195 Mo. App. 287 | Mo. Ct. App. | 1916
The petition in this ease alleged that plaintiff is a daughter and only child of John H. Asahl, deceased, and was, during his life, always recognized and acknowledged as such; that in 1886 she was living with her family in Mecklenburg Schwerien, Germany, on which date her father visited her and orally promised and agreed that if she would move with her family from Germany to the United States he “would adopt plaintiff as his child and make her his legal heir” that plaintiff accepted said promise and agreement and did in compliance therewith and in reliance thereon, remove her family to the United States and ever since has resided therein; that in order to make said removal she had to dispose of her property in Germany at a sacrifice.
The petition then alleged that said John H. Asahl neglected to adopt plaintiff; that he died in ¡Moniteau county, Missouri, without having made such adoption; that he left surviving him his widow Margaret Asahl, who has since died; that he had no children other than the plaintiff; that at his death he was seized of real estate worth $2000 and- of personal property worth $8000; and that plaintiff, under said contract and agreement is entitled to receive and recover one-half of said property. The petition then concludes as follows: “Wherefore plaintiff prays that she may have .judgment for the sum, of five thousand dollars and that she may have all other' proper relief.”
The suit was brought against the adminstrator of; John H. Asahl’s estate, but afterwards the executor of' the will of Margaret Asahl, deceased, on his own motion, was made a party upon a showing by him that John H. Asahl left a will in which he devised and bequeathed all his property to said Margaret Asahl, his second wife.
After the issues were made up, a hearing was had, and the court rendered a decree in which it is stated that the court doth find:
And the judgment concludes thus:
“Wherefore it is considered, adjudged and decreed by the court that plaintiff be and she is hereby declared a pretermitted heir of John H. Asahl, deceased, and entitled to a share as an heir in the estate of John H. Asahl, deceased,”
Thereupon the executor of the widow’s estate appealed to the Supreme Court. That tribunal, however, in an opinion handed down on the 30th of March, 1916, held that jurisdiction of the appeal was with us and transferred the case to this court.
The contract declared on in the petition is an oral contract on the part of John H. Asahl to adopt plaintiff and make her his heir. Such contracts, when established according to the standard of proof required, and shown to have been performed pn one side, can be enforced in equity. [Sharkey v. McDermot, 91 Mo. 647; Nowak v. Berger, 133 Mo. 24, 37; Haley v. Simpson, 113 Mo. 340, 346; Lynn v. Hockaday, 162 Mo. 111, 125; Martin v.
In cases of this kind where it is sought to establish an oral contract which, but for the fact of part performance, would be void under the Statute of Frauds, the authorities all hold that “to sustain the alleged oral contract the proof must be so clear, cogent and convincing as to leave no reasonable doubt in the mind of the chancellor, not only that a contract of the general nature alleged was made, but that the particular contract as alleged was made and its terms and conditions clearly shown.” [Grantham v. Gossett, 182 Mo. 651; Wales v. Holden, 209 Mo. 552, 558, 576; McElvain v. McElvain, 171 Mo. 244, 251.] Courts must be very careful not to lower the standard of proof in such cases for if that standard be lowered or weakened, the danger of unfounded and trumped up claims being established against a person after his death is very great.
The most important question then, and the one to be first decided, is whether the evidence is sufficient to entitle plaintiff to relief of any nature. For if that be decided-adversely to her, all other questions become academic.
There is no question but that John H. Asahl was a native of Germany and emigrated to this country many years prior to 1886. He lived in Moniteau county, Missouri, was married, and at that time his first wife was alive. They had no children. In that year he made a trip to Germany.
