Summary
In Carlin v. Bacon, 322 Mo. 435, 16 S.W.2d 46, 49 (1929), the court specifically pointed out that, although one cannot be adjudged an "heir" prior to the decedent's death, a child may be declared to have been equitably adopted while his foster parents were still alive.
Summary of this case from Kuchenig v. California CompanyOpinion
March 29, 1929.
1. CHILD: Legal Adoption: Limitations. A cause of action, by which a plaintiff seeks to have himself declared an heir of a decedent, by adoption, arises when his right of succession to decedent's estate, as an heir or distributee, is denied; and if denied by the administrator of the estate, and the action is instituted immediately after the administration is brought to a close, it is barred by no statute of limitations, general or special.
2. ____: ____: ____: Estate by Entirety: Accrual of Action. Where the property was held by the adopting parents as an estate by the entirety, and the husband first died and later the wife died intestate, the cause of action of the adopted child to be declared an heir and distributee of the property accrued when the administration of the wife's estate was closed and he was denied the right to inherit as an heir and distributee by the administratrix and the collateral kindred of the wife.
3. ____: ____: Statute of Frauds. A contract entered into between a foundling asylum (a charitable corporation) and adopting parents, which contemplates the immediate execution of a formal deed of adoption, investing the adopted child with all the rights and privileges of a lawful child, though such formal deed is never executed, is not one falling within the clause of the Statute of Frauds which requires "any agreement that is not to be performed within one year from the making thereof" to be in writing; nor does such contract come within any provision of that statute. The parties contemplate that the contract may be completely performed within a year by the death of the adopting parents, though otherwise its performance may be continued through many years.
4. ____: ____: ____: Oral Contract. The same rules that are applied to oral contracts affecting real estate are applied to oral contracts of adoption of orphan infants; when one party to an oral contract has been placed in such a situation by a total or partial performance that it will be a fraud upon him if the contract is not fully executed, equity will enforce it, notwithstanding the statute requires it to be in writing.
5. ____: ____: ____: ____: Mistreatment. Where the foundling asylum fully executed the oral contract by which the adopting parents agreed that they would adopt the three-year-old foundling and raise him as their legal heir, and the child performed the contract as fully as he was permitted to do, and the adopting parents withdrew him from the sheltering care of the asylum, took him into their home, deprived him of opportunity to be adopted into a home where he would have received humane treatment, and then after a few years drove him forth by mistreatment and cruelty in his helplessness with only such chance of succor as general charity might afford, their legal representatives after their death cannot take shelter behind the Statute of Frauds, but there was such performance as requires the contract to be enforced.
6. PLEADING: Oral Contract: Performance. A petition which alleges, by intendment at least, such performance of the oral contract as "takes the case out of the Statute of Frauds" is sufficient after the case has reached the appellate court on defendant's appeal.
7. LACHES: Delay in Bringing Suit: Adoption of Child. Laches is not mere delay, but delay that works to the disadvantage of another. The disadvantage resulting in the loss of evidence from the delay of the adopted child in bringing a suit to establish and enforce an oral contract of adoption until after the death of both adopting parents, is not laches where, because the property is an estate by the entirety, such suit could not have been brought until after the death of both adopting parents.
Corpus Juris-Cyc. References: Equity, 21 C.J., Section 219, p. 223, n. 30. Frauds, Statute of, 27 C.J., Section 98, p. 180, n. 15; Section 427, p. 343, n. 96; Section 429, p. 349, n. 53. Limitations of Actions, 37 C.J., Section 153, p. 811, n. 9.
Appeal from Cole Circuit Court. — Hon. Henry J. Westhues, Judge.
AFFIRMED.
T.S. Mosby and Irwin Bushman for appellants.
