told him the conditions on which he had taken plaintiff, was asked: "Q. What were the conditions? A. He took Walter to raise him and bring him up as his own boy, and after his death should be heir to his property. Q. Did you hear William Steele say that he would leave plaintiff his property at his death? A. Yes, sir; * * * William Steele told me that he had adopted the boy as his own, to bring him up as his own child, and to be heir to his property at his death." Cross-examination: "* * * Did William Steele say anything to you about any contract under which he took the plaintiff into his family? A. No, sir." Isaac Brown testified that about 1891 or 1892 he paid Mr. Steele $324 that he owed him, and when he did so Steele said, "I'll just lay that aside for my boy." Plaintiff was then in California. Mr. Stewart testified that, in 1886 or 1887, Mr. Steele approached him on the subject of buying an interest in witness' hardware business for George, the plaintiff, saying that his principal reason was he wanted to keep George at home with him. Patsy Collins testified that when he was a boy, and with other boys of George's age, on Saturdays would try to entice him away from his work to read dime novels, the old man would reprimand George, and once he heard him say to George that "he ought to take care of his work a little closer, and not be losing your time with these boys, because you are not working for me; you are working for yourself. You know, when I am dead and gone, whatever I have got will be yours." Mr. Jarvis testified that he had a conversation with Mr. Steele about George, some time after he had gone to California, and suggested to him that he ought to "assist the boy some"; to which Steele replied, "Well, yes; I will. I have done it. I have assisted him heretofore some; not to the extent I calculate to, if he conducts himself right." Mr. Randolph testified that he went one day to pay the old man $100 which he owed him, and found him at work in the garden. Told him he ought not to work when he had such money. Asked him what he was going to do with his money; he could not carry it with him. "`Oh, well,' he says, `I am keeping it for George and Kate.'" Kate was his wife. Mr. Pardon testified that, speaking of doing his work himself instead of having witness to do it, he said: "I ain't really able to do it, but I have to do it. * * * I would rather take things a little easier. At my death, it all goes to George, I suppose, and the woman." Judge Hunott testified that Mr. Steele told him when George was in California that if he would come back he would set him up in business. There...