Thornton v. Miller

• Decision Date: 10 June 1941
• Docket Number: 37247
• Citation: 151 S.W.2d 1101
• Parties: THORNTON v. MILLER et al
• Court: Missouri Supreme Court

151 S.W.2d 1101

THORNTON v. MILLER et al

No. 37247

Supreme Court of Missouri, Second Division

June 10, 1941

George V. Farris, of Joplin, and Frank R. Birkhead, of Carthage, for appellants.

Rex V McPherson and Robert Stemmons, both of Mount Vernon, for respondent.

OPINION

WESTHUES, Commissioner.

Respondent, Winnie Thornton, filed this suit in Jasper county, seeking to be declared the adopted daughter of Harry and Ella Shelton, husband and wife, who lost their lives on May 23, 1937, in a collision at a railway crossing. The trial court granted plaintiff the relief prayed for and the defendants appealed.

The defendants named in the suit were all of the heirs at law of Harry and Ella Shelton. At the time of their death the Sheltons owned about four hundred and twenty acres of land and in addition thereto personal property valued at about $ 6,000. Plaintiff was the daughter of G. M. Shelton, a brother of Harry Shelton. G. M. Shelton and his wife had six children. When plaintiff was eight or nine years of age her mother died. Shortly thereafter she was taken into the home of Harry and Ella Shelton and remained there for about twelve years when she was married to Thomas Thornton. Harry and Ella Shelton had no children of their own. Plaintiff's claim was based on what occurred at the time she was taken from her home by her uncle and aunt. Her father, G. M. Shelton, testified for her at the trial. Concerning the alleged contract to adopt, his evidence was as follows:

''My wife died in 1907 when I was residing down in the edge of Bower's Mill. At the time of my wife's death, Harry and Ella Shelton resided on the farm. My wife was Winnie Thornton's mother and I had five other children. Harry lived in my home several years prior to his marriage. He stayed with Winnie's mother and me prior to his marriage for several years. Harry Shelton and Ella Shelton came to our home two or three times to take away my daughter Winnie. I think she was either 8 or 9 years old; something like that.

''Q. Now, I will ask you what, if anything, either or both of them said to you they would do if you let Winnie go to them?'' * * *

''A. They said they would make her their heir.

''Q. A little bit louder. A. They said they would make her their heir.

''Q. Who said that? A. Both of them said it.

''Q. Well, did you let Winnie go to their home? A. I sure did, I had a proposition on my hands.''

It was conceded that plaintiff remained with her uncle and aunt until she was married; that while there she attended grade school and also high school; that she worked in the home and on the farm; that the Sheltons were very much attached to her and she to them. In other words the relations were very congenial.

Plaintiff introduced evidence, by a number of witnesses, that the Sheltons often referred to her as 'our little girl' or 'our daughter'. A man named Qualls testified that he sold the Sheltons a Delco Light Plant and while at the Shelton home discussed an adoption case that seemed to have been pending about that time and which was settled for $ 15,000; that Shelton said the boy 'was foolish for settling for $ 15,000.00 and he just as well have had all of it.' Qualls further testified as follows: ''* * * and he talked on a little bit and he said I have got a case just like that he said we raised a girl, and he went on talking about it, he said that they had raised this girl, and she came to their house when she was quite young, and made her home there, and he said it was the same case.''

On another occasion Shelton is alleged to have said that the girl, meaning plaintiff, would be their legal heir unless they made a will leaving their property to someone else. The evidence does not reveal just when these conversations took place, but it is evident that they occurred long after plaintiff had left the Sheltons and after the year 1930, in which year the Sheltons visited plaintiff and a number of other nieces and nephews in the state of California. Qualls had never seen plaintiff. Another witness, by the name of Jess Craig, testified that on Friday before the Sunday when the Sheltons met with the fatal accident he was working for Harry Shelton at a sheep barn or shed when the following conversation occurred: 'I says to Mr. Shelton, I says, 'Harry, it looks like you would cut a door in the east end so we wouldn't have that manure to carry so far,' and he said, 'Well, I have put up with it this way for several years, and I figure when I am through with it my son-in-law can fix it to suit himself.' And he turned around and stopped we stopped working we wasn't working at that time; he says, 'You didn't know I had a son-in-law, did you?' I says, 'No, Mr. Shelton, I didn't know you had any children,' He says, 'Well, you see, this girl stayed with me so many years,' I believe that he said, 'Twelve years,' and says, 'I feel just like a father to her,' and he says, 'I believe that if there ever was a man that had a fatherly love for his child, why I did for her.' That was all that was said.' This witness, on cross-examination, stated that after he heard of the death of the Sheltons he figured there would be some trouble so he reduced to writing the conversation he had had with Shelton for fear that he might forget; that he did this before any suit was filed or before he had heard of any suit, but he supposed that there would be some trouble. He further testified on cross-examination:

'Neither Harry or Ella ever told me they had adopted Winnie or agreed to adopt her. Neither one of them ever told me anything about adopting her, or having agreed to adopt her. * * *

'When you (Mr. Birkhead) and Mr. McCall came to see me I told you I wrote down what I knew, and that I had it in my possession, and I told you that the defendants had better not use me, and that I would be damaging to them. I didn't tell you what was on the paper; I wouldn't tell you. You asked me to tell you what I knew about the case and I told you that I wouldn't do it. I told you I would tell it on the witness stand. * * *

'Mrs. Thornton is the only one I ever talked to. I didn't think I told her about the piece of paper I had. I certainly told her what I knew about the case, simply because I figured it would be to her advantage. I figured she had the help coming.'

All of the witnesses agreed that plaintiff referred to Harry and Ella Shelton as Uncle Harry and Aunt Ella. There was also testimony by a number of witnesses that the Sheltons indicated they intended to leave their property to plaintiff. Other witnesses testified that the Sheltons at times talked about adopting plaintiff.

The parties, appellants and respondent, are in agreement as to the law governing actions of this nature. Two well established rules of law must be considered in determining the issues presented: First, that an oral contract of adoption need not necessarily be proven by direct evidence but may be shown by circumstances such as the actions conduct and admissions of the alleged adopting parties. Drake v. Drake, en banc, 328 Mo. 966, 43 S.W.2d 556, loc. cit. 560 (6,7). Second, that the proof, in order to authorize the enforcement of an oral contract of adoption, must be clear, cogent and convincing and of such a character as to leave no reasonable doubt in the mind of the chancellor. Drake v. Drake, supra; Stillman v. Austin, Mo.Sup., 148 S.W.2d...