Torwegge v. O'Reilly

• Decision Date: 14 March 1922
• Parties: LILLIE MAE TORWEGGE v. GERALD B. O'REILLY, Trustee Under the Will of Mary Jane Torwegge; LAURA SIMCOKE, CHARLES M. SIMCOKE, MABEL GRANT, ROBERT GRANT and THOMAS P. KENNY, Appellants
• Court: Missouri Supreme Court

239 S.W. 116

292 Mo. 613

LILLIE MAE TORWEGGE v. GERALD B. O'REILLY, Trustee Under the Will of Mary Jane Torwegge; LAURA SIMCOKE, CHARLES M. SIMCOKE, MABEL GRANT, ROBERT GRANT and THOMAS P. KENNY, Appellants

Supreme Court of Missouri, First Division

March 14, 1922

Appeal from St. Louis City Circuit Court. -- Hon. Wilson A. Taylor Judge.

Affirmed.

Charles W. Bates and David Baron for appellants.

(1) The burden is upon plaintiff to establish her right to Francis W Torwegge's property by showing that she was his legally adopted daughter or that he had made a contract to adopt her the consideration of which she had performed. Grantham v. Gossett, 182 Mo. 651; Ashbury v. Hicklin, 181 Mo. 673; Wales v. Holden, 209 Mo. 552. (a) Inheritance flows naturally with the blood. Hockaday v. Lynn, 200 Mo. 466. And if its course is to be diverted, such result is only accomplished by rigid compliance with the law. Forrister v. Sullivan, 231 Mo. 373 to 376. (b) The widow is no less protected than the blood. The child had not been in the institution two years. Neither parent consented. Sec. 5250, R. S. 1899; Sec. 1675, R. S. 1909; In re Penny, 194 Mo.App. 698; Orey v. Moller, 142 Mo.App. 579; In Matter of Clements, 78 Mo. 355; Shearer v. Weaver, 56 Kan. 578; Ex parte Clark, 87 Cal. 638; Malaney v. Cameron, 98 Kan. 620; Ferguson v. Jones, 17 Ore. 204. It was not the intention of Mr. Torwegge, as evidenced by the deed of January 13, 1900, merely to adopt the plaintiff as his heir under Secs. 5246, 5247, 5248, R. S. 1899, and leave the right to her control and custody in the natural parents. Courts cannot make a new contract for him. Those sections do not apply to the deed in question. Fugate v. Allen, 119 Mo.App. 190; Gilkerson v. Railroad, 222 Mo. 204; McGrew v. Railroad, 230 Mo. 524; Ruschenberg v. Railroad, 161 Mo. 70, 84; State ex rel. v. Lindell Hotel Co., 9 Mo.App. 453; 2 Lewis' Suth. Stat. Const. (2 Ed.) sec. 491, p. 919. A person may be taken into the family and treated as a member of the family, taking the family name, thereby creating a family relationship, and yet not have been adopted, and therefore not entitled to the rights of a child. Fugate v. Allen, 119 Mo.App. 190; Nelson v. Poormans, 215 S.W. 753; Fitzpatrick v. Dooley, 112 Mo.App. 172. A court of equity will not furnish relief in case of a defective execution of a statutory power. In the case at bar the Society and Francis W. Torwegge defectively exercised the statutory power by omitting compliance with the elements required by the statute. R. S. 1899, sec. 5250; Allen v. Hornett, 116 Mo. 286; Stevens v. De La Vaulz, 166 Mo. 27. Since this instrument was inoperative, it cannot be construed as a contract to adopt plaintiff, and there can be no parol adoption without a contract. Grantham v. Gossett, 182 Mo. 658, 670; Wales v. Holden, 209 Mo. 558; Norwack v. Berger, 