This is a suit against the personal representatives and heirs of R. T. Wilson, deceased. The petition is in two counts. The first count states that when the plaintiff was a very young child, an agreement was made between her father and Mr. Wilson that the latter would adopt the “plaintiff as his lawful heir under the statutes of the State of Missouri;” whereupon her father delivered her to Mr. Wilson who received her in his family, where she was reared as his own child, dropping her own name, which was. Mary Elizabeth Triplett, and taking that of Minnie Wilson; that she continued to live in the family for a period of ^fifteen years, until she was married, and went to live with her husband in West Virginia; during her life in the family she demeaned herself as a dutiful daughter and received from Mr. Wilson and his wife the care that dutiful parents bestow on their children and the same that they bestowed on their own children; that she was everywhere in their social circle recognized and known as their adopted daughter; she married with the consent and approval of her. adopted parents, always supposing that she had been regularly adopted according to law and did not discover until after Wilson’s death that no deed of adoption had in fact been executed as the statute requires; that the contract was' fully performed on the part of her father and herself, and she prays a decree that it be specifically performed by the defendants.
The second count is in all respects like the first except that the contract alleged is not one to adopt the plaintiff, but it was that Mr. Wilson would take the plaintiff into his family as a member thereof, would maintain and educate her, treat her in all respects as one of his own children, and that she should share in his estate the same as though she, was his own child; the prayer is for a specific performance of that agreement.
The statements as to the contracts were denied by the defendants in their answers.
The plaintiff’s father moved from Illinois to Kansas City in the spring of 1865. He came in a covered wagon, bringing his family, which, besides himself, consisted of his three children, the oldest a boy then abont eight years old, the two others girls; the plaintiff was the elder of the two girls, she was probably then about six years old. The mother of the children was dead. The father was very poor. He remained in Kansas City during the summer and fall of that year, and in the early winter moved to Kansas, taking the boy with him but leaving the two girls, with whom or on what terms he left the little girls the plaintiff’s evidence does not very clearly indicate. It appears that they drifted or in some way came under the roof of a butcher named Haag through whose instrumentality one of them, the plaintiff, was taken into the home of Mr. Wilson, and the other into that of a Mr. Miller.
The father, Triplett, went to Kansas and there married. His condition, however, showed no improvement, his surroundings were poor. In the course of time he had a child of his second wife, and shortly after that he came to Kansas City and to the residence of Mr. Wilson and demanded his child, the plaintiff. At that time Mr. Wilson was absent from home, had gone east, but Mrs. Wilson saw Triplett and talked with him about the child. She stated to him that they had become attached to her and she to them and that they were reluctant to give her up. B.ut he insisted and Mrs. Wilson told him that she would get the child ready and send her to the railroad junction to meet him and this she did, sending her in charge of her son. After the plaintiff was left at the station, before her father arrived, she ran away and went to the home of Mrs. Swaney who lived near and besought her to hide her from her father, which was done and he returned to Kansas without her. After that she got back into the Wilson family again and re
The testimony shows that during all the years of her residence in the Wilson family she was treated with kindness and affection, in all respects as if she was Mr. and Mrs. Wilson’s own child, no distinction in her treatment was shown that of their own children, she was called Minnie Wilson, many of the acquaintances of the family supposed she was their child. Under this care she grew up to be a refined, educated, good woman and was married from the home of her foster parents, and.in turn she behaved as a good daughter to them.
