Taylor v. Hamrick

• Decision Date: 13 December 1939
• Docket Number: No. 36103.,36103.
• Citation: 134 S.W.2d 52
• Parties: TAYLOR v. HAMRICK et al.
• Court: Missouri Supreme Court

134 S.W.2d 52

TAYLOR v. HAMRICK et al.

No. 36103.

Supreme Court of Missouri, Division No. 1.

December 13, 1939.

Appeal from Circuit Court, Jefferson County; E. M. Dearing, Judge.

Suit by Mildred Taylor, nee Beeman, against E. J. Hamrick, as public administrator of Jefferson county, Mo., having in charge as such the estate of Madge M Beeman, deceased, and others to enforce an alleged oral contract of adoption. From an adverse decree, plaintiff appeals.

Affirmed.

L. H. Steffen, of St. Louis, and R. E. Kleinschmidt, of Hillsboro, for appellant.

Frank Dietrich, of Hillsboro, and Edgar & Matthes, of De Soto, for respondents.

DALTON, Commissioner.

This is a proceeding in equity by which plaintiff seeks to enforce an alleged oral contract of adoption. Plaintiff claims that the oral contract of adoption was entered into between plaintiff's father and one Madge M. Beeman, and that said contract was fully performed by plaintiff and her father. It is admitted that Madge M. Beeman died seized and possessed of certain real estate in Jefferson County, Missouri. The heirs and devisees of Madge M. Beeman (hereinafter referred to as the deceased), as well as the administrator of her estate, were made defendants. The trial court found that no such contract was entered into between deceased and plaintiff's father; that the plaintiff was not the adopted child of the deceased; that plaintiff was not entitled to the relief prayed for and had no legal or equitable rights in the real estate described or in the other assets of the estate of the deceased. Motion for a new trial was filed and overruled and plaintiff appealed.

Plaintiff, here, contends that the court erred in failing to find that there had been a valid oral contract of adoption, and in failing to find that plaintiff was the adopted child of the deceased. This case being in equity, it is reviewable de novo on this appeal and we will pass upon the weight of the evidence. "However, this court will usually defer to the findings of the chancellor, especially where there is conflicting verbal testimony involving credibility of witnesses who appeared before him, except when convinced that his findings are against the weight of the evidence." Shaw v. Butler, Mo.Sup., 78 S.W. 2d 420, 421; Kingston v. Mitchell, Mo. Sup., 117 S.W.2d 226, 228.

Plaintiff's evidence tended to show that Silas Beeman, plaintiff's father, was divorced from plaintiff's mother and thereafter in September 1917, he was married to deceased. Plaintiff was then about 10 years of age and was residing with her mother near Coulterville. After the death of plaintiff's mother in 1919, the plaintiff made her home with her father and her stepmother. Beeman testified that he and his wife went after the child, and that "directly after she got the girl home," the deceased asked him if he would let her adopt the girl. He quoted the deceased as saying: "If I did adopt her, she would be mine, and I would feel more like a mother to her." He testified that he told deceased he was willing for her to adopt the child; that deceased treated the child "just as nice as she could," and showed affection for her; that plaintiff was a witness against him in 1925 at the time he sued deceased for divorce; that after the divorce plaintiff resided with the deceased until plaintiff was married; that plaintiff called deceased "Mama" and deceased called plaintiff "Daughter."

On cross-examination Beeman testified (referring to deceased), she "wanted to know if I would let her adopt the child and she said she felt more like a real mother to her, and that was the reason, and I told her to go ahead and do it if she wanted to * * * I thought I could go before a Justice of the Peace or a Notary Public, I did not know what had to be done." The record further shows the following: "Q. Did you talk to Mrs. Beeman about going to some court about it? A. Yes, sir, we talked about it a few times but not very often. * * * Q. But you never did see any further about it? A. No, sir."

Walter R. Getty, witness for plaintiff, testified that subsequent to 1927 deceased introduced him to plaintiff and advised him that plaintiff was her daughter; that plaintiff was then married; that on one occasion he inquired about plaintiff and deceased stated that Mildred (referring to plaintiff) "was all she had and would get what she had." This witness further testified that he, his wife, and "all of us" referred to deceased as "Ma" Beeman.