133 Mo. 35; Malaney v. Cameron, 98 Kan. 622. (3) Even though Mary Jane Torwegge has adopted plaintiff, that fact does not make plaintiff the adopted daughter of Francis W. Torwegge. Hockaday v. Lynn, 200 Mo. 456; Orey v. Moller, 142 Mo.App. 579. (4) As to Francis W. Torwegge, should the deed of January 13, 1900, be taken most favorably for plaintiff, it is and can be no more than an offer on his part to adopt plaintiff and was wholly without consideration up to the time of his death in September, 1901, when plaintiff was but three and one-half years old and twenty months after the date of the deed. Fugate v. Allen, 119 Mo.App. 190; Teats v. Flanders, 118 Mo. 660; Beach v. Bryan, 155 Mo.App. 33; Jaffre v. Jacobson, 48 F. 21. Plaintiffs' claim must be supported by evidence that can be relied upon with the utmost confidence, proving the existence of the contract, its terms and conditions and a substantial and meritorious compliance therewith, with such certainty and definiteness as to leave no room for reasonable doubt. Kinney v. Murray, 170 Mo. 700; Signaigo v. Signaigo, 205 S.W. 30. (5) Settlement of bona-fide disputes is a valid and sufficient consideration to support a contract of settlement, and particularly of family differences, and is favored by the courts. Such settlement was had in this case and should be sustained. Faust's Admx. v. Birner, 30 Mo. 414; Bunel v. O'Day, 125 F. 303; Owen v. Hancock, 38 Tenn. (1 Head.) 563; Wood v. Tel. Co., 223 Mo. 565; Troll v. Spencer, 238 Mo. 81; Mateer v. Ry. Co., 105 Mo. 351; Reilly v. Chouquette, 18 Mo. 226. Even though the court should hold that plaintiff was either legally adopted by Francis W. Torwegge or is entitled to rights to his property as if legally adopted, still there was a bona-fide difference between her and the defendants, Mabel Grant and Laura Simcoke, as to plaintiff's status and rights, based upon reasonable grounds. (6) Plaintiff accepted from defendants Mabel Grant and Laura Simcoke the benefits accruing to her under the settlement up to the time of bringing this suit, still retains them, does not offer to return them, and cannot repudiate the settlement nor maintain this suit. Whalen v. Reilly, 61 Mo. 565; Paquin v. Milliken, 163 Mo. 104; Dalpine v. Lume, 145 Mo.App. 556. (7) When without fraud practiced upon him, a person signs a contract, he is conclusively presumed to know its contents and to accept the terms thereof, and the fact that he did not read it does not alter the rule. Donnelly v. Trust Co., 239 Mo. 388; Johnston v. Life Ins. Co., 93 Mo.App. 580; Leicher v. Kenney, 98 Mo.App. 394. (8) There was no fraud perpetrated on plaintiff. Bishop on Con. (2 Ed.) sec. 683; Evans v. Foreman, 60 Mo. 449; Workman v. Campbell, 57 Mo. 53; Lammers v. Sewing Mach. Co., 23 Mo.App. 471. (9) Any act by which, with knowledge of the alleged fraud, a person treats the contract as subsisting, will be an affirmance precluding rescission. Bishop on Contracts (2 Ed.) sec. 683; Evans v. Foreman, 60 Mo. 449; Workman v. Campbell, 57 Mo. 53; Lammers v. Sewing Mach. Co., 23 Mo.App. 471.

Edward W. Foristel and Frank T. Hiemenz for respondent.

