The plaintiffs instituted this suit in equity on December 21,1909, in the circuit court of the city of St. Louis, setting up in their petition that they were the only children of one Thomas Hudson, formerly a resident of that city; that in the year 1876, Lavinus Dunham and Elizabeth Dunham, his wife, having no children of their own, entered into an agreement and contract with Thomas Hudson, the father of plaintiffs, that he should surrender the custody and care of plaintiffs, his four daughters, aged at that time respectively, seven, ten, eleven and twelve years, to Lavinus and Elizabeth C. Dunham, and permit them to adopt plaintiffs as their children, and that the Dunhams should adopt plaintiffs as their own children and legal heirs; that this agreement was fully performed by Thomas Hudson, the father, by his immediately surrendering to the Dunhams the care, custody and control of plaintiffs, his minor children; that the agreement was fully performed by plaintiffs on their part, in that they immediately went to live in the household of the Dunhams and remained in the household until they respectively became of age or self-supporting; that they took the name of their adopted parents as their own surname and continued to bear it until after they had become of age and self-supporting, when they resumed the name of Hudson with the approval of the Dunhams; that they addressed the Dunhams as father and mother, respectively, and rendered to them the obedience, affection and services, and discharged all of the duties owed and rendered to parents by children. They further aver that the agreement of adoption was performed by the Dunhams in this: That they immediately assumed the care, custody and control of plaintiffs and maintained and exercised the same during the respective minorities of plaintiffs; that they gave the children, plaintiffs here, the name of Dunham, addressed the children and introduced them to their relatives .and others as their
Defendant Troll, as public administrator, admitting that he is in charge of the estate as such, avers that the estate is in process of administration by him as such public administrator under the direction of the probate court of the city of St. Lords; that no final settlement thereof has been made by him; that at the time of filing the answer and until after final settlement has been made, he is not liable or subject to the action of plaintiffs herein for distribution of the assets thereof, and is at all times liable and subject only to the orders and judgment of the probate court of the city of St. Louis, in the exercise of its provisional jurisdiction in respect to the jurisdiction and distribution of the- property of the estate held by him as administrator. Denying all knowledge or information on which to found a belief as to the averments of the petition, other than those averments alleging him to be in charge of the estate as public administrator, and demanding strict proof thereof, the administrator denies plaintiffs are entitled to the relief asked or to any decree whatever as against him and prays that he may be dismissed with his costs.
Defendant Aitken answered by general denial.
The other defendants, admitting that defendant Troll, as public administrator, is in charge of the estate and now acting as administrator thereof, and that it is now in the course of administration in the probate court, and admitting that plaintiffs were children of
Plaintiffs replied to this answer by a general denial.
After so finding the decree proceeds as follows:
“And the court doth further find that Elizabeth C. Dunham died on the 22d day of August, 1907, while a resident of the city of St. Louis, leaving an estate in said city consisting of personal property, that the defendant Harry Troll, as the duly qualified and acting public administrator within and for said city of St. Louis, on the 3rd day of September, 1907, took charge of said estate and has ever since been and now is administering upon said estate as the administrator thereof, and is in possession and control of all the assets and property in the city of St. Louis belonging to said estate, and that all said assets and property are within the jurisdiction of this court, and are of a value of at least $25,000.
“That Lavinus Dunham, the husband of said Elizabeth C. Dunham, died in the city of St. Louis on or about the 6th day of August, 1891, leaving a last will and testament wherein and whereby he undertook to leave to said Elizabeth C. Dunham, his wife, all his property with the exception of legacies of one dollar each to the plaintiffs, as his adopted daughters.
“ That neither said Lavinus Dunham, at the time of his death, nor said Elizabeth C. Dunham, at the time of her death, left any issue, and that defendants Madeleine J. Besett, Lords T. Dunham, Solon C. Dunham, Edward C. Dunham, Ida D. Blackwell, Mary C. Dunham, Alice C. Dunham Hannay, herein sued as Alice C. Dunham, Ralph W. Dunham, Egbert H. Dunham, Cornelius L. Dunham, Prank Dunham and Stephen A. Dunham claim title to the estate of said Elizabeth C. Dunham as nephews and nieces, respectively, of said Lavinus Dunham, and the defendant Robert Walter Aitken, as a cousin of said Elizabeth C. Dunham.