(1) The action is barred by both the special and the general Statutes of Limitations, because the demand was not presented within one year, and because the contract was not sued on until after five years from the date when the cause of action accrued (no disability of plaintiff being pleaded or proven), such defenses being invoked by demurrer, by answer, and by objection to the introduction of testimony. Secs. 182, 1317, R.S. 1919; Kneisley v. Leathe, 256 Mo. 346; Home Ins. Co. v. Wickham, 281 Mo. 300; Hinshaw v. Warren, 167 Mo. App. 365; Burrus v. Cook, 215 Mo. 496; McKinzie v. Hill, 51 Mo. 303; Montelius v. Sarpy, 11 Mo. 237; Nelson v. Haeberla, 26 Mo. App. 1; Ryan v. Boogher, 169 Mo. 673; Boyd v. Buchanan, 176 Mo. App. 56; Stark Bros. v. Gooding, 175 Mo. App. 353; Heffernan v. Howell, 90 Mo. 344; Garth v. Motter, 248 Mo. 477; Boyce v. Christy, 47 Mo. 71; Steinbruegge v. Ins. Co., 196 Mo. App. 194; Stone v. Cook, 179 Mo. 534; Landis v. Saxton, 105 Mo. 486; State ex rel. v. Matney, 79 Mo. 314; Henoch v. Chaney, 61 Mo. 129; Coudry v. Gilliam, 60 Mo. 86; State to use v. Bird, 22 Mo. 470; Maddox v. Duncan, 62 Mo. App. 474; Bambrick v. Bambrick, 157 Mo. 423; Beekman v. Richardson, 150 Mo. 430; McAllister v. Williams, 23 Mo. App. 286; McKee v. Allen, 204 Mo. 655; Cowan v. Mueller, 176 Mo. 192; Bauer v. Gray, 18 Mo. App. 173; Richardson v. Harrison, 36 Mo. 96; Weber v. Jantzen (Mo. App.), 180 S.W. 432; In re Hensley, 121 Mo. App. 695; State v. Browning, 102 Mo. App. 455; Waltemar v. Schnick, 102 Mo. App. 133; Evans v. King, 16 Mo. 525; Gray v. Givens, 26 Mo. 291; Bliss, Code Pl. (3 Ed.) sec. 205; 18 C.J., 953, sec. 10, and notes; 25 C.J. p. 1012, sec. 6, note 37, 1043; notes 95 and 96, 1065, note 2, and p. 1066, note 8. (2) Plaintiff's action is barred by the Statute of Frauds, because it clearly appears from the petition that the contract was not in writing and was not to be performed within a year, and the allegations of part performance are not sufficient to take the case out of the statute. Sec. 2169, R.S. 1919; 27 C.J. 372, sec. 452, and notes; 2 Story, Eq. Jur. (13 Ed.) secs. 742, 760, 761, 762; Wales v. Holden, 209 Mo. 552; Reigart v. Coal Co., 217 Mo. 142; Collins v. Harrel, 210 Mo. 279; Charpiot v. Siegerson, 25 Mo. 63; Brownlee v. Fenwick, 103 Mo. 420; Rogers v. Wolfe, 104 Mo. 1; Alexander v. Alexander, 150 Mo. 579; Warfield v. Hume, 61 Mo. App. 91; Russell v. Sharp, 192 Mo. 270; Hamilton v. Brewing Co., 125 Mo. App. 579; Wheeler v. Dake, 129 Mo. App. 547; Sharkey v. McDermott, 91 Mo. 647; Grantham v. Gossett, 182 Mo. 651; Arfstrum v. Baker, 214 S.W. 859; Kinney v. Murray, 170 Mo. 674; McElvaine v. McElvaine, 171 Mo. 244; Gipson v. Owens, 226 S.W. 856; McKee v. Higbee, 18 Mo. 296; Teats v. Flanders, 118 Mo. 660; Hersman v. Hersman, 253 Mo. 175. (3) Plaintiff, having waited ten years after attaining his majority before asserting his claim, with no explanation of his delay, relying upon parol evidence to establish his right, the rights of third parties having intervened, evidence having been lost by the death of the Carlins, such delay having by reason of loss of evidence worked injury to the rights of the heirs, plaintiff is guilty of gross laches and is presumed to have waived or abandoned whatever rights he may have had. Pomeroy v. Fullerton, 131 Mo. 581; Murphy v. DeFrance, 105 Mo. 52; In re Ferguson, 124 Mo. 574; Kelly v. Hurt, 74 Mo. 561; O'Fallon v. Kennedy, 45 Mo. 124; Heuer v. Ruthowski, 18 Mo. 216; Broaddus v. Ward, 8 Mo. 217; Sullivan v. Railroad, 94 U.S. 807; Wollensack v. Reiker, 115 U.S. 96; Bennett v. Terry, 299 S.W. 147; Joyce v. Growney, 154 Mo. 253; Mester v. Jones, 286 Mo. 56; Dexter v. Macdonald, 196 Mo. 373; 36 Cyc. 721, note 85; Id. 724, notes 87, 89; Id. 738, sec. 4, notes; 21 C.J. 217, sec. 217; Id. 435, sec. 469, notes; Id. 236.