(1) The deed of adoption is valid. It created the relation of parent and child between the Torwegges and the plaintiff. One may adopt a child without the consent of its natural parents or any other person. Reinders v. Koppelmann, 68 Mo 499; In re Clemens, 78 Mo. 332; Clarkson v. Hatton, 143 Mo. 47; Hawarth v. Hawarth, 123 Mo.App. 303. (2) The plaintiff is a pretermitted heir, and as such inherited all of the real estate of which her foster father, Francis W. Torwegge, died seized, subject to his widow's dower, or to her right to take a child's share in lieu of dower. Not having elected to take a child's share in lieu of dower, she became a doweress as at common law, and became seized of an undivided third interest in his estate for life, and this interest terminated with her death. Bradley v. Bradley, 24 Mo. 311; Burch v. Brown, 46 Mo. 441; Hill v. Martin, 28 Mo. 81; Hargardine v. Pulte, 27 Mo. 423. (3) In all transactions between persons occupying relations, whether legal, natural, or conventional in their origin, in which confidence is inspired or exists, and trust is reposed by one in another, the burden of proof is thrown upon the person in whom the confidence and trust is reposed, and who has acquired an advantage, to show affirmatively not only that no deception was practiced therein, no undue influence used, but that all was fair, open, and voluntary, and that the transaction was well understood. Digman v. Romine, 141 Mo. 475; 2 Pom. Eq. sec. 947; Allore v. Jewell, 94 U.S. 506; Griffith v. Godey, 113 U.S. 89; Miller v. Simonds, 72 Mo. 669; Garvin v. Williams, 44 Mo. 465; Street v. Gass, 62 Mo. 229; Rankin v. Patton, 65 Mo. 416; Ford v. Hennessey, 70 Mo. 580; Ilgenfritz v. Ilgenfritz, 116 Mo. 429; Caspari v. Church, 12 Mo.App. 293; Cadwallader v. West, 48 Mo. 483; Bradshaw v. Yates, 67 Mo. 221; Garvin v. Williams, 50 Mo. 206; Harvey v. Sullens, 46 Mo. 147; Yosti v. Laughren, 49 Mo. 594; 1 Story's Eq. Jurs. secs. 312-14; Gay v. Gillilan, 92 Mo. 263-4; Martin v. Baker, 135 Mo. 503; Ennis v. Burhan, 159 Mo. 518; Kirchner v. Kirchner, 113 Mo. 296; Ryan v. Ryan, 174 Mo. 279; Obst v. Unnerstall, 184 Mo. 392; Alkord v. Skinner, L. R. Ch. Div. 145; Wright v. Carter, 1 Ch. 27; Bury v. Oppenheim, 26 Bea. 594; Savery v. King, 5 H. L. Cas. 627; Sharp v. Leach, 8 Jur. (N. S.) 1026; Thomas v. Whitney, 186 Ill. 225; Davis v. Strang, 86 Va. 793; Yordi v. Yordi, 91 P. 348. (4) Voluntary conveyances or conveyances for a grossly inadequate consideration to one standing in the relation of trust and confidence will be avoided in equity in all cases where they are of such a nature that a judicious friend, regarding the interests of the grantor, would not have advised them. McDonnell v. Build. Assn., 175 Mo. 274; Turner v. Turner, 44 Mo. 537; Cadwallader v. West, 48 Mo. 494-5; Albert v. Haeberly, 68 N. J. Eq., 664; Haydoch v. Haydoch, 34 N.J.Eq. 575; Prideaux v. Lonsdale, 1 D. C. & J. (N. S.) 433; Powell v. Powell, 1 Ch. 243; Bambregge v. Browns, L. R. 18 Ch. Div. 188; Hatch v. Hatch, 9 Ves. Jr. 292; Gillespie v. Holland, 48 Ark. 28. (5) A grossly inadequate consideration is of itself a badge of fraud in transactions between persons standing in confidential relations of any character, and of whatever origin. Dickson v. Kempinsky, 96 Mo. 252; McDonough v. Build. Assn., 175 Mo. 274; Turner v. Turner, 44 Mo. 537. (6) Withholding facts or information by a party whose duty requires him to speak is as much a fraud as an express fraudulent misrepresentation. 1 Black on Can. & Resc. secs. 58, 59. (7) Adopted children inherit as natural children; their rights are no greater or less; it is not necessary to inherit that one be specifically adopted as an heir at law. Fosburg v. Rodgers, 114 Mo. 132; Thomas v. Maloney, 142 Mo.App. 198. (8) In transactions between persons...