Heath v. Cuppel, 163 Wis. 62

Heath v. Cuppel

163 Wis. 62

| Wis. | 1916

SiebecKER, J.

It is contended that the court erred in awarding judgment dismissing plaintiff’s complaint upon the *67findings in the case. The basis'of this contention is that the contents of the letter written by Charles Cuppel, deceased, in 1870 to Mrs. Ames, with whom plaintiff was then living with the consent of his mother, and the entry by plaintiff into the family of deceased and receiving the support, care, and education of a son until he departed therefrom after arriving at the age of majority, under the circumstances heretofore stated constitute an adoption agreement. It is fundamental to the specific performance of a contract of adoption, where the writing relied on as containing the contract is lost, that the evidence adduced to establish it must be clear, satisfactory, and convincing in its probative force. In such cases the facts must not only be consistent with performance of such a contract, but must also be such that they cannot reasonably be harmonized with any other theory. Wales v. Holden, 209 Mo. 552, 108 S. W. 89. Applying these rules to the case before us, it is manifest that the trial court properly dismissed the plaintiff’s complaint. The facts found by the court do not establish a contract of adoption. The contents of the letter as established are in their most favorable aspect no more than a declaration by Charles Cuppel, deceased, that he intended to adopt plaintiff. This, however, is no more than a personal declaration that he had determined to adopt him, and fails to show that a contract of adoption had in fact been made with plaintiff’s mother, the only person who could contract for plaintiff in this matter. The evidence in the case discloses nothing in the nature of direct proof that a contract of adoption had ever been consummated between deceased and his wife, the plaintiff’s mother. The only evidentiary facts bearing on the subject are that plaintiff’s mother, subsequent to the writing of the letter, brought him from New Hampshire to their home, that deceased received plaintiff into his home and treated him as a son while residing there, and that plaintiff lived there in that capacity until he attained his majority. This course of events is perfectly harmonious with the idea that plaintiff became a member of decedent’s house-*68bold as a steps on. It was natural that after plaintiff’s mother became the wife of the deceased she would desire to have her son cared for and nurtured in her household and that the husband and stepfather acceded to this, having'in contemplation the fact that he would adopt him. These facts and circumstances fail to establish that the mother and stepfather at any time consummated an agreement for his adoption and that plaintiff pursuant thereto entered the family and rendered the services to the deceased. The conduct of plaintiff, his mother, and the decedent, from the time plaintiff entered their family in 1810 to the time of decedent’s death in 1911, strongly negatives the claim that such a contract existed. The facts and circumstances are very persuasive to the effect that plaintiff at no time prior to decedent’s death understood that his stepfather had made an agreement for adopting him and that he was in fact the adopted son. The evidence tending to show that the deceased regarded the plaintiff as an adopted son is meager and unconvincing. His treatment of plaintiff during his minority and providing for him as he did is more in harmony with the treatment that a- stepfather under like circumstances bestows on a stepson. These con ditions also refute the contention that the court erred in not finding an express contract of adoption, as plaintiff claims, The facts found by the court contain every ultimate fact sustained by the evidence and embraced in the issues raised. An attentive and exhaustive study of the evidence has led us to the conclusion that the trial court’s findings are as favorable to the appellant as the evidence will permit and that the exceptions thereto are not well taken. It is considered that the evidence fails to establish the alleged contract of adoption and hence plaintiff is not entitled to any relief in the case. There is no reversible error in the record, and the judgment of the circuit court must be sustained.

By the Court. — The judgment appealed from is affirmed.