Wales v. Holden
| Decision Date | 26 February 1908 |
| Citation | 108 S.W. 89,209 Mo. 552 |
| Parties | SALLY L. WALES, Appellant, v. IDA C. HOLDEN et al |
| Court | Missouri Supreme Court |
Appeal from Nodaway Circuit Court. -- Hon. Wm. C. Ellison, Judge.
Affirmed.
Hudson & DuBois, Ab. H. Romans and Ernest Engle for appellant.
(1) Oral contracts of the kind stated in the petition, when proven according to the standard of proof required, and shown to be performed, will be decreed to be specifically enforced. Lynn v. Hockaday, 162 Mo. 111; Berg v Moreau, 199 Mo. 416; Sharkey v. McDermott, 91 Mo. 647; Russell v. Sharp, 192 Mo. 270; Kirk v Middlebrook, 201 Mo. 245; Rosenwald v Middlebrook, 188 Mo. 58; Grantham v. Gossett, 182 Mo. 651; Alexander v. Alexander, 150 Mo. 579; Kinney v. Murray, 170 Mo. 674; McElvain v. McElvain, 171 Mo. 244; Nowack v. Berger, 135 Mo. 24; Teats v. Flanders, 118 Mo. 660; Healy v. Simpson, 113 Mo. 340; Davis v. Hendricks, 99 Mo. 478; Hale v. Haris, 145 Mo. 214; Wright v. Tinsley, 30 Mo. 389; Clark v. Cordry, 69 Mo.App. 6; Stone v. Pennock, 31 Mo.App. 544; Lee v. Howe, 27 Mo. 521; Farrow v. Patton, 20 Mo. 81. (2) Plaintiff's objection to the competency of Ida C. Holden, as a witness, should have been sustained, for the reason that she was a party to the suit, interested in the result, and is making a defense, and claiming her interest in the estate of George W. Lewis, deceased, under him, who, if living, would have been incompetent as a witness on the ground that Asa Kelim, the other party to the alleged contract of adoption, was dead. Sec. 4652, R. S. 1899; Messimer v. McCray, 113 Mo. 387; Warfield v. Hume, 91 Mo.App. 546; Meier v. Thieman, 90 Mo. 433; Tucker v. Gentry, 93 Mo.App. 662. (3) Plaintiff is not presenting and making a claim against the estate of George W. Lewis, deceased, but is asking for a distributive share of the estate, and was a competent witness in her own behalf. And, in any event, she was a competent witness to deny and give her version of statements and conversations, testified to by the defendant, Ida C. Holden, claimed by her to have been had with, or in the presence of, plaintiff. Spradling v. Conway, 51 Mo. 54; Hoit v. Davis, 30 Mo.App. 314; Brandon v. Dawson, 51 Mo.App. 244; Lynn v. Hockaday, 162 Mo. 124; 30 Am. and Eng. Ency. Law (2 Ed.), 1031; Wade v. Hardy, 75 Mo. 401; Vandergrif v. Swinney, 158 Mo. 527.
J. W. Peery for respondents.
(1) Mrs. Holden was a competent witness in her own behalf. She was not a party to the contract sued upon. She did not derive her right of defense from her father in the statutory sense. She was defending her title to this property in her own right. Reed v. Painter, 145 Mo. 341. She did not testify to any conversation or transaction with Asa Kelim nor to any act or fact with which he was connected, or of which he, if living, would have had any knowledge. Weiermuller v. Scullin, 203 Mo. 472. (2) Plaintiff was not a competent witness to testify to the facts recited in her offer because the administrator of George W. Lewis was a party of record to the action, and under the law was a necessary party. She was therefore excluded by the terms of the statute. Weiermuller v. Scullin, 203 Mo. 474. (3) Under the allegations of the petition, it was made an issue in the case whether Judge Lewis had always recognized the contract pleaded, and always intended to carry it out; and whether during all the time intervening between the making of it, and his death, he and the plaintiff performed it and recognized it. Upon the issue so tendered the acts and declarations of the deceased were competent. The res gestae of this transaction was not confined to the very moment of the making of the alleged contract, but it embraced all of the time of its alleged performance. Maxwell v. Ratliff's Admr., 26 Ind. 157; Overseers v. Overseers, 2 Klup (Pa.) 441; Jewell's Lessee v. Jewell, 42 U.S. 219; Northup v. Hale, 76 Me. 306; Swink v. French, 11 Lea 78; Washington v. Bank, 171 N.Y. 163; Baker v. Kelly, 41 Miss. 696. In the construction of an ambiguous contract, the court will look not merely to the words employed, but to the subject-matter, the surrounding circumstances and the contemporaneous interpretation thereof by the parties themselves. Williams v. Railroad, 153 Mo. 487; Carter v. Foster, 145 Mo. 383; Witmore v. Crouch, 150 Mo. 671; St. Louis v. Gas Co., 155 Mo. 1. All of the evidence admitted and excluded is preserved and set out in extenso in this record. In such case the rule in appeals in equity, established by a long line of decisions, is that this court will reject evidence improperly admitted or consider evidence improperly excluded, and try the case de novo. State ex rel. v. Jarrott, 183 Mo. 218; Carpenter v. Roth, 192 Mo. 658; Bouton v. Phippin, 192 Mo. 473; Ross v. Ross, 83 Mo.App. 330; McCormick v. Parsons, 195 Mo. 91; Goodrick v. Harrison, 130 Mo. 269. (4) The evidence for plaintiff was wholly insufficient to justify a decree in her favor in this character of action. There was no sufficient and satisfactory proof of the contract alleged. There was no clear or cogent proof of the performance of that particular contract. Fanning v. Doan, 139 Mo. 392; Steele v. Steele, 161 Mo. 566; Kinney v. Murray, 170 Mo. 674; McElvain v. McElvain, 171 Mo. 244; McKee v. Higbee, 180 Mo. 263; Asbury v. Hicklin, 181 Mo. 658; Grantham v. Gossett, 182 Mo. 651; Rosenwald v. Middlebrook, 188 Mo. 58; Brevator v. Creech, 186 Mo. 558; Russell v. Sharp, 192 Mo. 270; Berg v. Moreau, 199 Mo. 416; Kirk v. Middlebrook, 201 Mo. 245; Albring v. Ward, 137 Mich. 352.
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 death-bed 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's) 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's) 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, who 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...
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