Wales v. Holden

• Citation: 108 S.W. 89,209 Mo. 552
• Parties: WALES v. HOLDEN et al.
• Decision Date: 26 February 1908
• Court: United States State Supreme Court of Missouri

108 S.W. 89

209 Mo. 552

WALES v. HOLDEN et al.

Supreme Court of Missouri, Division No. 1.

February 26, 1908.

1. FRAUDS, STATUTE OF — EVIDENCE — PERFORMANCE OF UNWRITTEN CONTRACT.

Proof to sustain a claim in the face of the statute of frauds, based on the performance of an unwritten contract, must be overwhelming in its probative force, leaving no room for reasonable doubt.

2. SAME — ADOPTION — EVIDENCE.

Evidence considered, and held insufficient to show an oral contract of adoption.

Appeal from Circuit Court, Nodaway County; Wm. C. Ellison, Judge.

Suit by Sallie L. Wales against Ida C. Holden and others. From a judgment for defendants, plaintiff appeals. Affirmed.

Hudson & Du Bois, Ab. H. Romans, and Ernest Engle, for appellant. J. W. Peery, for respondent.

VALLIANT, P. J.

This is a suit in equity to enforce specific performance of what is alleged to have been an oral contract to adopt the plaintiff, then a child eight years old. The contract is said to have been made in April 1874, when the plaintiff was an orphan living in the home of her paternal uncle, Asa Kelim, and the parties to the contract were Asa Kelim acting in loco parentis for the plaintiff and George W. Lewis in his own behalf. The latter was known as Judge Lewis formerly a judge of the probate court, and afterwards and for many years one of the prominent lawyers in that part of the state. Judge Lewis died November 22, 1902. Asa Kelim died several years before. Therefore when this suit was begun both the contracting parties were dead.

The petition states that on her deathbed the plaintiff's mother placed her in the care of this uncle, "requesting him to procure a home for her with some good family in such manner and place as his best judgment might dictate where she might be educated and well raised"; that on the death of plaintiff's mother her uncle took her to his home, applied for and obtained letters of guardianship, and she was living with her uncle when, in 1874, Judge Lewis and his wife came to Grant City, near which her uncle lived, and asked him to allow them to take plaintiff and adopt her as their own child, to which her uncle consented, and thereupon it was agreed "by and between the said Asa Kelim as guardian of the person of the plaintiff, and by virtue of the power and authority delegated to him by plaintiff's mother, and the said George W. Lewis, that he, the said George W. Lewis, would take the plaintiff herein, adopt her and make her his adopted child, educate, care for, and give her all the rights of a natural child, and at his (the said George W. Lewis') death this plaintiff should be entitled to and receive an equal share with his other child or children, of all of his (the said George W. Lewis') estate and property, real, personal, and mixed, wherever situated." Then the petition goes on to state that in conformity to that agreement plaintiff was taken into the Lewis home, and remained there nine years, until 1883, when she was married and went to a home of her own with her husband; that during all that time she was treated as a daughter in the family, and conducted herself as was becoming to one in that relation; that while she lived in his family Judge Lewis frequently told her of his "agreement of adoption;" that by its terms she had been "legally and lawfully adopted, and was to have and receive an equal share as such adopted child with his other child or children in all the property that he might have at his death wherever situated, and whether real, personal, or mixed"; that for several years before her marriage Judge Lewis and his wife were old and feeble, and she alone ministered as a daughter to them. The petition states and reiterates that Judge Lewis always recognized the contract of adoption, "and always intended to carry out said contract and agreement of adoption, and always intended that plaintiff should, at his death, share equally with his other child or children in all his estate." And yet the alleged adopting father died in 1902 leaving an estate worth about $200,000, and only one heir, his daughter Ida C. Holden, and her husband, who is also administrator of the estate, are the defendants in this suit. The trial resulted in a judgment for defendants, and from that judgment the plaintiff prosecutes this appeal.