Ira H. Lohman and Sam S. Haley for respondent.
(1) Respondent is not suing as a creditor of the estate, but is suing as an heir; he takes the estate subject to the debts; the heir can come in and make a claim for the estate even long after final settlement has been made. The estate is still in the course of administration, and Sec. 182, R.S. 1919, does not apply. Respondent's cause of action to recover the property could not accrue until April 21, 1924, the date of the death of Lena Carlin. So long as Lena Carlin was living respondent had no claim to her property. Respondent was not required to take any action until there came into existence some property to which he was entitled for which he could bring suit. He could not maintain this action as long as either Mr. or Mrs. Carlin lived. Dillmann v. Davison, 239 S.W. 505; Remmers v. Remmers, 239 S.W. 514; Fishback v. Prock, 279 S.W. 38; Kay v. Nichaus, 298 Mo. 206; Holloway v. Jones, 246 S.W. 591; Care v. Smiley, 239 S.W. 501; McCarty v. McCarty, 239 S.W. 850; Cradock v. Jackson, 223 S.W. 924; Fischer v. Davison, 271 Mo. 195; Martin v. Martin, 250 Mo. 539; Lynn v. Hockaday, 162 Mo. 111; Nowack v. Berger, 133 Mo. 24; Healey v. Simpson, 113 Mo. 340; Sharkey v. McDermott, 91 Mo. 647; Jenkins v. Gordon, 256 S.W. 136; Johnson v. Antry, 5 S.W.2d 405. (2) As to cases cited under paragraph two of appellant's brief relating to the Statute of Frauds, a careful reading of them shows that none of them applies to the Missouri rule as to the contract of adoption. None of the cases cited by appellant are adoption cases. Our answer to all of them is the case of Fishback v. Prock, 279 S.W. 41. See, also, Johnson v. Antry, 5 S.W.2d 409. (3) Under paragraph three of appellant's brief the point is raised that more than ten years has elapsed since the child arrived at majority. Respondent's answer to this is fully covered under paragraph one of respondent's brief, and particularly the case of Dillmann v. Davison, 239 S.W. 508. The cause of action to recover the property could not possibly accrue until after the death of Mrs. Carlin. It is further asserted, under paragraph three of appellant's brief, that plaintiff is guilty of gross laches, and that the delay has worked injury to the right of the heirs. We fail to see how there is any laches in this case or any injury to the heirs in any way. This court has repeatedly passed upon that very point. Johnson v. Antry, 5 S.W.2d 409; Dillmann v. Davison, 239 S.W. 508. (4) Appellants contend in their argument that the petition alleges that Carlin took plaintiff from the foundling asylum, agreeing to adopt him as their son; that such allegation does not state with whom the agreement was made, and, therefore, the proof does not support the petition. A motion was filed to make the petition more definite and certain and this was overruled, but no term bill of exceptions was ever filed at the term and the petition is good as against demurrer. The petition is sufficient to support a judgment. There was only one person that the Carlins could agree with and that was with the St. Ann's Foundling Asylum; the child was only three years of age when taken by the Carlins. It is further stated in the argument that there was no approval of the probate court, and that the child was not placed in the institution by an order of the court, appellant citing Beach v. Bryan, 155 Mo. App. 33, and Orey v. Moller, 142 Mo. App. 579. It will be noted, however, that the section of the statute construed in those cases was approved May 6, 1899. (See Laws 1899, p. 50.) The child was taken out of the institution on August 29, 1897, hence the agreement with the institution was made prior to the Act of 1899, and cases cited by appellant do not apply. Furthermore, the rights of the parents are not in question in this case; the parents have made no claim for the child, and this suit is not an issue between the parents and the Carlins, but is an issue between the child and Carlins; Carlins have deprived him of the right to be adopted by other parties. (5) About the only defense made by the defendants in this case