Stillman v. Austin

• Citation: 148 S.W.2d 573
• Decision Date: 01 February 1941
• Docket Number: 36875
• Parties: STILLMAN v. AUSTIN et al
• Court: Missouri Supreme Court

148 S.W.2d 573

STILLMAN v. AUSTIN et al

No. 36875

Supreme Court of Missouri, Second Division

February 1, 1941

Rehearing Denied March 12, 1941.

Omer H Avery and Creech & Creech, all of Troy, for appellants.

Williams & Huston, of Troy, for respondent.

OPINION

WESTHUES, Commissioner.

George Stillman filed this suit in the circuit court of Lincoln county, Missouri, seeking a decree declaring that he be the adopted son of Lucy Elstroth, deceased. The trial court entered a decree in plaintiff's favor, and defendants appealed.

Lucy Elstroth died testate possessed of real estate and personal property. By her will she left the bulk of her estate to the defendant, Emma Austin, who was the legally adopted child of Lucy Elstroth and her husband, Henry Elstroth. The husband, Henry Elstroth, died in the year 1926, also testate. By his will he left plaintiff $ 50, Emma Austin $ 50, and the bulk of the estate to his wife, Lucy. Plaintiff, George Stillman, was not mentioned in the will of Lucy Elstroth. If the decree of the trial court be affirmed the plaintiff will inherit one-half of the estate of Lucy Elstroth. The defendants in the case, respondents here, are: Emma Austin, executrix; Charles Franke, executor, and the beneficiaries under the will of Lucy Elstroth. The principal point upon which a reversal of the judgment is sought is, that the evidence was insufficient to support the decree of the trial court.

We will attempt to relate a brief history of the case as established by plaintiff's evidence. Henry Elstroth and his wife, Lucy, lived on a farm near Winfield, Missouri. They had no children. In June, 1908, they went to the Christian Orphan's Home in St. Louis, Missouri, for the purpose of getting a boy. They selected the plaintiff, John Stillman, eight and one-half years old. Plaintiff testified that Henry Elstroth said to him: 'How would you like to go out and live on the farm and be our little boy?' To which he, plaintiff, replied: 'I would like that very much.' John Stillman did not remember his parents or what became of them. He did recollect staying with some people he called 'Grandpa' and 'Grandma'. He had been in the orphan home only a short time when he was delivered to the Elstroths. It was the custom of the orphan home to require applicants for children to sign an application. Elstroth signed such an application, but it was lost, and its contents, so far as affecting the merits of this case, were left unknown. The officers of the institution were unable to shed any light on the subject of whether the Elstroths in the application agreed to adopt the plaintiff. A card which was found in the records at the home revealed a short record of Stillman as follows:

'Mr. Huston: We offer in evidence Plaintiff's Exhibit A which is the card referred to.

'The Court: Admitted.

'Plaintiff's Exhibit A is read in evidence and is in words and figures following:

'Christian Orphans Home Foster Home Card, Name of Foster Home, Elstroth, Mrs. Henry, Address, Winfield, Missouri, name of the child, John Stillman, dismissed 1908, and in the upper right hand corner 2, 4, 7.'

Plaintiff lived in the home of the Elstroths, except for a short period which will be referred to later, until he was about twenty-two years of age. He went by the name of George Elstroth (note that his name was changed from John to George), was christened in the Evangelical church of which church the Elstroths were members, and was also confirmed in that church. Plaintiff testified that when he was christened Mrs. Elstroth said to him: 'You are our boy and you have been using our name ever since you came here, how about going to church and being christened in our name and make it your legal name?' The evidence showed that plaintiff called Mr. and Mrs. Elstroth 'Papa' and 'Mama'. He was introduced to neighbors and enrolled in school as George Elstroth and was frequently referred to by the Elstroths as 'our boy'. Plaintiff helped do the work on the farm just as other boys in the neighborhood did. He testified, and others testified, that he was always treated as a member of the Elstroth family. One witness stated he heard the Elstroths say they intended to adopt plaintiff. In the year 1918, plaintiff desired to join the army, but Mr. Elstroth advised him to stay on the farm. In July of that year plaintiff enlisted in the United States Navy and was placed in reserve. He did not inform the Elstroths of leaving and they were much concerned about his disappearance and made a search for him without success. After the war was over plaintiff wrote the Elstroths of his whereabouts and they asked him to return, which he did. Thereafter he attended the Sweeney Auto School in Kansas City, Missouri, Elstroth paying the expense. Plaintiff testified that on various occasions when the Elstroths spoke of money matters they told him: 'You will have to learn to handle money or you will never be able to keep it. You and Emma will get all we have some day.'

We have related substantially all of the facts proven which we deem favorable to plaintiff. The rule in cases of this nature, as to the sufficiency of the evidence to justify a decree of adoption, is recognized to be substantially as stated in 1 C.J. 1380, sec. 30, 2 C.J.S., Adoption of Children, § 26.

'Where the contract relied upon is oral, it has been said that the evidence must be overwhelming in its probative force, leaving no room for reasonable doubt.'

This court has consistently adhered to that rule. See Grantham v. Gossett, 182 Mo. 651, 81 S.W. 895; Bland v. Buoy, 335 Mo. 967, 74 S.W.2d 612, loc. cit. 619, 620 (3-5); Benjamin v. Cronan, 338 Mo. 1177, 93 S.W.2d 975, loc. cit. 979 (1, 2); Furman v. St. Louis Union Trust Co., 338 Mo. 884, 92 S.W.2d 726.

The evidence which we have related is not very convincing as to whether there was a contract or agreement to adopt at the time the Elstroths took the plaintiff from the home at St Louis. The evidence does show that the Elstroths were very good people; that they were at all times solicitous about the welfare of plaintiff and treated him as a member of the family. There were facts proven which we deem inconsistent with the theory that there was an agreement to adopt. ...