There was evidence tending to support the plaintiff's claim, the character of which evidence we will consider later. Both parties to the contract being dead, and there being no deed or other evidence in writing, necessarily the evidence for the defendants was in a great degree negative in form. The circumstances of this case forcibly illustrate the wisdom of the rule of evidence so firmly established and so often declared by this court, namely, that the proof to sustain a claim of this kind, in the face of the statute of frauds, must be overwhelming in its probative force, leaving no room for a reasonable doubt. We do not consider it necessary to discuss that rule at this time. We can add nothing in the way of argument to what we have already in many cases said. Steele v. Steele, 161 Mo. 566, 61 S. W. 815; Kinney v. Murray, 170 Mo. 674, 71 S. W. 197; McElvain v. McElvain, 171 Mo. 244, 71 S. W. 142; McKee v. Higbee, 180 Mo. 263, 79 S. W. 407; Asbury v. Hicklin, 181 Mo. 658, 81 S. W. 390; Grantham v. Gossett, 182 Mo. 651, 81 S. W. 895; Rosenwald v. Middlebrook, 188 Mo. 58, 86 S. W. 200; Berg v. Moreau, 199 Mo. 416, 97 S. W. 901, 9 L. R. A. 157. The cases relied on by appellant do not in the least impair the force of those decisions. Sharkey v. McDermott, 91 Mo. 647, 4 S. W. 107, 60 Am. Rep. 270, came up on a judgment sustaining a demurrer to the petition in which the oral contract and the full performance on the part of the child were clearly stated. The trial court had sustained the demurrer, and the Court of Appeals affirmed the judgment, but this court held that the petition stated a cause for relief in equity, and remanded the cause for trial. There was no question of the sufficiency of the evidence in that case. In Lynn v. Hockaday, 162 Mo. 111, 61 S. W. 885, 85 Am. Rep. 480, the evidence was clear and convincing, and, besides, the undisputed facts in that case are in striking contrast to those in this case. In that case the child was only three or four years old. Her name was changed to that of her adopting parents. At home, at school, in society, wherever she went, she was known as "Lillie Lynn," as the daughter of Mr. and Mrs. Lynn, and as their only daughter. She did not herself know until she was 17 or 18 years old that Mr. and Mrs. Lynn were not her own father and mother. She was married in the home of her adopting parents in their presence, and under the name of "Lillie Lynn." Besides, the adopting father in that case, though he was an intelligent and well to do farmer, and perhaps knew that there should be some written document to evidence the adoption, yet, if he knew it, he doubtless did not appreciate its importance as he would have done if he had been, as in this case, a learned and exceedingly careful lawyer. Before taking up the evidence for the plaintiff tending to prove the oral contract, let us see what the undisputed facts were to which that evidence was aimed to apply.

The plaintiff's father died in 1866. She was born soon after. Her mother, with three children — two boys (the eldest born in 1860) and this girl — came to Missouri in 1867, to Worth county, where we infer she had formerly lived, and where Asa Kelim, a brother of her former husband, lived. She married again after she came to Missouri, and had two children by her second husband. When she was in her last illness she was in quite destitute circumstances, and she was greatly distressed at the thought of leaving her children, particularly the three girls, with no one to care for them. Asa Kelim visited her in her distress, and being requested by her to take the children, and care for them until he could get good homes for the three girls, he promised to do so, and on her death he took them to his home. He had a farm near the town — Grant City — consisting of 160 acres, on which he had a log house containing two or three rooms. He had at that time himself five children; but he was evidently a man whose heart was bigger than his fortune. He took these five children of the plaintiff's mother, two of whom were not of his blood, and brought them under his roof to care for them — we infer that the father of the two youngest girls was living, but, however that may be, good homes were soon obtained for those two. Judge Lewis and his wife knew the plaintiff's mother, and they both liked her. They also knew the plaintiff, then a little girl, and they were pleased with her. Just when they heard that it was the desire of Asa Kelim to find a good home for this child the evidence is not definite, but it seems they had heard of it, and in April 1874 came to Grant City, and after a conference with Asa Kelim took the child and carried her to their home, where she lived until she was married in 1883. During the years she lived in this family she was treated with kindness. She was clothed, educated, and cared for as if she had been a daughter, and on her part she bore herself as a dutiful child. Her name was never changed, until her marriage, she was always known as "Sally Kelim," and under that name she was married. She was married at the home of Judge Lewis, but neither he nor Mrs. Lewis was present at the ceremony, it having occurred at 7 o'clock in the morning before they had arisen. There was no deed of adoption ever executed. After their marriage the plaintiff and her husband took a short bridal trip and returned to Albany, where they lived about a year; then moved to another state, and have not since lived in Missouri. On their return from their bridal trip, Judge Lewis gave the plaintiff $100. During the year they lived in Albany Judge Lewis was on friendly terms with the plaintiff. He visited her several...