was evidence to the effect that Carlin, after he had taken the boy and after the contract for adoption had been fully performed on the part of both parties, made statements that he had not adopted him. Many of these statements were admitted in evidence but were improperly admitted. This court will hear the matter de novo deferring largely to the judgment of the chancellor who tried the case. Parsifull v. Parsifull, 257 S.W. 117. The plaintiff made proper proof of all necessary facts for recovery. The decree is for the right party, based upon proper evidence of a contract to adopt and of circumstances which show conclusively an agreement to adopt. Direct testimony is not required. The adoption may be established by acts and conduct and inferences therefrom. Roberts v. Roberts, 223 F. 775; Johnson v. Antry, 5 S.W.2d 407; Remmers v. Remmers, 239 S.W. 514. (6) When the entire record is read and the proper evidence considered, disregarding the statements made by the Carlins that they did not adopt the child, this case stands without any defense. McCary v. McCary, 239 S.W. 850.
This is a suit in equity against the administratrix and collateral heirs of Lena Carlin, deceased: it seeks to have plaintiff declared an heir of the said Lena Carlin, through the operation of an alleged executed oral contract of adoption. The contract through which such status is alleged to have derived is set forth in the petition as follows:
"Plaintiff for cause of action says that on August 13, 1894, he was placed in St. Ann's Foundling Asylum, situate in the city of St. Louis, Missouri, where he remained as a ward of said institution until August 29, 1897; that on said 29th day of August, 1897, William Carlin and Lena Carlin, husband and wife, took plaintiff from said institution, agreeing to adopt him as their son, no children having been born to the said William Carlin and Lena Carlin and both of whom died childless; that upon taking him from said institution in the city of St. Louis, Missouri, on said date, they immediately brought him to Jefferson City, where the said William Carlin and Lena Carlin were living, and took plaintiff into their home as their son, and assumed the control, custody and care of plaintiff; that they gave to him the name of Thomas Carlin and sent him to school at Jefferson City; that plaintiff was introduced and referred to by the said William and Lena Carlin as their adopted son, and that they stated upon various occasions that they had agreed to adopt plaintiff as their son and were going to adopt him as their son; that during the time plaintiff remained in the home of the said William and Lena Carlin he rendered to them such obedience and service, and such affection and attention, as are usually rendered to a parent by a child; that after so remaining in said household for a period of six years, plaintiff was compelled to and did leave said home by reason of the mistreatment and abuse received by him from the said William and Lena Carlin; and that thereafter he was compelled to and did earn his own living."
After hearing the evidence the circuit court found and set forth in its decree: that Lena Carlin died intestate on the 21st day of April, 1924, in Cole County, Missouri, leaving an estate in said county consisting of both personal and real property; that defendant Bacon, on the 24th day of April, 1924, duly qualified as administratrix and immediately took charge and entered upon the administration of the estate of said deceased; that William Carlin, the husband of the said Lena Carlin, died intestate in the year 1919; that all of his property was owned jointly by him and his wife; that the real estate was held by them as tenants by the entirety; that upon the death of said William Carlin all of said property, both real and personal, vested in the surviving wife, Lena Carlin; that neither said William Carlin, at the time of his death, nor the said Lena Carlin at the time of her death, left any issue; and that the defendants, other than the defendant Bacon, are the collateral heirs of the said Lena Carlin, deceased, and claim title to her estate.