Frances Getty, wife of the preceding witness, testified that she met the deceased in 1926 or 1927. Mrs. Getty and her husband were boarding and rooming with deceased. Beeman was then divorced from deceased. This witness testified that in introducing plaintiff deceased said, "I want you to meet my daughter Mildred;" that deceased always spoke to plaintiff as "Mildred," and of her as her "daughter;" that plaintiff referred to deceased as "Mama;" that the boarders called deceased "Ma"; that deceased acted like a mother to all of them; that deceased spoke of her "family" and of her "daughter," and said, "she had raised her daughter and she wanted to adopt her as soon as she got to it * * *;" that deceased said, "Mr. Beeman didn't think it was necessary, in order to adopt her, to do anything more"; that deceased "didn't want him to have anything to do with it." Another witness, Charles Drennan, met deceased about 1924. He stated that deceased would always say something to him about her daughter and that he understood her to say, "she had fixed her business so that Mildred was going to get it all." He said plaintiff referred to deceased as "Mother" and deceased to plaintiff as "Mildred, my daughter." Another witness, who knew deceased after 1931, testified that deceased called plaintiff "daughter," and he did not know the difference until one day deceased said "she wanted to adopt Mildred and Mr. Beeman said it wasn't necessary." Other witnesses who knew plaintiff after her marriage stated that deceased called plaintiff "daughter" and plaintiff called deceased, "Ma", "Mama", "Mom" or "Mother," and they assumed that deceased was her real mother. The record shows that after plaintiff's marriage, the deceased and plaintiff continued to visit and be in rather close touch with each other and very friendly.

The deceased operated a 14 room boarding house in St. Louis at the time she married plaintiff's father. After securing a divorce from him she again engaged in the business of keeping boarders and roomers. She was known to her boarders as "Ma" Beeman.

Plaintiff offered in evidence an application for a $500 life insurance policy executed by deceased on July 3, 1933. In this application the plaintiff was designated as the proposed beneficiary and her relationship to deceased was stated as "daughter". The insurance agent who took the application stated that deceased told him that she wanted to make plaintiff "beneficiary for the reason that the rest of her estate was taken care of and she wanted Mrs. Taylor to have the money at the time of her death." The agent did not know plaintiff was not her daughter until the October, following, when deceased advised him that "she had gotten mad" at plaintiff and was going to change the beneficiary. This she did on October 31, 1933.

Defendants offered in evidence the will of deceased, written December 11, 1920, and admitted to probate on April 30, 1935. This will made no mention of the plaintiff, but did refer to Silas Beeman as follows: "My husband, Silas Beeman, I leave $1.00 as he has threatened to kill me so many times and I do not think he deserves any more." The major portion of her estate was left to defendant Eastman, an uncle of deceased. Defendants also offered Beeman's petition for divorce, and deceased's cross bill, as filed in the Circuit Court of Washington County in 1925. Neither pleading made any mention of the plaintiff. One of defendants' witnesses testified that she was present, when the said application for insurance was made by deceased, and that deceased had stated to the insurance agent, that plaintiff was not her daughter but was her stepdaughter. In rebuttal, both the agent who took the application, and the assistant superintendent who checked it, claimed that deceased referred to plaintiff as her daughter. Other witnesses for defendants, close friends of the deceased, testified that they had not heard, during the lifetime of deceased, anything at all about any alleged agreement to adopt plaintiff. They had observed nothing in the conduct of plaintiff or of deceased to indicate that there had been an adoption of plaintiff. The testimony of one of these witnesses does, however, show the following: "Q. Did you ever hear Mrs. Beeman say anything or talk about Mildred Taylor? A. She said it didn't make any difference because the law automatically gave it to her." This statement was not further explained.

If plaintiff was in fact the adopted daughter of the deceased, then, since plaintiff was not named in the will, the deceased died intestate as to the plaintiff. The rule applies to an adopted child as well as to a natural child. Remmers v. Remmers, Mo. Sup., 239 S.W. 509, 514; Section 525, R.S. 1929, Mo.St.Ann. § 525, p. 318. However from the view we take of this case a disposition of the question of adoption will dispose of the case.

In Benjamin v. Cronan, 338 Mo. 1177, 93 S.W.2d 975, loc. cit. 979, this court said: "An oral agreement to adopt is within the statute of frauds, Wales v. Holden, 209 Mo. 552, 108 S.W. 89; Drake v. Drake, 328 Mo. 966, 43 S.W.2d 556; Kidd v. St. Louis Union Trust Co., 335 Mo. 1029, 74 S.W.2d 827, loc. cit. 831, but, notwithstanding the statutory law relative to adoption of children, a court of equity will take the necessary steps `to protect the interest of a child in a case where one has expressly agreed to adopt the child, or by his acts and conduct has placed himself in a position where it would be inequitable to permit him to assert...