99 Mo. 478 | Mo. | 1889
This was a suit in equity brought by Mary E. Davis and her husband for the specific performance of a contract alleged to have been made by her father for her benefit with John McCormick. The defendants are the widow, the administrator and the devisees of said John McCormick.
Dr. Campbell, the father of the female plaintiff, and John McCormick, with their families, resided in the town of Ashley, Pike county. Dr. Campbell’s wife died on the twentieth, of August, 1862, leaving a child named Anna, then about three months old; he had a family of thirteen children and was without property. Mr. McCormick was in good financial circumstances and
The petition states that Dr. Campbell for and in behalf of his infant daughter, now Mrs. Davis, and John McCormick entered into a contract whereby it was agreed that in consideration that Campbell would surrender his daughter to McCormick, he, McCormick, would adopt her as his child, and “ would make her his heir at law, and would grant and devise to her all his property, both real and personal, of which he should die seized and possessed.” As bearing upon this alleged agreement Dr. Campbell testified : “ About three weeks after my wife died, Mr. McCormick asked me to step into his store. He said, ‘Are you willing to comply with the agreement made by my wife and yours in relation to giving up the baby to my wife to adopt, raise and educaté.’ I did not hear what had been said by Mrs. McCormick and my wife, I said to him, ‘Whatever Mrs. McCormick says is true; if you are tired of keeping the child, I will take her home as soon as I make arrangements for the board of the children.’ I said something about paying him for services, and he said, ‘Don’t mention that, for my wife wants to adopt the child and change
The witness goes on to say that after some reflection he agreed to the proposition, that they asked Mr. Pogue, who was present, to reduce to writing what had passed between them, which he did, and that Mr. Pogue was to hold the agreement until called for by one of the parties; says he never asked for it, though written twenty-one years ago. Mr. Pogue, whose daughter is one of the residuary legatees, testified that he never saw the contract and knew nothing about it, except from hearsay. A Mr. Keith testified that he was in Mr. McCormick’s store when the latter received a copy of the act of the legislature, that Mr. McCormick produced from his desks what he said was a copy of the act and also a copy of the contract between him and Dr. Campbell. Witness did not hear the contract read and knows nothing about its contents.
The act of the legislature was approved on February 9, 1863; it was passed at the instance and request of Mr. McCormick, and is as follows : “ Section 1. That an infant child, name Anna McClellan Campbell, daughter of Jerome B. Campbell, of Pike county, be declared to be adopted as the daughter of John McCormick and Mary E., his wife, of said county; and that the name of said Anna McClellan Campbell be, and the same is hereby, changed to Mary Elizabeth McCormick, and she is declared to be capable of inheriting from said John McCormick and Mary E., his wife, by will, devise or descent, in the same manner and with the same rights as though she was their child.”
There is other evidence to the. effect that the plaintiff grew up without any acquaintance with her brothers and sisters; that she was reared, treated and spoken of by her adoptive parents as a natural child; that Mr.
It is conceded, on the part of the plaintiffs, that the alleged contract cannot affect the rights of the widow of John McCormick; so, that, as between the plaintiff and the widow, there is, in reality, no contest whatever. On the other hand, the other defendants do not dispute the right of the plaintiffs to have a contract, like that set up in the petition, enforced; but they do insist that the' evidence fails to establish the contract alleged.
It is not, and cannot be, maintained that the act of the legislature discloses any contract, on the part of McCormick, to give to the adopted daughter his property at his'death. The alleged agreement must, therefore, be proved by other evidence, though the act is a circumstance in the case. As the evidence stands, we think it clearly established that there was some agreement between Dr. Campbell and Mr. McCormick, and that the agreement was reduced to writing, though it could not be found for use on the trial of this cause. The question then is, what were the terms of the contract? It is fair to believe the legislature would not have passed the special act without the consent of Dr. Campbell; and a very natural inference from all the evidence is, that the agreement was but a consent, on his part, to the passage of the act to be placed before the legislature. But Dr. Campbell and his daughter, then about twenty-two years of age, testify that McCormick said he would make the child his heir. This is the
We are cited to the cases of Sutton v. Hayden, 62 Mo. 101, and Sharkey v. McDermott, 91 Mo. 647. In the first the contract was that Mrs. Sutton should have all of the property of Mrs. Green at the death of the latter. In the other the demurrer admitted that James and Catherine McLaughlin took the child, then four years old, and agreed to “ provide and care for her, and adopt her as their child, and leave her their property at their death.” The principles of law, asserted in those cases, are not questioned; but the cases made, on the proof in one and on the demurrer in the other, are unlike the one in hand. Here the proof fails to show any agreement, on the part of McCormick, to give his property to the adopted daughter. Her position, in respect of his property, is not unlike that of a natural child, and he could dispose of it as he saw fit by will.
There is much in the record to arouse the sympathy of the court in favor of the plaintiffs, and still more in