Following the findings just set forth, the decree proceeded as follows:
"And the court does further find that on the 13th day of August, 1894, plaintiff was placed in St. Ann's Foundling Asylum in the city of St. Louis, Missouri, by the mayor of said city, as a city foundling, where he remained as a ward of said institution until the 29th day of August, 1897, and that, on the 29th day of August, 1897, William Carlin and Lena Carlin, husband and wife, took plaintiff from said institution under contract and agreement with said institution that they would adopt him and raise him as their child and legal heir, and at the time of entering into said contract, and in pursuance thereof, the care, custody and control of plaintiff was surrendered unto the said William Carlin and Lena Carlin, and plaintiff was immediately taken into their home, and into their household and treated as their child and given the name of Carlin, and that the said William Carlin and Lena Carlin had no children and no children were born to the said William Carlin and Lena Carlin, or either of them.
"That said contract of adoption entered into between the said William Carlin and Lena Carlin and St. Ann's Foundling Asylum has been fully performed by surrendering the full care and custody of plaintiff to said Carlins, and that it was fully performed by the said William Carlin and Lena Carlin by immediately assuming the care, custody and control of plaintiff, and taking him as their child, and that said contract of adoption was, on the part of the said William Carlin and Lena Carlin, a joint contract, but no written deed of adoption was ever signed or executed by them in Cole County, Missouri, but the said William Carlin and Lena Carlin frequently acknowledged said adoption, and by acts and words ratified said adoption agreement."
The evidence discloses rather conclusively that for the first four or five years after taking plaintiff into their home the Carlins not only treated him kindly, but manifested toward him great love and affection. It appears, however, that subsequently their habits of life underwent a marked change; both of them, and Mr. Carlin especially, began to consume immoderate quantities of intoxicating liquor. Almost daily the little boy was sent on a horse to bring a jug of whiskey from the saloon; their treatment of him changed; they were harsh with him; they required him to do tasks beyond his strength and years; and Mr. Carlin, at times, whipped him brutally. Finally, in 1905, when plaintiff was eleven years of age, he left their home. After two or three days he was found by the Chief of Police, Mr. Tolin, wandering the streets of Jefferson City. Mr. Tolin took the boy into his own home, and finding after investigation that the Carlins no longer wanted him and that the boy did not want to return to them, kept him for three years. At the end of that time plaintiff, a boy then fourteen years old, fared forth to earn his own livelihood and never returned.
From the decree establishing the "status of plaintiff as the lawful child and legal heir of the said William Carlin and Lena Carlin" the defendants prosecute this appeal. They have assigned error with respect to the trial court's rulings in twenty-six separately numbered paragraphs, but as their "statement, in numerical order, of the points relied on, with citation of authorities thereunder," required by our Rule 15, covers but three of the assignments, the others will be treated as abandoned. The three briefed are stated as follows:
"1. The action is barred by both the special and the general Statute of Limitations, because the demand was not presented within one year, and because the contract was not sued on until after five years from the date when the cause of action accrued (no disability of plaintiff being pleaded or proven), such defenses being invoked by demurrer, by answer, and by objection to the introduction of testimony.
"2. Plaintiff's action is barred by the Statute of Frauds, because it clearly appears from the petition that the contract was not in writing and was not to be performed within a year, and the allegations of part performance are not sufficient to take the case out of the statute.
"3. Plaintiff, having waited ten years after attaining his majority before asserting his claim, with no explanation of his delay, relying upon parol evidence to establish his right, the rights of third parties having intervened, evidence having been lost by the death of the Carlins, such delay having by reason of loss of evidence worked injury to the rights of the heirs, plaintiff is guilty of gross laches and is presumed to have waived or abandoned whatever rights he may have had."
I. This suit was commenced May 4, 1925, a little more than a year after the death of Lena Carlin. It is not a suit for breach of contract, nor for the specific performance of a contract: it seeks a judicial determination of the status, if Limitations. any, resulting from an executed contract. The status claimed to have so resulted is that of heir of William Carlin, and also of Lena Carlin. Until rights incident to such status, or growing out of it, were denied, no cause of action with respect to it arose. William Carlin at his death left no property subject to the laws of descent and distribution; consequently, there was no occasion, either for plaintiff to assert or any one else to deny, that plaintiff was the lawful heir of said Carlin. But when Lena Carlin died, and the administration of her estate was brought to a close, plaintiff's right of succession to that estate, as heir and distributee, was denied by the administratrix and the collateral heirs. The cause of action sued on then first arose, and this suit was instituted immediately thereafter. Certainly, plaintiff could not have had himself declared an heir of Lena Carlin prior to her death. Nemo est haeres viventis.