*687 “The court doth further find that no children were ever born to said Elizabeth C. Dunham and her husband, Lavinus Dunham, or either of them; that the plaintiffs were the children of one Thomas Hudson, now-deceased, who formerly residéd in the city of St. Louis; that, some time during the year 1876, after the death of plaintiffs’ mother, the said Elizabeth C. Dunham and her said husband, Lavinus Dunham, both at the time residents of the city of St. Louis, entered into a contract with said Thomas Hudson, whereby he agreed to surrender to said Elizabeth C. and Lavinus Dunham the care and custody of his said four children the plaintiffs herein, upon condition that said Elizabeth C. Dunham and Lavinus Dunham would adopt them and raise them as their own children and legal heirs; that at the time of said contract, the plaintiff Mary was about twelve, the plaintiff Jessie about eleven, the plaintiff Elizabeth about ten and the plaintiff Agnes about seven years of age; that, immediately after making said contract and in pursuance thereof, the said Thomas Hudson did surrender to said Elizabeth C. and Lavinus Dunham the care, custody and control of his said four children, the plaintiffs, and the plaintiffs were immediately taken by the said Elizabeth C. and Lavinus Dunham into their household and remained there until they respectively became of age and self-supporting; that they were also, immediately upon being so taken into the household of said Elizabeth 0. and Lavinus Dunham, addressed by them and introduced to others by the name of Dunham, and themselves adopted and continued to be addressed by and to bear said name until after they had respectively become of age and self-supporting; that they addressed said Elizabeth C. and Lavinus Dunham as ‘mama’ and ‘papa’ and were, in turn, addressed by them as their adopted children, and, during all the time they lived with said Elizabeth C. and Lavinus Dunham, were*688 introduced and spoken of by them to other persons generally as adopted children.
“That the said contract of adoption entered into between the said Thomas Hudson and the said Elizabeth C. and Lavinus Dunham was fully performed by said Thomas Hudson by immediately surrendering the full care and custody of his said four children to said Dunhams, and thereafter exercising no further control over them; that it was performed by the said Elizabeth C. and Lavinus Dunham by immediately assuming the care, custody and control of the plaintiffs, and thereafter, until they respectively became of age and self-supporting, retaining and exercising such care, custody and control over them and furnishing them such education, maintenance and support and bestowing upon them such attention, care and affection as are usually bestowed upon children by their parents, and that it was fully performed by the plaintiffs by immediately entering the household and becoming members of the family of said Elizabeth C. and Lavinus Dunham, and from that time until they respectively became of age and self-supporting, rendering to them such obedience and services and bestowing upon them such affection and attentions as are customarily rendered to and bestowed upon parents by their children; that the said contract of adoption was, upon the part of said Elizabeth C. and Lavinus Dunham, a joint contract, but that no written deed of adoption was ever signed and executed by both and recorded in the city of St. Louis, as provided by the statutes of this State;' that said Lavinus Dunham, however, frequently acknowledged said adoption before his death, and also by his will, and that said Elizabeth C. Dunham also acknowledged said adoption, both before and after her husband’s death, and by her acts and words ratified said adoption after the first day of November, 1889.
“The court doth therefore order, adjudge and decree that the said contract between Thomas Hudson*689 and Elizabeth C. and Lavinus Dunham became and is in every respect an executed deed of adoption and, as such, established the status of plaintiffs as lawful children and legal heirs of -said Elizabeth C. and. Lavinus Dunham and entitles them to the full rights of such children and heirs in the estate of said Elizabeth C. Dunham; that the said Elizabeth C. Dunham, having died intestate and without issue of her body, the plaintiffs are her sole heirs and are entitled, in equal shares, to the whole of her estate, remaining for distribution upon final settlement thereof, after, the payment of all lawful claims properly allowed against said estate and the costs of administration; that the costs of this proceeding be paid by the defendants, except the defendant Harry Troll, administrator of the estate of said Elizabeth C. Dunham, deceased.”
Interposing a motion for new trial and excepting to the action of the court in overruling it, defendants have duly perfected their appeal to this court.
When the cause was first reached on call before us, being of the opinion that the amount involved, apparently $25,000, was in excess of the jurisdiction of our court, we, of our own motion, transferred it to the Supreme Court. That court, on consideration and on motion of counsel for appellants, transferred it back to our court, as a cause not within the jurisdiction of the Supreme Court. So we proceed to its determination.
It was argued orally before us by counsel, who have also submitted elaborate briefs and arguments.
Counsel for appellants make fívé points upon which they claim reversal.