Mrs. Willers, witness for plaintiff, testified that she was plaintiff’s step-daughter and was born in Mecklenburg, Germany, in 1869; that she was living at home with her father and her step-mother, the plaintiff, in 1886 when John H. Asahl came there from the United States and made them a visit; that he said hé came to hunt up his daughter; and that he found her, the plaintiff; that he wanted her to. come to the United States and he would adopt her as his heir; that he came to hunt up his child. The witness stated that she herself was then sixteen years old; that she heard the conversations between John
August Seyffert, a friend of Asahl’s- testified that he had known him intimately for thirty or forty years, saw him nearly every day; that in 1886 Asahl went to Germany and while there the witness received from him a letter in which he said he had found his daughter and was staying with her; that upon Asahl’s return, the witness had heard him say he had found his daughter, but he never heard her name; that he, the witness, never met the plaintiff in the presence of Mr. Asahl and did not know of the latter having held her out -and introducing her as. his daughter in the town of California where Asahl lived; but in answer to a question by the court as to whether he had ever heard him speak of Anna Buck as his child, or ever heard him say that he brought his child home with him or that she came over here, he re
A step-son of plaintiff, Ernest A. Buck, testified that he was horn in Germany in February, 1875; that in May, 1886, John H. Asahl cameUo his father’s home in Mecklenburg, Germany; that in a conversation between Mr. Asahl and the plaintiff, Mr. Asahl said he was marrigd over in this country (the U. S.), but that the. marriage was childless and that he had come over to adopt her as-his daughter and to make her his heir; that the conver-.sation was along the line of adoption papers; that in the afternoon Mr. Asahl sent the witness’ father for the school teacher of the place that acted as notary; that the school teacher came and the two, Asahl and the teacher, talked it over; that the old gentleman, Mr. Asahl, said he Jiad property over and was childless, and that she was to come to this country and he#would make her his heir; that the teacher told him it wouldn’t be necessary to draw up the papers there because they wouldn’t be legal over there and that they had better go on this side; that along about the end of July, or the first of August, 1886, Asahl returned to the United States and in the following spring witness’ father and step-mother, the plaintiff, came to the United States; that they came on Mr. Asahl’s promise to adopt her and make her his heir; that when the family reached Kansas'City they were met at the Union Depot by Charles Asahl, John H. Asahl’s brother; that witness’ father was a carpenter and John H. Asahl had suggested that they come to Kansas Cityi because the town of California wasn’t a very good place to follow that business and Kansas City was on a boom; that upon their arrival at Kansas City they called Charles Asahl “Uncle” and his wife “Aunt.”
The witness further testified that John H. Asahl came to Kansas City about twice a year to visit them, and usually staid from a week to two or three. weeks, never less than a week, dividing his time between their house and that of his brother Charles; that his stepmother went to the town of California to visit Mr. Asahl staying usually a week or ten days; that he was not cer
The witness further stated that when Mr. Asahl was in Kansas City on- a visit to the family, the plaintiff called him “Papa” and the children called him “Grandpa” and that as a rule Mr. Asahl addressed the children by their given names; that he had heard Mr. Asahl introduce the plaintiff as his daughter to his or her friends in Kansas City a dozen different times or more. On cross-examination he said he meant, by introducing her, that Mr. Asahl referred to her as his daughter when talking to other people. The witness said he visited California only once during Mr. Asahl’s life and that the latter lived about twenty years after the family came to this country.
On cross-examination the witness said he remembered hearing Mr. Asahl say while on his visit in Germany, that that was his birthplace; that his step-mother, the plaintiff, had never seen her father until he came there; that he learned then from things Mr. Asahl said that it was the same place where he and the plaintiff’s mother lived; that the plaintiff’s mother had married and was living in the same community and Mr. Asahl went to call on them and the call was returned at the witness’ home; that-the plaintiff’s mother and Mr. Asahl
The foregoing was all the evidence offered by plaintiff. The defendant offered no witnesses in opposition to plaintiff’s evidence, but introduced in evidence the will of John H. Asahl and also the will of his second wife, Margaret Asahl.