The testimony offered to prove the alleged contract was as follows:
W. W. Jones, who was a brother of Triplett’s second wife, stated that he was in the habit of going with Triplett to Kansas City occasionally with a load of grain or hay, that on one of these trips he and Triplett were together on the street and they met Wilson, it was on the sidewalk near Wilson’s place of business, it was a casual meeting, Triplett expressed a wish to take the girl home with him, Wilson seemed rather loath or unwilling to give her up, said he would rather not give her up, that she had been in the family until they had become attached to her and she was as one of the family and he “proposed to Triplett that if he would let the girl remain there as their child, that he would take care of her and raise her as their child and that she should be one of his heirs, with his other children — that she should fare and share with his children — his own children. . . . When' he made that proposition Triplett said that under the circumstances, he had about as much family as he could well care for, and she had a good home there and if he would raise her with his children, as one of the children, make her one of his heirs with his children, why he would agree to leave her there — he would accede to Wilson’s proposition.” That conversation occurred in 1865-6 or 7, the witness thought
Solomon Jones, a half-brother to the other Jones, came to town with Mr. Triplett with a load of hay, went
Deposition of J. E. Triplett was read. He is the the brother of plaintiff, was born in Illinois in 1857, came to Kansas City with his father in 1865, went with his father to Kansas where he was reared, at the time his deposition was taken he was forty-three years old, could read a little but could not write. He was asked to state the circumstances under which his sister went to live with the "Wilson’s. “A. Why, when, she first went there it seems to me that she was at- another place and they came and took her but these parties I did not know about that time. I do not know. Q. Now do you know anything about who or under what circumstances she first went to the Wilson home, do you remember anything about that? A. No, sir. Q. After you moved over to Kansas, and your father married a second time, do you know whether or not he made any effort to get this plaintiff from the Wilson home? A. Yes, sir. Q. Do you know whether he made more than one effort? A. No, sir; that I know of. Q. Were you with him at the time? A. Yes, sir. Q. Well, just state what occurred? A. We went there after my sister, and to get her, and they did not want to give her up. Said it seemed just like giving up one of the family, and finally did agree to give her up, and Mrs. Wilson went and got her clothes. They told us to start on and he would bring her in a buggy, and we went on and thought they were coming back of us, we went over a little rise and kept looking back to see them but they did not come. My father said he did not know what to think about their
Attached to the deposition was a letter which the witness had received from the plaintiff which is as follows:
‘ ‘ Martinsburg, Sept. 5, 1898.
‘£ My Dear Brother:
££I suppose you have he'ard from my attorney ere this, as he said he intended writing to you. I just received a paper from him the other day for. me to sign, and it was . based on the strength of your letter I sent him. Now, if he does write to you or you should have to go to K. C. this fall, be very careful what you say or write, and stick to what you write to me, in regard to the understanding between Mr. Wilson and father. Just' as long as you can testify that there was a verbal agreement between father and Mr. Wilson that they took me as their own and intended I should share equal with their own children I am all right. I will know in a few days if I will have to go to K. C. or not. If I do, you can meet me there and we will talk it over. All you will have to do is to say just what you know will be to my interest and no more-. If dear father was only living 1 would.be all right. I don’t think there is much doubt as to my winning anyway. I want you to help me to fight for it. The attorney says the evidence is getting stronger all the time; at any rate it is worth fighting for, and if I win I will pay you for your trouble. So let us pray for success, dear brother. Well, it is late and I am tired, so will say good night, with much love to you and yours.
“Ever your true sister,
“ Minnie.
“P. S. When you write please call me Minnie, if you call me by name, as that is the name I always went by and the lawyer wants me to go by that name yet. Now, don’t forget, for the other name sounds very odd*666 to me anyway, for I was never called Eliza by any one. Excuse bad writing; my pen is poor.
“Mrs. S. S. Grantham.
“Martinsburg, W. Va.”
John. S. Thompson was a butcher from whom Wilson at the date of the events in question was in the habit of buying meat. Thompson had in his employ John Haag, the butcher with whom the children were first found after their father left them, and who brought one to Mr. Miller’s and the other to Mr. Wilson’s. Thompson testified to a conversation which he said he heard between Mr. Wilson and Mr. Haag: “Mr. Wilson came into the shop and called for John Haag. He was .working for me at the time. I called him out of the back room and Mr. Wilson said to him, says he, ‘John, I have got this thing all settled,’ and I was present; John says, says he, ‘Have you,’ and, ‘In what way.’ ‘I have adopted the child and got the papers,’ and John says, says he, ‘I am glad of it.’ ‘Now,’ says John, ‘Mr. Wilson, you intend to keep her ? ’ ‘I do intend to keep her, ’ he says, and he says, says he, ‘Mr. Wilson, I want to know what you will do for the child.’ As near as I can recollect, says he, ‘John, I have adopted that child as my own and I am going to take care of her and raise her and treat her and provide for her the same as my own other children.’ John says to him, says he, ‘Mr. Wilson, you won’t go back on that?’ says he, ‘I won’t. She shall have the division of everything I’ve got.’ ” The witness stated that Haag is now dead.
