*1 SUPREME COURT OP MISSOURI, Prock. II. No error was committed in the admission or exclusion, testimony prejudicial appellant. to the Appellant’s
III. jury instruction that should acquit if else had made the found someone improper knowledge ap- connection without pellant, assigned the evidence did While error. physical show according that the connection was, appellant’s testimony, by some one it else, was appellant also knowingly shown using that the had been company’s gas for.eighteen without measurement discovery months before the the fraud and had made pay no offer to for the service thus rendered. Under these facts the insertion in an instruction his lack knowledge authorizing acquittal, although hypothetically jury only stated, would tend to mislead the properly
and it was refused. appeal There is no merit in this and the reason for having its been transcript, made, as disclosed may unfairly purpose be said to have been for the effecting delay a in the final determination of this case. judgment should be affirmed and it is so ordered. ' All concur. WHITSITT P. Appellants, et al., FISHBACK IDAv.
FANT PROCK and BEN PROCK. Two,
Division December 1925. Adoption: 1. CHILDREN: Parole Full Performance. An oral contract exception engrafted minor child is an which courts have Frauds, on the' Statute fully per- and such a contract when equity; will formed be enforced a court of but the evidence it, adopting parent, to establish after the death of the must be cogent clear, convincing, and the evidence in this case is of that character. Agreement Property: Consistency. -:-: Give parole A adopted which the owner of a farm his minor niece.
Yol. 311] 495’ TERM, 1925. thereby legal heir, became his sole is not inconsistent subsequent agreement her, married made'with after she had up that,
had taken their abode on another *2 aged husband uncle would return to the farm her childless and death, him, she, upon and live be with and should take care of his fully farm; agreement the sole owner such said if faithfully performed, may one in the both contracts be enforced suit, by ejectment brought partition his or as a defense greater adopted collateral heirs. As an niece has no child the rights property des- lineal in his his than she have were she would cendant; but, nevertheless, parent agree adopting with could that, upon conditions, fully performed, her she alone stated if remaining property. should his at death all his have showing. Agreement clearly -: Parole to Give Estate. 3. Evidence niece, orally adopted promised his the childless decedent elsewhere, that, up she and if had and taken her abode married farm, upon plans, give up his her their then husband would move him, balance and care for him the nurse attend to wants propo- accepted days, give farm, he would stipulated fully complied sition, upon with the the farm moved adjudging support conditions, owner of decree her to be the will a by having decedent intestate without after the death of conveyance by any writing provided for the sort will devised farm to her. of the Self-Serving Declarations. -: -: Statements made
4. niece, decedent, into of his after he had entered the absence give promised parole agreement her the with her although life, him of his care of the balance take would farm she competent agreement, are evidence inconsistent agreement was made. no such that' show Adoption Children, J., Juris-Cyc. Section 1-C. Corpus References: 1379, p. 1376, 73; 27, p. 18, New;.Section 1376, n. Section p. 17, 72 n. Evidence, X, 30, p. 1380, 22 C. New; Section n. 20 New. Section n. 9 Specific Cyc., p. 692, 27; 226, Performances 36 n. p. n. 38. p. n. (cid:127) 57., Lafayette M. Court.—Hon. Robert Circuit Appeal from Judge.