Asahl’s will, after providing for his burial in a decent manner, for the payment of his debts and for a monument at his grave, bequeathed to his wife Margaret Asahl all the remainder of his estate “both real, personal and mixed, including monies, notes and .bonds,absolutely and forever after my death to be disposed by her as she shall see fit and proper.-” No one else was mentioned in his will and no executor was named.
The will of Margaret Asahl' bequeathed all of her property to her various relatives and heirs, and appointed the defendant Nischwitz executor with the request that he be not required to give bond. Both wills were introduced in evidence over the objection of plaintiff.
Was the foregoing evidence sufficient to justify the trial court in sustaining plaintiff’s claim as to the existence of such a contract and her performance thereof?
In determining this question it is well to ascertain the facts about which there can be no question. They were that John H. Asahl was bom and reared in Germany, that he was married but never had had a legitimate child. There can also be no question but that he did go back to Germany and to the scenes of his youth in the year 1886. While there he wrote to his friend Seyffert (a disinterested witness living in or near California, Mo.) that he had found his daughter and was staying with her. Upon his return to America he again
We think the fact that .she was his daughter is very important and, when taken in connection with the other facts about him and the course he pursued, make the alleged contract reasonable and natural. His married life was childless. He went hack to the scenes of his youth to hunt up his daughter and found her. He had not only a strong motive, hut a moral duty toward her; and his course in hunting her up indicates a desire upon his part to perform that duty. She was the child of his body, and, as said in Roberts v. Roberts, 223. Fed. Rep. 775, 776, “this, together with the conceded fact of his-childless married life, gave to him a natural motive and imposed upon him a moral duty to plaintiff and her mother to make plaintiff his child in law as she was in nature. These two facts enter into all of plaintiff’s evidence, giving to it reasonableness and probative force.” In the Roberts ease direct and express evidence of the contract seemed to he wanting. But the court refused to reverse the .judgment on that account, holding that a contract could be found from the conduct of the adopting parents. In the case at bar there is definite and express evidence of the contract and this is corroborated and enforced by everything the father did both before and afterwards, except in the will he made in his second wife’s favor in which no mention of a child is made. That the
The contract in this case was to adopt plaintiff and make her his heir; it is not a contract to will her all of his property. Whether Mr. Asahl could by will have cut plaintiff out is not in the case since he did not do so. The case is, therefore, unlike that of Davis v. Hendricks, 99 Mo. 478.
Is the judgment which the court rendered permissible under the petition? It will be noted that the petition alleges all the constitutive facts necessary to create a cause of action in equity based upon a- contract which would entitle plaintiff to be made a pretermitted heir. It is true, the petition in one aspect states the violation of a contract and prays judgment for $5000 but just
It is urged that there is a defect of parties since the legatees and devisees of the wife’s will are not made parties to the suit. So far as concerns the personalty of Asahl’s estate, his administrator represents all who are interested in that, including it would seem, even the estate of the second wife, but, if not, then the legatees of the latter are represented by her executor. [1 McQuillen’s Mo. Practice, sec. 125; Cromer v. Pinckney, 3 Barb., Ch. 466, 474.] Neither the' administrator nor the executor have or had anything to do with the real estate, consequently the wife’s devisees are'not represented, and, not being parties to the suit, their interest in the
The contract is to be determined according to oúr law and not that of Germany, hence we need not assume that the common law is in force there- and determine the case according to its rules. The contract was not complete until it was performed on plaintiff’s part by coming to America. It was made by the parties with a view to its performance in this State-, no part of it was performed until plaintiff came here, and, in that situation, our courts will supply the applicatory law in its equitable enforcement. [Scudder v. Union National Bank, 91 U. S. 406, 411.] The general rule is that when a contract is made in one state to be performed in another the essential validity of the contract is governed by the law of the place of performance.. [2 Am. & Eng. Ency. of Law (2 Ed.), 1328.]
The plaintiff has not sought to be made an heir to all of the property of her father but only to one-half thereof,