Tuttle v. Winchell

• Citation: 178 N.W. 755,104 Neb. 750
• Decision Date: 19 June 1920
• Docket Number: 21015
• Parties: GEORGE H. TUTTLE, APPELLEE, v. ISABELLE WINCHELL, APPELLANT
• Court: Supreme Court of Nebraska

178 N.W. 755

104 Neb. 750

GEORGE H. TUTTLE, APPELLEE, v. ISABELLE WINCHELL, APPELLANT

No. 21015

Supreme Court of Nebraska

June 19, 1920

APPEAL from the district court for Hamilton county: GEORGE F CORCORAN, JUDGE. Affirmed.

AFFIRMED.

Hainer Craft & Edgerton, for appellant.

Fawcett Mockett & Walford and M. F. Stanley, contra.

DORSEY, C. LETTON, J., dissents.

OPINION

DORSEY, C.

The plaintiff brought this suit, and obtained a decree therein in the court below, for the specific performance of an alleged parol agreement by Earl Tuttle and Catherine Tuttle, his wife, to adopt the plaintiff and to make him their heir. The only other interested party is Isabelle Winchell, the daughter of Mr. Tuttle, in whom the interests of all the heirs at law are merged, and who prosecutes this appeal. The effect of the decree is to vest her with the title to the undivided half of the property and the plaintiff with the remaining half; whereas, if the plaintiff should not prevail, she would be entitled to all of it. Mr. Tuttle died in 1914, and his wife in 1917, both intestate.

The appellant, Isabelle Winchell, admits that the Tuttles took the plaintiff and reared him, but denies that they entered into any contract to adopt him or to make him an heir. She also alleges that his behavior toward Mr. and Mrs. Tuttle was not such as was due from a son to his parents, and that he is thereby precluded from recovery.

In 1881 the plaintiff's mother, Ellen Purdy, widow of David Purdy, his father, was living in Hamilton county, Nebraska, at the home of an aunt, and had the little boy, then between two and three years old, with her. It appears that she was working out, and, as her aunt was old and infirm, there was no one to give the child proper care during her absence. Earl Tuttle and his wife were well-to-do people, owning and residing upon a quarter section of land in the neighborhood.

The circumstances surrounding the taking of the boy by the Tuttles are related by the plaintiff's mother in her deposition taken in California in January, 1919. Her name then was Ellen Criddle; she having married again shortly after the Tuttles took the boy. She testified that, having heard she was trying to get some one to look after the boy, they called upon her, stating that they wanted him; that they would take him and educate and provide for him as their own; that they would have the papers made out and adopt him, and that he should live with them the same as the daughter and be an equal heir with her; that she did not want to give up the boy, but thought it was better for him to have a home, and that she accordingly assented to the proposition of the Tuttles. About a week later, while she was away working, they came, she said, and took the boy away. She lived in the neighborhood until the boy was grown, but never after that asserted any right or control over him. The Tuttles, she said, never complained to her about the boy or asked that he be taken back.

It appeared, without substantial dispute, that the boy remained a member of the Tuttle family until he had grown to manhood; that he was known in the neighborhood and at school as George H. Tuttle; that he addressed Mr. and Mrs. Tuttle as his parents, and that they treated him the same way and on the same footing as the daughter, Isabelle. In 1885 the daughter, then 24 years of age, married I. H. Winchell and left the Tuttle home. Thereafter the plaintiff was the only child in the household. After he became 21 the plaintiff left the Tuttle home, with the approval and consent of Mr. and Mrs. Tuttle, so far as the record shows.

As tending to discredit the testimony of Ellen Criddle relative to the contract, three women, who lived in the neighborhood at the time, testified for the defendant to statements made by the plaintiff's mother to the effect that the Tuttles had not adopted the boy, but intended only to take care of him. Letitia Wright testified that Mrs. Purdy told her that she had not made out adoption papers because she might want the boy herself after she married Criddle. Alice Chaney testified that Mrs. Purdy told her the Tuttles were not going to adopt him, because it would not look well to change his name. The trial court likewise admitted, over the plaintiff's objections, the testimony of three witnesses that Mrs. Tuttle had told them that she and her husband had not adopted George and did not intend to, but had only taken him to raise. Charles Fry also testified, over objection, that Mrs. Tuttle told him the boy had never been legally adopted; "that they thought they would when they first got him, but that they didn't do it."

It is upon the testimony of Ellen Criddle that the establishment of the alleged contract of adoption principally depends. The defendant assails the credibility of her story upon the ground that she detailed language used by Mr. and Mrs. Tuttle with too much precision, in view of the fact that 38 years had elapsed since their conversation, and that the language which she says they used was so nearly like that required to make a case for the plaintiff as to indicate a desire to manufacture testimony to help the plaintiff. It is said, moreover, that her story is improbable, for the reason that a mother situated as she was, incumbered with a child that she was without means of properly caring for, who had been trying to get someone to take it, was not likely to have insisted upon an agreement to adopt, but would have been glad to shift her responsibility to any suitable person, who would agree merely to assume the custody, nurture and education of the child.

A careful reading of this testimony, with the foregoing criticism in view, leads us to the conclusion, however, that Mrs. Criddle related the facts as she remembered them, and that she did not embellish her story in order to assist the plaintiff. However difficult or impossible it might be, after such a lapse of time, to recall ordinary and unimportant matters, it is by no means so remarkable as to arouse suspicion that a mother should retain an accurate recollection of the import and details of a conversation dealing with her permanent separation from an infant child, nor does it seem improbable that the plaintiff's mother should have felt some concern for plaintiff's future interests, in arranging to surrender him to the care of strangers. Although such an arrangement may have suited her, it is not to be assumed that she would relinquish her child without assurances as to its future status and welfare. It was to go at a tender age into another family, to grow up in a different environment, and the tie that bound it to its only living parent was to be permanently severed.

The fact that a definite and final separation was contemplated as a consideration of the agreement is borne out by the fact that the mother never afterwards reclaimed or sought to interfere with the child, although she married...