Reynolds, Affirmed. appellants. Aull
Aull & 496 COURT OF MISSOURI, SUPREME wholly
(1) produce proof Ida Fant Prock failed to granted required to entitle her to the relief herein. cogent produced convincing not clear, evidence heyond overwhelming proba- doubt, reasonable in its required by prescribed law tive force, rules equity by Murray, Kinney and established the courts. v. 700;
170 Mo. Wales 209 Holden, 576; Mo. 201 Middlebrook, Mo. 289; Kirk v. Walker v. Bohannan, Foley 146; 231 Sullivan, Forrister v. Mo. 373; Harrison, Mo. 589; Hafner v. 299 Miller, Mo. 232; Stowell, 820; 222 S. W. Woodard Oliver Johnson, Fanning Doane, Mo. Steele v. Harrell, 161Mo. Collins v. Steele, Mo. 302; Snuf- grant prayed Freeman, 276 S. fer v. To the relief underlying purpose down the be strike of the (2) Statute of and the Statute Frauds Wills. There *3 pleaded between the contracts is proof variance by to offered and testified the witnesses. The proven pleaded required by as contract was not law prescribed. the rules The conversations on relied proof ancient; of the contract were loose as and casual. proof The offered rests alone in the memories of wit- attempting recall conversations nesses to which occurred years ago. The witnesses testified to conclusions and (3) wholly The not to the facts. defendant failed to produce to per- sufficient that the show acts of evidence upon solely formance which she were relies referable pointed unerringly alleged adoption, to the and tracts or either of or con- pleaded in
them, the'cross-bill herein. naturally reasohably The acts rélied on are referable arrangement, theory. Kinney other motive to Mur- ray, (4) Holden, Wales v. 209 Mo. 576. admitting illegal, The court erred in irrelevant and in- competent part evidence on offered of the defendant, permitted Fant in Prock, this that the court Ben defendant Prock, husband of Ida Fant Prock, an party interested who derives whatever interest he has through in case from testify wife, alleged declaration by to have been made to him James TERM, Prock.
Fishback v. alleged’ adoption concerning the con- Fishback, E. "together (5) case. for the welded this tract excluding legal, competent and rele- The court erred testimony part plaintiffs, offered on the of the be- vant ing and declarations made the statements James presence Nancy the witnesses Gillespie, Fishback, John R. Ben Fish- Hood, Marion Fishback, P. Mattie Barton Whitsitt back, The said and statements declarations Fishback. were contemporaneous interpretation showing offered as parties, of the want the real situation consciousness part part of the of deceased claims on the of Ida alleged adoption, or as to contract pleaded in the cross-bill them, herein, either alleged performance gestae during the there- of the res alleged disprove and discredit the in rebuttal to state- of, having witnesses been ments testified to by especially herein, and while in E. Fishback James premises, pos- own farm and and in on his own home, declaratory controversy herein, as thereof, session explanatory nature and extent of interest, of the possession of James E. Fishback therein and title thereto.
Lyons Horace F. Blackwell for re- & Ristine and spondents.
(1) E. Fishback oral agreed and care defendant Ida Fant take, *4 children and make brother, her his own and Prock, upon prop- to leave all his his death heirs, and them his surrender erty contract, a them, to is valid children and the over his said serv- control father of all companionship latter constitute valu- ices and promise E. Fish- for able consideration njake adopt his heirs, children and them to back against the heirs of the enforced should be and will principle equity equity, parent adoptive on the in been, having in 'have done as which should treats Sup. 311 Mo. —32. COURT OF
498 SUPREME MISSOURI, great injustice in done order to avoid fact been hard- ship helpless upon innocent, on the children, brother the survivor, death of Ida Fant Prock, herein, defendant is entitled to entire estate of the adoptive parent. Craddock v. 223 Jackson, 924; S. W. Kay Signaigo Signaigo, 298 Niehaus, 201; v. Mo. v. 205 Payne, Baker 198 23; 75; S. v. S. Fisher Dav- W. v. Lynn Hockaday, idson, Healy Mo. 195; 271 v. 162 Mo. Ill; Simpson, 113 v. Mo. L. 27 A. R. Fish- 1327; Smiley, v. 242 W. Kerr 962; back S. v. 239 S. W. Holloway 501; Davidson, Dillman v. 239 S. 501;W. v. Sharkey 246 v. 587; McDermott, S. W. 91 Jones, Mo. 647; Berger, 24; Nowack v. Martin v. Martin, 250 Linsley 539; Mo. Meyer, 177 S. Patterson, 826;W. Buck v. (2) promise W. 997. The oral 190 S. of James shortly made to defendant Fant Prock posses- her before moved on husband and took February, of the that if farm, sion she and her give up plans their husband would then move his him and if she nurse attend farm, would wants him and for him the wait on care balance of his life he performance give her and full on the ample husband, Ida Fant Prock furnish equity specific performance. ground for decree Gupton, Gupton Hayden, Mo. 37; 47 Sutton v. 62 Mo. Berg McQuitty Moreau, 101; 416; Mo. v. Wilhite, Thompson, Bryant Merrill v. Mo. Mo. 714; S. Stahl, 217 W. Alexander Alexander, (3) properly purported The court 579. self-serving excluded long- of James E. Fishback
