Taylor v. Coberly

• Decision Date: 21 May 1931
• Docket Number: No. 29010.,29010.
• Citation: 38 S.W.2d 1055
• Parties: ZELLA TAYLOR v. GEORGE W. COBERLY, R.J. COBERLY, VAN E. COBERLY, J.H. COBERLY, MOLLIE WILSON, LENORA STOUT, JOHN STOUT, WILLIAM STOUT, MARY FRANCES WISE and I.L. WISE, Appellants.
• Court: Missouri Supreme Court

38 S.W.2d 1055

ZELLA TAYLOR v. GEORGE W. COBERLY, R.J. COBERLY, VAN E. COBERLY, J.H. COBERLY, MOLLIE WILSON, LENORA STOUT, JOHN STOUT, WILLIAM STOUT, MARY FRANCES WISE and I.L. WISE, Appellants.

No. 29010.

Supreme Court of Missouri. Division One.

May 21, 1931.^*

Appeal from Livingston Circuit Court. — Hon. Ira D. Beals, Judge.

AFFIRMED.

Kitt & Marshall for appellants.

(1) An oral contract to adopt a child is void under the Statute of Frauds. Barnett v. Clark, 252 S.W. 628. (2) The court erred in finding for plaintiff that the contract pleaded was proven and established. Courts of equity do grant relief in the face of the Statute of Frauds; but only when the proof of the very contract alleged in the petition and of the terms and conditions thereof is so clearly established by evidence so clear, cogent, and convincing as to leave no reasonable doubt in the mind of the chancellor. Lamb v. Feehan, 276 S.W. 79; Barnett v. Clark, 252 S.W. 628; Wales v. Holden, 209 Mo. 558; Walker v. Bohannan, 243 Mo. 119; Kinney v. Murray, 170 Mo. 674; McKee v. Higbee, 180 Mo. 263; Grantham v. Gossett, 182 Mo. 651; Russell v. Sharp, 192 Mo. 270; Berg v. Morean, 199 Mo. 416; Hayworth v. Hayworth, 236 S.W. 28; Gipson v. Owens, 286 Mo. 53; Arfstrum v. Baker, 214 S.W. 859. (3) The particular contract as alleged in the petition must be proven and the proof of its terms and conditions must be clear, cogent and convincing as to leave no doubt that the contract alleged was made. It will not satisfy the requirement that there was an understanding of an indefinite character, and the court erred in holding the evidence established and proved the contract pleaded. Grantham v. Gossett, 182 Mo. 671; Lamb v. Feehan, 276 S.W. 78; Hayworth v. Hayworth, 236 S.W. 28. (4) The conduct and acts of the Coberlys are as attributable and referable to some other purpose or motive, as to that of the alleged contract, and would tend to a conclusion that they were voluntary and unilateral rather than necessarily attributable to the terms of any definite contract. Hayworth v. Hayworth, 236 S.W. 28; Barnett v. Clark, 252 S.W. 628; Lamb v. Feehan, 276 S.W. 78; Wales v. Holden, 209 Mo. 576. (5) A contract cannot be established by conclusions. The testimony of John F. Miller does not establish a contract or agreement by the Coberlys to adopt plaintiff, and the court erred in receiving and holding the conclusions of said Miller were sufficient to establish the contract pleaded. Barnett v. Clark, 252 S.W. 626; Asbury v. Hicklin, 189 Mo. 676. (6) Recovery is always dependent on the cause of action stated in the petition. Henry County v. Bank, 208 Mo. 226; Cullinane v. Grant, 294 Mo. 423; Williams v. Hall, 230 S.W. 127; Brown v. Fickle, 135 Mo. 410. (7) The court erred in receiving the evidence of John F. Miller plaintiff's father as to the alleged contract of adoption between said John F. Miller and the Coberlys. Miller was incompetent to testify as to said alleged contract, the Coberlys, the other parties to the contract, being dead. Sec. 5410, R.S. 1919; Asbury v. Hicklin, 181 Mo. 671.