The special Statute of Limitation pleaded in bar, the statute of non-claim as it is called, is without application. "The case at bar presents no claim against the estate of the deceased; it is simply a question between the parties claiming to be heirs at law of the intestate." [Lynn v. Hockaday, 162 Mo. 111, 124, 61 S.W. 885.]
Appellants' Point 1 is ruled against them.
II. The contract entered into between St. Ann's Foundling Asylum, a charitable corporation of the city of St. Louis, and the Carlins was not one falling within the clause of Oral the Statute of Frauds which requires "any agreement Contract. that is not to be performed within one year from the making thereof" to be in writing.
"An agreement which may, perchance, be performed within a year from its date, consistently with its terms and not in violation of them, is not within the statute, although the performance is liable to occupy more than a year; such as a contract to support one for life, or during an indefinite period, or to work for another for life or for an indefinite period, or to do any other thing possible to be done within a year although the doing of it may continue, and may be expected to continue, longer." [Biest v. VerSteeg Shoe Co., 97 Mo. App. 137, 149, 70 S.W. 1081, and cases cited.]
The import of the contract involved in this case was that plaintiff should thereby be invested with all the rights and privileges of a lawful child of the Carlins: among others, the right of support, maintenance and humane treatment during his minority. [Sec. 970, R.S. 1889.] Had the Carlins executed at once a formal deed of adoption, as the contract contemplated, and had they on the one hand, or the plaintiff on the other, died within the year, the contract would have been completely performed within that time.
"Cases where the promise is to continue to do something until an implied contingency occur, as, for instance, to pay during the promisee's life; to pay during the life of another; to work for another during his life; to board the promisee during his life; to educate a child; to support a child; to pay during coverture, are not within the statute, because the contracting parties contemplate that the one whose life is involved may die within the year." [Browne, Stat. of Frauds (5 Ed.) sec. 276, p. 361.]
The contract is not within any of the provisions of the Statute of Frauds. "Yet it bears a resemblance to cases within that statute, for the reason that the statute authorizing the adoption of children provides that it may be done by deed in writing, and indicates no other method." [Lynn v. Hockaday, supra, l.c. 125.] This court has therefore applied to oral contracts of adoption the same rules that are applied to contracts affecting real estate: equity will not permit one party to such a contract to invoke the statute when to do so would work a fraud upon the other. "It is a rule in equity that, when one party to a contract has been placed in such a situation by a total or partial performance, that it would be a fraud on him if the contract was not fully executed, then equity will interfere, notwithstanding the statute." [Farrar v. Patton, 20 Mo. 81, 84; Gupton v. Gupton, 47 Mo. 37, 46.] St. Ann's Foundling Asylum fully executed the oral contract on its part: plaintiff performed it as fully as he was permitted to. The Carlins under color of the contract withdrew plaintiff from the sheltering care of that institution, deprived him of opportunity to be adopted into a home where he would have received humane treatment, and then after a few brief years drove him forth in his helplessness with only such chance of succor as general charity might afford. Their representatives cannot now take refuge behind the statute.
The petition alleges, by intendment at least, such performance as "takes the case out of the statute." That is sufficient at this stage of the proceeding.
Appellants' contentions under this head are overruled.
III. Laches is not mere delay, but delay that works to the disadvantage of another. The disadvantage the appellants claim to have suffered through respondent's alleged delay in bringing this suit is the loss of evidence through the deaths of Mr. Laches. and Mrs. Carlin. Respondent could no doubt have instituted some action during their lives looking to a judicial determination of his status as adopted child, but, as observed in Dillmann v. Davison, 239 S.W. 505, 508, such action would merely have caused further enstrangement and resulted in respondent's disinheritance. But this suit, for the reasons heretofore indicated, could not have been brought until after Mrs. Carlin's death. The defense of laches is without substance.
The judgment of the circuit court is affirmed. All concur.