On cross-examination he repeated as the conversation what he had before said, and was asked: “ Q. He said in that conversation that he had made an agreement with her father? A. Yes, and got it made in writing. I did not see the writings. Q. Do you mean that he got this agreement about the girl between him and her father in writings? A. Yes. . . . Q. Then Mr. Wilson stated that day that his agreement with the
The deposition of S. J. Whitmore was read. He was an acquaintance of the plaintiff’s husband, stated that he had received a letter from him written from West Virginia asking him to call at the Wilson home and inquire the facts concerning the death of Mrs. Wilson ; witness did as requested, saw Mr. Wilson whom he had never known before, but who appointed the next morning to meet him at the Midland hotel, which appointment he kept. “I told him that I was asking this interview purely as a favor and that I desired to know when Mrs. Wilson died and the circumstances of her death. He told me the date of her death, and said that he was surprised that Minnie had not received all the facts concerning it, as he had written or authorized to be written, quite a- number of letters about it. . . . He seemed quite talkative and pleased to go over the matter with me. . . . He first of all volunteered the information that a will had been left by Mrs. Wilson and that Minnie had shared equally with the rest of the children. . . . He stated that she was the daughter of a man who did not seem able to provide for his family on account of some misfortune, which I don’t recall. Mrs. Wilson in some way or other found this little girl, who was probably not more than three years old. I am not very clear as to her age. She took her to her home. . .. . Mr. Wilson and his wife took care of this child for some length of time and .became very much attached to her. In the meantime the father of the child seemed to have located somewhere in Kansas and got in somewhat better circumstances, and came to Kansas City to
The evidence for the defendants tended to show as follows:
The plaintiff’s father abandoned the two little girls —left them in the street near the butcher shop of John Haag. Haag took them in and kept them a few days trying to get homes for them. The younger one, Maggie, he got temporarily into the home of Almon Fernald. After Fernald haji kept her about six months, her brother came to see her, and Fernald, learning from the brother that Triplett was near Wyandotte, Kansas, took the boy and girl in a buggy and went to Wyandotte to find the father. He found a house where it was said Triplett lived, but did not find him or any one at the house; he left the little girl at the house of a person who lived near there with the request to have her delivered to her father when he should return. Two days after-wards her father came to Fernald’s house in Kansas City, and begged him to take Maggie and keep her,, but Fernald declined. A few days after that a stranger brought the child to Fernald, and demanded $1.50 for bringing her, which Fernald declined to pay, but the child was left with him, and the next day he took her to Mr. Miller’s, who received her and gave her a home, and she was reared in Mr. Miller’s family.
The other little girl, the plaintiff, was first given • by Haag to Mrs. Smith, who in a short while got her into the Wilson home.
After the father’s marriage in Kansas and the birth of a child, he came to Kansas City and demanded the plaintiff of Mrs. Wilson. . The result was Mrs. Wilson told him that as soon as she could get the child ready she would send her to the railroad junction to him, which she did. But as soon as the little girl was left at the station, before her father arrived, she ran away
The finding and judgment were for the defendants in the first count of the petition, but on the second count the finding and judgment were for the plaintiff, decreeing that she was entitled to a child’s part of Mr. Wilson’s estate. From that judgment the defendants prosecute this appeal.
There is no difference of opinion between the counsel as to the law of this case. Oral contracts of the kind stated in the petition, when proven according to the standard of proof required, and ’shown to have been performed on the part of the parent and that of the child, when to suffer it to go unenforced would be to suffer a fraud to be perpetrated, will be decreed to be specifically performed. [Gupton v. Gupton, 47 Mo. 37; Sutton v. Hayden, 62 Mo. 101; Sharkey v. McDermott, 91 Mo. 647; Healey v. Simpson, 113 Mo. 340; Nowack v. Berger, 133 Mo. 24; Steele v. Steele, 161 Mo. 575; Lynn v. Hockaday, 162 Mo. 111; Kinney v. Murray, 170 Mo. 700; McElvain v. McElvain, 171 Mo. 257; Goodin v. Goodin, 172 Mo. 48; Asbury v. Hicklin, 181 Mo. 658.]
The only question before us now is, does the evidence sustain the plaintiff’s claim?
The first count in the petition states a contract to adopt the plaintiff under the forms of the statute, and it states that until the death of Mr. Wilson she did not
In all the cases of this kind that have come before this court we have held 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. It will not satisfy the requirement to show that there was an understanding of an indefinite character, leaving its terms more or less to inference, that the child was to be taken and reared as a member of the family. A contract to adopt a child is one thing and a contract to make a will in the child’s favor is another. If a child is adopted it is entitled to inherit as an heir •if the adopting parent should die intestate, but it is liable to be cut out by will, as one’s own child is. If there is a valid and enforcible contract to make a will in favor of the child, then although the child will not inherit as an adopted one would, yet it can not be cut off by a will that violates the contract. When a plaintiff comes into court with a case of this kind, there should be no doubt in her pleadings or her proof as to her contract. She should know whether she is claiming as an adopted child or as one entitled to a testamentary provision.