Nolan M. Chapman, Don Chapman and Arthur J. Mellott for respondent.

(1) Upon appeals from the decrees of the court in chancery cases, the Supreme Court usually defers to the chancellor's judgment. Brown v. Fickle, 135 Mo. 405; Gipson v. Owens, 286 Mo. 53, 226 S.W. 856; Kinney v. Murray, 170 Mo. 674; Craddock v. Jackson (Mo. Sup.), 223 S.W. 924. (2) Equity will not permit one party to an oral contract of adoption to invoke the Statute of Frauds when to do so would work a fraud upon the other. Farrar v. Patton, 20 Mo. 81; Gupton v. Gupton, 47 Mo. 37; Barnett v. Clark, 252 S.W. 625; Grantham v. Gossett, 182 Mo. 651; Hayworth v. Hayworth, 236 S.W. 26; Gipson v. Owens, 286 Mo. 33, 226 S.W. 856; Arfstrum v. Baker, 214 S.W. 859; Kay v. Niehaus, 298 Mo. 205, 249 S.W. 625; Lynn v. Hockaday, 162 Mo. 111; Hollaway v. Jones, 246 S.W. 590; Fishback v. Prock, 242 S.W. 962; Kerr v. Smiley, 239 S.W. 501. (a) The act of adoption gave the child no right of inheritance not subject to the right of testamentary disposition. It simply constituted her an heir and gave her the same right to support and maintenance and proper treatment as is enjoyed by natural children. Insofar as the instrument possessed any of the elements of a contract, it was a contract between the state and the adopting parent for the use and benefit of the child. Hollaway v. Jones, 246 S.W. 590; Rauch v. Metz, 212 S.W. 360. (b) The surrender by the blood father of all the control of the child, and the services and companionship of the latter, constituted a valuable consideration for the promise of the Coberlys, that they "should have the absolute and exclusive control and custody of and would adopt plaintiff as their child, and would raise plaintiff as their very own child" and make her their heir. Healy v. Simpson, 113 Mo. 346; Lynn v. Hockaday, 162 Mo. 111; Rauch v. Metz, 212 S.W. 366; Hollaway v. Jones, 246 S.W. 588. It is unnecessary that the word "adopt" should be used in connection with the incurring of such liability. Lynn v. Hockaday, 162 Mo. 111; Dillman v. Davison, 239 S.W. 505; Fisher v. Davidson, 271 Mo. 195; Remmers v. Remmers, 239 S.W. 509; Hollaway v. Jones, 246 S.W. 590; Kay v. Niehaus, 298 Mo. 206. (2) It does not matter whether we regard the act of adoption as a status voluntarily assumed or as a contract of which the child is the beneficiary. Their respective rights, obligations and duties are the same and are enforced in courts of equity. Dillman v. Davison (Mo. Sup.), 239 S.W. 507; Remmers v. Remmers (Mo. Sup.), 239 S.W. 848; McCary v. McCary (Mo. Sup.), 239 S.W. 924; Fisher v. Davidson, 271 Mo. 195, 195 S.W. 1024; Lynn v. Hockaday, 162 Mo. 111; Grantham v. Gossett, 182 Mo. 651; Sharkey v. McDermott, 91 Mo. 647. (3) The contract or agreement to adopt may be shown by the acts and admissions of the parties. Roberts v. Roberts, 223 Fed. 776, 138 C.C.A. 103; Hollaway v. Jones, 246 S.W. 593; Rauch v. Metz, 212 S.W. 363; Johnson v. Antry, 5 S.W. (2d) 407; Kay v. Niehaus, 298 Mo. 205. (4) The contract to adopt may be inferred, if the statements and conduct of the adopting parents are such as to furnish clear and satisfactory proof that an agreement of adoption must have existed, and it is not necessary that the court first have direct proof of the making of the contract. Kay v. Niehaus, 298 Mo. 205; Horton v. Troll, 183 Mo. App. 690, 167 S.W. 1084; Sharkey v. McDermott, 91 Mo. 647; Healy v. Simpson, 113 Mo. 340; Nowack v. Berger, 