statements give Ida Fant after contracts the farm. Pursifull, Pursifull v. 257 W. S. Townsend v. (4) S. did Schaden, 275 W. err in testify permitting- Ben Prock defendant about state- regard adoption, adop- to the ments deceased as the even made before Ben tion contract was Prock knew Ida competent Ben Prock Fant. witness this case. was objection proper Moreover, no sufficient made to *5 TERM, v. Prock. testimony. of Elsea v. Smith, the introduction Mo. 407. 19, 1919, December C. On there was
RAILEY, filed Lafayette County, Court of Missouri, the Circuit petition in wherein Whitsitt P. counts, two Fishback et plaintiffs appellants, and al. are Ida Fant Pi'ock respondents. Ben are Prock defendants The ejectment, possession to recover of first count is the un- seventeen-eighteenths interests in acres of divided Lafayette County, land, less, located and de- more The east half of the south- follows, to-wit: scribed quarter quarter the northwest Three, east of of Section quarter Two, of Section southwest southwest quarter quarter of Two, Section all in of the northwest Forty-nine Twenty-nine. Township Range The of date September 1918, and the 21, month- ouster is stated as premises profits ly value of of said is one the rents and alleges, evidence hundred dollars. Said count respondents posses- are in shows, that the above-named an action for count is sion of land. second said partition of said land. appeared
- to- the The above-named defendants separate joint answers to each and filed action, petition. They are husband count admit óf allegations deny in both counts all other wife, but petition. avers that Ida Fant Prock The answer by virtue aforesaid, oral the land claims title to adoption child E. and heir James herself, Jby. year also virtue of 1890; about the said contract entered into between James E. an oral Prock the latter said Ida Fishback and early part' terms of which or the agreed that —inasmuch as E. Fishback said James Ida Fant had Fishback, brother of Ernest living E. Fishback ever in the home of said James been adoption years and whose old, he was about seven since consumption, death-bed on his claimed, also then a Fishback, who was widower OF MISSOURI, SUPREME COURT about to be left farm alone childless, was she, ill-health —if said Ida Fant Prock and her *6 give up plans, Prock, Ben their husband, then and with, move children, to his home their and said she, Ida Fant would take care of and nurse him Prock, the days, give balance of his he would her the above farm, compliance alleging that there the was full on of Ida Fant her Ben husband, said Prock and Prock, with agreement, terms of that the said but said James E. vesting Fishback failed to make a will deed or record asking Prock, said Ida Fant title to said land and the court decree Ida Fant Prock was the legal owner of said farm. reply
Plaintiffs for to the new matter contained generally specifically answer denied said the respondents, out claims of and set .in detail their relationship version the existed of between de- Fishback, fendants and E. said James which were any theory adoption special of inconsistent with" or respondents. agreement by relied on arguments, have been favored with able We oral carefully exhaustive briefs in this case. We have fully considered, facts read, contained in by as record, those found well abstract the trial opinion its are of the decree. We court that the finding by facts trial is of' court sustained convincing hereby adopt evidence, clear and and we same follows: parties respective come the hereto “Now their argument and the this cause counsel is resumed being completed argument being and the cause sub- singular pleadings court, all and mitted to fully being and read and heard all the seen evidence fully being considered the court finds that James E. Lafayette County, departed late of Fishback, Missouri, county day Sep- said about the life at 20th this leaving leaving no widow, and tember, defendant daughter who of his Fant Ida brother, commonly Blakey B. called Thomas Fish- TERM, and his his niece death, who back, died before daughter by adoption, Fant the said Ida only Prock heir at was and is his law. defendant,
