Stella v. Pantel

• Decision Date: 11 January 1919
• Docket Number: 21,746
• Citation: 178 P. 241,104 Kan. 18
• Parties: STELLA V. PANTEL, Appellant, v. FLORENCE J. BOWER, Appellee
• Court: Kansas Supreme Court

178 P. 241

104 Kan. 18

STELLA V. PANTEL, Appellant, v. FLORENCE J. BOWER, Appellee

No. 21,746

Supreme Court of Kansas

January 11, 1919

Decided January, 1919.

Appeal from Geary district court; ROSWELL L. KING, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

SPECIFIC PERFORMANCE--Agreement to Take Child into Family to Raise--Contract that Child Should Inherit Not Proven. In an action for the specific performance of an alleged agreement between the plaintiff's mother and the defendant, when the plaintiff was two years old, by which defendant agreed that she and her husband would take plaintiff into their home, raise and treat her as their own child, and upon their death she should inherit from them or either of them the same share of their property and in the same manner as though she were their own child and they should die intestate, held, on the facts stated in the opinion, that a demurrer to the plaintiff's evidence was rightly sustained.

L. B Morris, of Junction City, Lee Monroe, James A. McClure, and C. M. Monroe, all of Topeka, for the appellant.

J. V. Humphrey, and A. S. Humphrey, both of Junction City, for the appellee.

OPINION

PORTER, J.:

This is an appeal from a ruling sustaining a demurrer to the plaintiff's evidence. The action was for specific performance of an oral contract under which plaintiff claims the right to one-half of all the property owned by the husband of Mrs. Bower at the time of his death.

The plaintiff's real name before her marriage was Stella Ertz. When she was two years old she was taken into the family of defendant and raised and treated by Mrs. Bower and her husband as their own child. She went by the name of Stella Bower; believed until she was about fifteen that Mr. and

Mrs. Bower were her parents, and only learned the truth when she received a letter from a sister which caused her to make inquiries of Mrs. Bower.

Mr. Bower was a farmer, and the plaintiff worked on the farm doing not only the ordinary work about the house, but assisting him in plowing, harrowing, cultivating in the fields, and in feeding and attending live stock. The last few years she was there she performed generally the work of a hired man. She received no compensation for her services, other than her board and clothing. In January, 1917, when the plaintiff was about twenty years old, Mr. Bower died intestate, leaving no heirs at law except his wife. He owned real estate and personal property valued at about $ 10,000. Mrs. Bower at once asserted ownership of all the property and sold the personalty. She gave plaintiff 100 bushels of corn, which plaintiff claims she understood was to be only a partial payment for her work after she arrived at the age of eighteen. In February, 1917, Stella married, and she and her husband offered to continue on the farm with Mrs. Bower and to help with the work; Mrs. Bower declined the offer, stating that she didn't need plaintiff any longer.

The petition alleges an oral agreement between the plaintiff's mother and Mrs. Bower, when the plaintiff was two years old, by the terms of which Mrs. Bower agreed that she and her husband would take plaintiff into their home, give her the same love, care and education as though she were their child, and "upon their death she would inherit from them or either of them, the same share of their property in the same manner as though she were their own and only child and they should die intestate."

The petition alleged full performance of the agreement on plaintiff's part, and that after Mr. Bower's death, Mrs. Bower had taken possession of the property and exercised control over it. Plaintiff asked for a decree impressing a trust in her favor upon one-half of the real estate until the death of Mrs. Bower. Plaintiff also alleged in the petition that her services for the last ten years she resided in the family were worth $ 200 a year, and asked judgment for $ 2,000. On the motion of defendant, the court compelled her to elect whether she would proceed upon the theory that she was entitled to a share of the property, or for the value of her services; she elected to rely upon the contract for a child's portion of the property. The petition contains allegations to the effect that at different times while plaintiff lived with Mr. and Mrs. Bower, both before and after her discovery that she was not their natural child, they ratified and confirmed the agreement made with her mother for her use and benefit, and further agreed with plaintiff that upon the death of either of them she would inherit the portion of the estate of the deceased foster parent in the same manner and to the same extent as provided by law in the case of a child whose parents die intestate.

The answer was a general denial, with the admission that since plaintiff was two years old she had lived in the family of the defendant and her deceased husband, during all of which time they had treated her kindly and indulgently as though she were their own child, but that she had never been legally adopted.

The only evidence offered by plaintiff tending to show what the arrangement was between her mother and Mrs. Bower consisted of the testimony of an elder sister of plaintiff, who said she heard the conversation between her mother and Mrs. Bower in which the plaintiff's mother stated she would surrender the custody and possession of the plaintiff to Mrs. Bower upon the condition that "they would educate, rear, treat and bestow upon her the affection of an own natural child," and that defendant stated she would accept the custody of plaintiff on those conditions, and that plaintiff "would thereafter inherit from them the same share of the property and estate which they owned, and in the same manner as though she were their own natural-born child." Several...