The plaintiff’s petition shows that when she brought this suit she was uncertain herself as to her attitude to the Wilson family. She gives us to understand in her first count that she supposed she had been adopted in the form of the statute and did not discover the contrary until after the death of Wilson, and in the second count she states a contract that would entitle her to a share in the estate even if there had been a will cutting her out. Her proof even as far as it goes is also un
The trial court having found against the plaintiff on the first count, and there being no complaint of that finding, we may assume that there was no contract to adopt the plaintiff. Does the evidence justify the finding of the chancellor on the second count?
We have been compelled to set out at great length the evidence for the plaintiff, because our opinion as to the character of evidence required to sustain a case of this kind could not be shown in this case unless the substance of the evidence upon which we pronounce judgment is given.
The learned counsel for the plaintiff, conceding that the character of the evidence must be clear, unequivocal, cogent and convincing beyond a reasonable doubt, contend that the evidence for plaintiff measures up to that standard. They say they have proven the contract by five witnesses, three who heard the contract made, and two who heard Mr. Wilson say he had made it. No two of these witnesses, however, testify in reference to the same, contract, no two of them were present and heard the same conversation. The testimony of each one refers to a scene and a conversation concerning which there is no living witness except himself; the alleged parties are dead and no other witness now living was present. It can not be said, therefore, that these witnesses corroborated each other. In fact there is an inconsistency in the evidence of any one of them with that of the others. Each one undertakes to state it as the original contract and the conclusion of the matter, no reference being made in either conversation to a similar agreement. The dates are so confused that we do not know which contract purports to have been first in
The plaintiff’s proof is no stronger than the testimony of the strongest one of these three witnesses; there can be no combination of their strength because each is independent and relate to a separate transaction. Can it be said that the testimony of either is sufficient in itself to sustain the case?
Each was drawing on his memory to recall a conversation that occurred thirty-five years ago, and each confessed that the lapse of time had caused every other circumstance connected with the event of which he was speaking to fade from his memory or be remembered only with confusion, except the words of that conversation. W. W. J ones on cross-examination said he would not undertake to repeat the language that either party used and when pressed to state something else that he remembered of that occasion said that he had heard a great deal of talk about the girl being at Wilson’s and “I have got some impressions on my mind, but I don’t know how they — how I got them.” It is out of such a
The two other witnesses relied on to prove the contract testified, one to a conversation which he overheard, the other to a conversation which he held wherein Mr. Wilson made admissions in regard to the plaintiff’s relation to him.
In Pitts v. Weakley, 155 Mo. at page 138, this court expressed its opinion of that kind of evidence. It is so liable to be incorrect owing to the facility with which the witness may have conceived a wrong impression and the difficulty of remembering and repeating the words in the connection and sense in which they were used. Even as to conversations of persons still living it is not regarded as a high grade of evidence, but when it relates to what men who are now dead are said to have said it should be received with caution.
If Mr. Wilson said what these witnesses say he said, his statements were not true. Thompson’s testimony was that Wilson said he had adopted the child and had done so in writing. Plaintiff does not claim that there was any deed of adoption executed or that there was any evidence in writing to prove the contract. There was
Whitmore was a stranger to the Wilsons, but had received a letter from the plaintiff’s husband, asking him to inquire and write him about Mrs. Wilson’s death. He did not keep the letter or his own reply thereto. He had never seen Mr. Wilson before and never saw him afterwards, but in that one interview Mr. Wilson was talkative and told the witness many things. He told him that Mrs. Wilson had by her will left the plaintiff an equal share of her' estate with her children, which was not the fact, although she did leave her a legacy. He told him of the plaintiff’s history, that “she was the daughter of a man who did not seem able to provide for his family on account of some misfortune which I do mot recall.” If Mr. Wilson ever told any one of a misfortune that befell the plaintiff’s father rendering him unable to provide for his family, he told something that he knew nothing about, and which, so far as the record in this case shows, was untrue. If he told the. witness that after Triplett went to Kansas he got in better circumstances, he told him what is not shown to have been the fact. According to this witness, Wilson told him that when the father first came for the child she was sent to a neighbor’s and kept in hiding until he (Wilson) returned from the east, and then “after many conferences and proposals an agreement was reached. ’ ’ Comparing these alleged statements with the facts as shown by the plaintiff’s own evidence we see the wisdom of the rule which places this kind of evidence in a low grade. The witness wag trying to repeat the conversation as he -then recollected it, but it is very certain that he did not recollect it correctly, for it is improbable that Mr. Wilson would have made so many statements that he knew were not true.
In our judgment the plaintiff has failed to prove her ease.