“The finds further that when age eighteen months about the Prock, was shortly her thereafter was mother died, placed by James E. her in the home of father said children the said all the that at time Fishback; this said James E. James E. Fishback dead were childless; that de- Fishback and his wife were company companionship sired the children expressed adopt the Ida Fant Prock a desire to Ernest and also to her brother age years; few months about seven placed in home of the said after she James had been the said father, E. Fishback *7 verbally agreed and that her father said Fishback have said Fant E. Fishback could Ida Prock and her Ernest also have brother Fishback as his should make' them and should them and his children, they that at death should inherit and his own children fully same extent as if and to the him as were from eighteen about months the children; after own his said Ida Fant Prock’s father died; her mother death marriage until the of Ida from that time Fant and the death of Ernest in 1905, the 1913, in and Prock the Ernest and said Fishback Ida Fant Prock re- said Fishback as in home of James children. mained the during children in the time the said were “That the Fishback, James E. said Ernest the said the home of and dutiful child, obedient and that was Fishback yeilded to the control of the Fant Prock said Ida the him rendered and obedience E. Fishback said James strong him a toward him and affection and felt for looked him household work and after she did for him as his child, on him and cared waited in 1913 Fishback said death Ernest that at left no children. Fishback Ernest MISSOURI, SUPREME COURT OF “That his lifetime the James E. Fish- during in back was seized fee and was owner of the simple real following described situated estate, Lafayette County, to-wit: The east half Missouri, south- east quarter quarter of Section and the northwest quarter 2, southwest of Section and the southwest quarter of the northwest of said Section quarter 2, all Township 49, Range
“The further finds that on about or the 9th day February, 1899, of said James E. wife Fish- died, back part year latter of the early of the year the said James E. Fishback on the was land living described and was health; feeble that on about December 1912, de- fendants were had been for several years living what known as the T. Renick farm in John Lafayette some from County, distance where said James E. on the Fishback land above living described; the said James E. desired greatly the company and affection of the defendant Ida Fant Prock and her children, personal services, desired the care and Ida attention of the he proposed would, and said orally to move to his him (cid:127)farm and would nurse and attend to his wants him wait on care for him the balance his life her his give meaning thereby the land above that on or about described; January 1913, de- fendant Fant Prock accepted proposition of said James E. thereafter shortly she and her husband had sale the personal effects on said Renick *8 in February, farm and 1913, moved from said Renick farm to the farm said E. of James Fishback above de- and death; scribed remained there until his that de- Ida Fant fendant Prock entered home of the said E. Fishback and took possession of same and farm that of his said and all the time during aforesaid she nursed said James E. and waited on him cared to him and for attended all his wants up death, his in of so doing to the date she was TERM, Vol. Prock.
Fishback v. subjected personal great and was inconvenience to perform compelled arduous services menial, and did disagreeable. things in all Ida Pant Prock has “That the said fully performed to be on her all the conditions complete notwithstanding performed, such but performance failed E. Fishback said James according by paper writing to the forms her executed make deed did not a a and did not make will lawof conveying any conveyance her the land above to- other or adequate no sufficient relief and that described, premises at law.” can be had arising questions law will consider the We opinion to follow. in the which is case formerly before Division I. case was One of This reported in 242 be S. W. this will found court, following. Judge appears opinion from the It the trial had ex- cause, said Ragland portion plaintiffs, a certain at the instance cluded, Mary Mabry, testimony proffered Mrs. then made The latter