119 Mo. App. 183 | Mo. Ct. App. | 1906
This proceeding is by an adopted son of James M. Braden, deceased, against the executor of the will and deceased’s three daughters, whereby plaintiff, who was not mentioned in the will, seeks to be declared entitled to a share in the estate. The judgment in the trial court was for the defendant.
James M. Braden was the grandfather of the plaintiff, being the father of plaintiff’s mother. The latter was divorced from her husband the plaintiff’s father. Afterwards plaintiff’s mother married a man named Snow, her name becoming Betsy Catherine Snow. Brad-en adopted plaintiff as his son by the following deed in which plaintiff’s father joined:
“This indenture, made and entered into this 13th day of November, A. D. 1877, by and between James M. Braden and Zachariah Fugate. The condition of this obligation is that; whereas, James M. Braden hereby agrees and binds himself to take and raise and maintain a certain boy, the son of Zachariah Fugate, named Elias W. Fugate, until the said Elias W. Fugate shall become twenty-one years of age. The said James M. Braden hereby agrees and binds himself to raise and educate the*187 said Elias W. Fugate as if he was his own child, and hereby obligates himself to make the said Elias W. Fugate an equal heir at law with his own children, and that he shall share his property. equally with his own children, and in every respect treat the said Elias W. Fugate as one of his own children and the said Zachariak Fugate hereby agrees to leave the said Elias W. Fugate entirely to the custody and control of the said James M. Braden. To the performance of all the stipulations herein contained they each pledge and obligate themselves. And the parties further agree to have this instrument recorded in the recorder’s office of Jasper county and State of Missouri.
“In witness of the above the parties, James M. Braden and Zachariah Fugate, have hereunto set their hands and seals the day and year above written.”
After the adoption of plaintiff, Braden made the following will disposing of his estate, making no provision for plaintiff and not mentioning his name; viz.:
“Second. I give, devise and bequeath all of my property, real and personal (after the payment of my just debts, if any) to my beloved wife, Susan Braden, to to have, use and enjoy for and during her natural life; and after the death of my beloved wife it is my will and desire that all of my real estate and what remains unexpended of my persona] estate shall be equally divided among my three daughters, viz: Betsy Catherine Snow, Alice Robinson and Mary Braden, and in case my said wife, Susan Braden, should not be living at my death, then and in that event I desire and direct that all of my property vest immediately at my death in my said daughters in equal shares.”
There is no doubt but that a regularly adopted child, so far as the question in this case is concerned, becomes entitled to the same consideration as a child in fact. By the terms of section 4611, Revised Statutes 1899, a testator who fails to mention a child in his will, is considered to have died intestate as to such child, and he is
But notwithstanding the statute reads that omitting to name or provide for a child leaves him with a right to inherit his share of the estate, yet his name may be omitted and he may be unprovided for, and still be disinherited if there is anything in the will to show that he was not forgotten. The main point, made by construction, is, not is he .named as required by statute, but was he forgotten? “And whenever the mention of one person, by a natural association of ideas, suggests another, it may reasonably be inferred that the latter was in the mind of the testator and was not forgotten or unintentionally omitted. . . . The mention of grandchildren will exclude the parent. Weld v. Brewer, 2 Mass. 570; Church v. Crocker, 3 Mass. 17.” [Woods v. Drake, 135 Mo. 393.]
When it comes to a question of whether a certain fact, is shown to be remembered, that is to say, is shown to be in the testator’s mind, the thing relied upon as showing it, ought to be such a thing as establishes such recollection or memory beyond doubt. The will, therefore, should include, within its terms, something which will destroy the presumption of lapse of memory, that
Therefore, left to us as an original question, we would not think it an unreasonable thing to say that a grandfather, in mentioning the name of his child, might not think of, or have in mind each of that child’s children. But the question has been decided by the Supreme Court of this State and the opinion too was written by one of our greatest jurists, Judge Scott, wherein it is held that a mention in the will, of a deceased daughter of the testator, Avas sufficient to show that he had not forgotten her children. [Guitar v. Gordon, 17 Mo. 108.] In the face of such high authority to say nothing of its control over us, our own views become unimportant and dwarf into mere speculation.
We cannot allow the suggestion made by plaintiff’s learned counsel in his oral argument, supplemented by the brief, to distinguish this case from the authority to which we have referred. It is said that the source of
We must therefore hold with the learned special trial judge, that the mention of the testator’s daughter, Betsy Catherine Snow, shows that he had not forgotten this plaintiff who was her son and bore the double relation to the testator of adopted son and grandson.
II. But there is another phase of the case to be gathered from the deed of adoption and which is among plaintiff’s points. It will be observed that the deed is of a contractual nature and that thereby plaintiff was to be an equal heir with Braden’s other children. Such contracts are valid in this State. [Steele v. Steele, 161 Mo. 566; Sharkey v. McDermott, 91 Mo. 647; Healey
In this case plaintiff’s mother and father were divorced and the custody, care and control of the plaintiff, by the judgment of the court pronouncing the divorce, was given to the mother, and she did not join in the deed of adoption. While it is true that a valid deed of adoption may be made by the adopting parent without the real parents joining therein so as to make the child an adopted child as against the adopted parent (Clarkson v. Hatton, 143 Mo. 47, 54) ; and while it is true that the mere awarding of custody of the child (nothing said as to maintenance) does not relieve the father of the duty of support (Keller v. St. Louis, 152 Mo. 596); yet, it must be seen and recognized that the consideration for the contract to make of plaintiff an heir, so as to taire away the power of disinheritance, was that plaintiff would come into his custody and society and become a source of affection and attachment. He should become as a child to a father. [In matter of Clements, 78 Mo. 352.] This the plaintiff had no power himself to bestow and the father who signed the deed was deprived of any such power by the judgment of the court taking from him the custody and care. And conceding that in such circumstances as here presented the father had a right to any earnings of plaintiff (Keller v. St. Louis, supra,; Meyers v. Meyers, 91 Mo. App. 151); yet it must be true that he cannot override the judgment of the court granting custody and care to the mother, by transferring such custody to another. It must be that while the father in such case may be entitled to any money which the child may earn, he cannot in the nature of things, consistent with the custody, care and control being in the mother, order and direct the child and decide for him when, where and what he shall do. It is therefore clear that there was no sufficient consideration to support a theory of adoption in the contractual
Considering the foregoing, we feel constrained to also adopt the view of the special trial judge as to this branch of the case. The judgment will therefore be affirmed.