133 Mo. 24; Lynn v. Hockaday, 162 Mo. 111; Hockaday v. Lynn, 200 Mo. 456; Westerman v. Schmidt, 80 Mo. App. 344; Thomas v. Maloney, 142 Mo. App. 193; Roberts v. Roberts, 223 Fed. 776, 138 C.C.A. 103; Hollaway v. Jones, 246 S.W. 593; Rauch v. Metz, 212 S.W. 363; Johnson v. Antry, 5 S.W. (2d) 407. (5) The proceeding is not strictly a suit upon a contract. It simply involves the recognition of a status which, if it exists, is an accomplished fact. Rauch v. Metz, 212 S.W. 357; Hollaway v. Jones, 246 S.W. 588; Dillman v. Davison, 239 S.W. 507; Remmers v. Remmers, 239 S.W. 848. (a) The status was complete and there was full performance of the contract when plaintiff remained with Walter W. Coberly and Lou Coberly until her marriage. Rauch v. Metz, 212 S.W. 357; Craddock v. Jackson, 223 S.W. 925; Remmers v. Remmers, 239 S.W. 848. (b) The status of plaintiff as an adopted child being once fixed cannot be forfeited by any subsequent act of plaintiff or the adoptive parent. Rauch v. Metz, 212 S.W. 357; Dillman v. Davison, 239 S.W. 507; Remmers v. Remmers, 239 S.W. 848. (6) The conduct and acts of the Coberlys are attributable and referable only to the contract and agreement alleged in plaintiff's petition. Plaintiff was given to the Coberlys, took and filled the place of an only child in the family, both in fact and in sentiment, until long after she attained the age of legal independence and responsibility; her natural parent abandoned her control, and the Coberlys became in fact and in equity by adoption her parents. Hollaway v. Jones, 246 S.W. 590; Lamb v. Feehan, 276 S.W. 78; Shelp v. Merc. Co., 15 S.W. (2d) 818; Johnson v. Antry, 5 S.W. (2d) 405; Lynn v. Hockaday, 162 Mo. 125; Kay v. Niehaus, 298 Mo. 205; Fisher v. Davidson, 271 Mo. 195. (7) The court did not err in receiving the evidence of plaintiff's father as to the contract of adoption between him and the Coberlys, he being a competent witness. Signaigo v. Signaigo, 205 S.W. 23; Craddock v. Jackson, 223 S.W. 924; Jenkins v. Gordon, 256 S.W. 136; Wagner v. Binder, 187 S.W. 1151.

FERGUSON, C.

This is a suit in equity seeking a decree of the court declaring the plaintiff to be the adopted daughter, with all the rights incident thereto, of Walter W. Coberly and Lou Coberly, husband and wife, both deceased. Lou Coberly died, intestate and without issue, on the 6th day of December, 1917, and at the time of her death was the owner as tenant in common with her husband of an undivided interest in certain real property situate in Livingston County, Missouri. Walter W. Coberly died, intestate and without issue, on the 17th day of October, 1924, seized and possessed of personal property of an alleged value of $1,800 and certain real property situate in Livingston County, Missouri.

The defendants are the collateral heirs of the Coberlys. The petition alleges a contract of adoption as follows:

"That the mother of this plaintiff died at the time of her birth. That shortly after plaintiff's birth, when she was just a few weeks old, the father of this plaintiff placed her in the custody of Walter W. Coberly and Lou Coberly, husband and wife, who were childless and never had any children except this plaintiff by adoption. That soon after plaintiff's father had placed her in the custody of Walter W. Coberly and Lou Coberly, he (John F. Miller) for and on behalf of plaintiff made a contract and agreement with said Walter W. Coberly and Lou Coberly, for...