for defendants. witness proof witness: “That Mrs. to show offer Mabry Mrs. death-bed, told that' on when Fishback, it that Mr. Fishback carried her to see she wanted Fishback) (Mr. promise had made he at out Fishback came Prock and Ernest Mrs. the time namely, take them his house, their heirs, and that make them when children own have should all their died and his wife he died deceased, property, the' Jim request of wife, present, heard request, that her given re- for such reasons complied with.” be quest would formerly Judge tried case ren- Davis, granted plaintiffs, judgment trial new dered ruling excluding the above his erroneous account appealed plaintiffs testimony. from the order brought up testimony trial and granting newa *9 SUPREME COURT OF MISSOURI, 504 Judge taken at the former trial. Ragland, opinion page “Appellants on 965; said: how- contend, rejected that, even if the ever, admis- evidence granting its exclusion did not warrant sible, of a including trial as new because evidence a whole, judgment was not sufficient to authorize a that, estab- lishing the decreeing contracts, either them, and specific performance. go As to this we no farther than say tending there was substantial to evidence performance the existence and show one side of a ’’ alleged as in the cross-bill. The court pass upon the declined to merits of the case, but af- granting the order firmed trial. new testimony Mabry, trial, In last of Mrs. present indicated, above was received and is in the rec- substantially testimony ord, all the that was heard appellants former at the trial. The contention of to the no effect there is substantial evidence record sustaining defendants’ is at cross-bill, variance with the Judge portion quoted opinion supra, Ragland’s in conflict is with the facts found us as heretofore stated. produced
II. It is contended that the evidence is cogent beyond convincing clear, a reasonable required by prescribed by law doubt, and the rules equity and established the courts of Missouri. We appellants are cited a number of Mis- it souri decisions claimed sustain Fanning contention, the above as follows: v. ParoleContractofAdoption. 411 Doan, 414; 139 Mo. Steele v. Steele, Kinney Murray, 170 574; Mo. Mo. 700 to 705; 161 Kirk Middlebrook, 289; Harrell, Mo. Collins 219 Mo. Foley 460; 233 Mo. 302; Harrison, Forrister v. Sulli Johnson, 238 231 Mo. Oliver v. Mo. van, 372; Walk er v. Bohannan, Woodard Stowell, Miller, Hafner v. l. c. 232; S. W. Snuffer v. Freeman, 274 37. S. W. TERM, Prock.
Fishback v. prin- respect to the have no criticism to make We *10 ciples foregoing It declared cases. should of law except of cited, be that none however, cases noted, with the sub- of Steele v. 161 Mo. deal Steele, ject adoption. of surroundings of the cases,
In the latter of class alleged adopting parent, must be taken into account as entering into well him a the motive which-actuated as adoption. own chil- contract of If James Fishback’s living, Ida and Ernest dren had been and he had taken poverty and the Fishback into his because of their home, presented family, no such have in their it would sickness case we have as before us. testimony, by the E. Fishback and shown
As Evidently spirit wife five children. lost all of their had pervaded this home account of loneliness must have in the children, of loss. He midst the above loved upon gloom, of became centered affection his his sickly brother, his of Ernest children presence, In their as members his assistance. needed family, the former he loneliness that a foresaw own children, the death of his at occasioned least, obliga- dissipated. might financial He no be was under appear any nor does it relatives, tion to any special any it for them. Is won- affection entertained Fishback, under the der that circumstances James E. his, agreed brother have own aforesaid, should adopted helpless be taken and infants should these rights inherit of a child to children, with the his own property? it has been enforcement con
While
exception
courts of
character is
tracts of this
yet
engrafted upon
equity
Frauds,
have
the Statute
exception
proper case,
bar,
at
like the one
recognized
clearly
the Statute
is as
this State
[Kay
205;
298
l. c.
Mo.
Hol
Niehaus,
itself.
v.
Frauds
loway
590;
246
l. c.
Fishback v.
Jones,
S.
v.
W.
Smiley,
McCary
501;
239 S.
242
Kerr
962;
v.
W.
S. W.
McCary,
239
Remmers,
239
Remmers v.
850;
S. W. l. c.
506
OF MISSOURI,
COURT
SUPREME
S.
c.
Dillman v.
W. l.
239
l.
513;
Davison,
507;
S. W.
c.
223
Jackson,
924;
Craddock
S. W.
Fisher v. David
Lindsley
Mo.
son,
1024;
W.
S.
v. Patterson,
Lynn
177 S.
Martin v.
