198 S.W.2d 16 | Mo. | 1946
Lead Opinion
The appellant, Robert Lee Holland, seeks to have himself declared the adopted son of Joseph Bailey Martin. If he is successful he inherits Bailey Martin's $40,000 estate to the exclusion of the respondents, Martin's brother, a sister and nieces and nephews.
In brief outline the facts are that Bailey and Mary Martin were married in 1895 and lived on a farm, a part of the Martin's ancestral land, near Williamsburg in Callaway County. Lee Holland's mother was Mrs. Martin's half sister. Mrs. Holland died in Kansas City in 1902 and her husband, Lee's father, Cal Holland, brought Lee to the Martin farm home after his wife's funeral at Sedalia. Lee was then a child five or six years of age. He lived in the Martin home from 1902 until after his marriage in 1916. And sometime after he was married Mr. Martin built a house for him on the farm and Lee and his family of ten children lived there until 1936. In 1936 Lee moved away and at the time of the trial lived in Kansas City, though some of his children were often in the Martin home or in the house built for Lee after 1936. Mrs. Martin died in 1937 and Lee received one seventh of her $1,272.88 estate as a half nephew. Mr. Martin died in 1944 and this suit followed in 1945.
Throughout the years Lee's father occasionally wrote to him and to the Martins but except for one brief visit, possibly in 1903, never saw Lee after leaving him with the Martins in 1902. From 1902 until 1916, while Lee was a member of the Martin [17] household, the Martins clothed him, sent him to school, took him to church and, in short, treated him as a natural father and mother would treat a son, so much so that some thought he was their son. The Martins had no children. Lee called them, as many did, "Uncle Bailey" and "Aunt Mary" and they usually called him "Lee." As soon as he was old enough he began doing farm work and by 1916, apparently, did most of the work required on a stock farm, for which, his wife says, he received no pay. However, Lee and Mr. Martin seem to have been partners in raising certain stock. After his marriage he continued to do the farm work though he lived in the house Mr. Martin built for him. About that time Mr. Martin may have given him forty-seven acres of land, but whether he did is not made certain by this record. In addition to farming he did some neighborhood blacksmithing and eventually began driving a truck and doing some mechanical work. *770
[1] The theory of the appellant's case, as stated in his brief, is "upon an agreement which he claims that Joseph Bailey Martin and his wife, Mary Martin, made with Calohil M. Holland, plaintiff's father, when plaintiff was a child of approximately 5 years of age" (Remmers v. Remmers (Mo.), 239 S.W. 509) and "the acts, admissions and conduct of Joseph Bailey Martin and his wife with reference to the child, clothing him, educating him, taking him to church, on shopping trips and visits, and receiving the reciprocal benefits of his companionship, love and affection, and the fruits of his labor over a period of approximately thirty four years." Holloway v. Jones (Mo.), 246 S.W. 587.
In support of his theories the appellant relies upon the outlined facts and the evidence, largely from Lee's relatives and one or two boyhood friends and neighbors, that Mr. Martin called him "the boy," once said "son," or in 1911 said "take care of our son," or as the fact appeared that "Lee was like their own son." One witness said that Mr. Martin once told him that he had the boy and "was going to make him hisn." Others said that Mr. Martin had remarked that Lee was "to have everything" when he died or, in substance, that what we have belongs to Lee.
However, these facts and circumstances do not prove an agreement on the part of the Martins with Cal Holland in 1902 or 1903 to adopt Lee. They may constitute corroborating and supporting circumstances but they do not establish an agreement, nor do the facts, as shown by acts, conduct and admissions indubitably lead to the conclusion of an agreement in a consensual sense. Kay v. Niehaus,
[2] As to the second theory presented in the appellant's brief, we pass the question of whether there must in fact be some evidence of an agreement to adopt, in addition to the subsequent circumstances of apparent performance of the oral agreement, or some attempt to comply with some formal, recognized [18] method of adoption (Kay v. Niehaus, 298 Mo. l.c. 214, 249 S.W. l.c. 629; Niehaus v. Madden, 348 Mo. l.c. 777, 155 S.W.2d l.c. 144) and assume that the status of adopted child may be established as a fact from the mere circumstances of taking a child into one's home as his own, voluntarily assuming the status of a parent, giving and receiving affection and companionship and securing the services of the child, — or, as it is sometimes denominated, an adoption by estoppel. Shelp v. Mercantile Trust Co.,
It is true that Bailey Martin need not have used the word "adopt" or have changed Lee's name from Holland to Martin to indicate that he intended to or had adopted Lee. Taylor v. Coberly,
All the facts and circumstances could be weighed, tested and contrasted in the light of the auxiliary rules but even so a most favorable construction of the appellant's evidence is not necessarily consistent alone with adoption. Benjamin v. Cronan, 338 Mo. l.c. 1186, 93 S.W.2d l.c. 979. In any event, in trying the case anew as we have, we cannot say that the appellant's evidence is so clear, cogent and convincing that we may confidently assert without doubt that Bailey Martin in fact adopted Lee. Barnett v. Clark (Mo.), 252 S.W. 625, 628; Stillman v. Austin, supra; Benjamin v. Cronan, supra. We agree with the trial court's finding, to which we give deference, that Lee Holland was not adopted by Mr. Martin. Niehaus v. Madden, 348 Mo. l.c. 778, 155 S.W.2d l.c. 145.
Accordingly, the judgment is affirmed. Westhues and Bohling,CC., concur.
Addendum
The foregoing opinion by BARRETT, C., is adopted as the opinion of the court. All the judges concur.