Martin,
Consequently parent adopting might sell dispose property, of his so no that estate was left. [Steele Steele, 576.] Mo. l. c. On the other hand, against the second contract could be enforced the land consistency clearly itself. The of these matters was rec ognized in Fishback Prock, S. 962. clearly
III. The evidence shows that JamesE. Fish- orally promised back shortly Fant defendant, before she and her husband on moved the farm in con- troversy, February, 1913, that she husband give up plans,
would their then move to nurse him, attend to ParoleAgreement:Performance. wants, and care for him the balance of days, give he her said farm. The evidence dis accepted proposition; that closes that she February, her husband moved on said farm in 1913, and fully complied requirements. with all the above The respect decree of the circuit court in to this matter is [Gup well sustained authorities this State. Gupton, 47 37; ton v. Mo. Alexander Alexander, 150 Berg McQuitty Mo. Moreau, 416; 199 Mo. v. Wil- OCTOBER TERM,
Fishbaek v. Proek. Thompson, Merrill v. hite, Bryant 31.] 217 S. W. Stahl, charged is trial court in ex-
IY. with error cluding statements Fishbaek to dif- James E. presence parties Proek, of Ida ferent without agree- which tended show that never made the last to pleaded Appellants prove ment by the answer. offered to Gillespie respond- that after the return of Marion controversy, farm stated ents James E. Fishbaek “I I lonesome; Proek, to him: was had no use Mr. Fantie lonesome I had to I loved I was have a home. bring they back, be and I concluded I would them could help give farm; me and I could them start give work the farm and could them a start could I way.” It conceded Fant Proek that that Ida was alleged present not when conversation is to have oc- this curred. by respondents to have been
The contract claimed
1912 or 1913
en-
made with James E. Fishbaek in
alleged
any of these
into
conversations are
tered
before
Ida Fant Fish-
have occurred.
It is
claimed
present
any
are
of said conversations
back was
when
place.
alleged
These
were of-
to have taken
statements
tending E. Fish-
fered as evidence
show
upon by re-
relied
made no
back
such
opinion
spondents.
com-
the court
of the
We are
proof.
overruling
no error in
the above offers
mitted
*12
self-serving
They
declara-
under the
are classed
law as
117; Townsend
[Pursifull
tions.
257 S.
Pursifull,
v.
227.]
275 Mo.
Schaden,
dealing
supra
court was
case,
In
Pursifull
adoption
of
above
where
case,
statements
page
Judge
118,
in evidence. On
were offered
character
all the mem-
Division
in
One,
in behalf of
which
Graves,
“These self-serv-
concurred,
of said Division
said:
bers
long
ing
contract,
date of
after the
statements were
incompetent,
They
court
made.
were
one
weighing
receiving
in
it
evidence,
erred
508
COURT
SUPREME
OP MISSOURI,
final
of
[Townsend
determination
the case.
v. Scha
l. c.
den,
244,
204 S. W. 1076, and cases cited
App.
Powell,
Bosard
therein;
79
l. c. 187; 22
’’
193.]
p.
par.
220,
C. J.
Townsend
Schaden,
In
275 Mo. l. c.
we
244,
said:
“Appellant
erroneously
‘the
claims that
excluded
letters
statement of
Townsend made or written sub
sequent
showing
given
October, 1907,
that he had not
plaintiff.’
any
any
If
bonds
1907
such letters were
George
written, or statements
Townsend, sub
sequent
1907,
October,
were offered in evi
purpose
showing
for
given
dence
any
had not
plaintiff, they
properly
bonds
1907 to
were
ex
self-serving
incompetent
cluded as
declarations and
purpose.
[O’Day
Realty
v. Annex
191
Co.,
S. W.
p.
Tyler
l.
46
12 R.
L.
cited;
c.
and cases
C.
sec. 43,
Wright,
Dalby
Mich. 606;
Maxfield,
“Wherefore, daughter of Ida Prock is that the said Fant decree by adoption such is said James E. only owner is the sole law, heir at such sole and specific described; there be real estate above that performance the contract under said Ida which February, 1913, land in Prock moved.to hereby sepecifically it is be enforced same plaintiffs they hereby are be and and that out, carried real to said estate, of the record title divested hereby defendant, vested in Ida Fant said title is simple under thereof owner fee as the farm moved under they hereby pre- plaintiffs barred, are forever be estopped claiming or from said real estate cluded and any de- any therein, interest thereof simple owner Fant Prock the fee there- fendant is of. adjudge and decree order,
“The further court does nothing by plaintiffs their suit on either take petition count of their and that defend- or second first expended herein costs recover their ants hereof.” execution have accordingly judgment Higbee, affirmed. below is ., concurs.
C opinion foregoing PER CURIAM: The Bailey, opinion adopted All of the court. as the C., except judges J., P. Walker, concur, dissents.