The first point made is on error of the trial court in refusing to dismiss plaintiff’s suit on the ground that it was not lawful for Mrs. Dunham to adopt the plaintiffs, even by deed, since her husband was a nonresident of Missouri, and that it follows that she could
The second point made is that the trial court erred in refusing to dismiss plaintiffs’ suit because, even if Mrs. Dunham made the alleged contract, it was void, since she was a married woman and did not pursue the statutes by which a married woman could, in 1876, in any case, adopt a child. That is covered by what we have said and what the learned trial court has said as to ratification after November 1, 1889.
The third point is that the court erred in refusing to dismiss plaintiffs’ suit because the evidence does not show that Mrs. Dunham promised to adopt the Hudson children.
Reading and considering the evidence as abstracted and set out by counsel for the respective parties, we find no reason to disagree with the conclusion reached on it by the learned trial court. It will serve no useful purpose to reproduce it here in detail. Without doing that, excerpts from it would not be very satisfactory. It- is sufficient to say that tested by the many cases which have been before our own courts, it establishes
Looking outside of our own State we find the same rule prevailing. We venture to quote from a few of these later.
Van Tine v. Van Tine et al., 15 Atl. Rep. 249, S. C. 1 L. R. A. 155, a decision by Vice-Chancellor Bird of New Jersey, presents features very much in common with the case at bar, so far a,s the facts of adoption are concerned. There was no execution of adoption papers. The father, a widower at the time, surrendered the custody of his daughter to his sister, who was childless, with the full understanding between them that the sister, the aunt of the child, would take care of her as her own child, provide for her and bring her up as her own. This, says the Vice-Chancellor, was “as full and complete a surrender of the rights of the father in or to the child as it were possible for him to make without a writing. It was also as- complete an acceptance of the child on the part of the aunt, coupled with every fair, just, and reasonable obligation to treat her as her child in all respects, as could be effected without writing.” Mrs. Stryker (the aunt) immediately took charge of the child, treating her in every respect as her own.
Testing the evidence here by the principles applied in these cases, we hold that the fact of the adoption of these respondents by Mrs. Elizabeth C. Dunham has been established.
The fourth.point is that the trial court erred in refusing to dismiss plaintiffs’ suit.because it is barred
Mrs. Dunham died August 22, 1907; this suit was instituted December 21,1909. Dr. Dunham named the children in his will, as adopted daughters, and left each of them one dollar, giving the residue of his estate to his wife. He had a right to do this, even in a case of children lawfully born to him; there being no contract to leave anything to them, it was sufficient that he named them as children; had them in mind when he disposed of his estate. He was under no obligation to leave them any particular share in his estate. The bulk of it passed to the wife. She could have disinherited the children by will, but dying intestate they took as children and as her heirs. [Davis v. Hendricks, 99 Mo. 478, l. c. 483, 12 S. W. 887; Westerman v. Schmidt, supra.] Until Mrs. Dunham died, no right of action existed in these plaintiffs or in any one for them. Their father had none, for he had no reason to question the fact of adoption, even if he knew that the law required papers to be executed and that without them adoption was not valid—absent acts amounting to adoption. He was not, so far as the evidence shows, a man in the situation of the one referred to in Wales v. Holden, supra, who was one of the most prominent lawyers of his part of the State (1. e. 556-561); was not shown to be learned in the law. For that matter neither were Dr. or Mrs. Dunham. In Sharkey v. McDermott, supra, a case having many features common to that at bar, it is held that no right of action existed until after the death of the wife. When she died intestate the adopted child could then assert its rights; until her death it could not be determined whether the adoption had been repudiated or recognized. So in Healey v. Simpson, supra, the suit was brought long after the claimed adoption by acts.
In Chehak et al. v. Battles et al., supra, the
In Van Tine v. Van Tine, supra, the action of the child claiming to have been adopted and seeking to enforce her rights as an adopted child, was not brought until some twenty years or more after the claimed adoption.
These are a few out of many cases which go to show that there was no right of action until the death of Mrs. Dunham and no laches on the part of plaintiffs. Nor had either the five or the ten year statute run when this suit was instituted.
It is further urged in the reply brief by counsel for appellants, answering a suggestion made by counsel for respondents as to the jurisdiction of the court to entertain the action, that if it is true that a court of equity will not entertain a suit to establish a social status, the judgment should be reversed and the suit dismissed out of court; that being its sole object; it being further claimed that the public administrator, from the beginning has denied the jurisdiction of the circuit court to make any order touching the disposition of Mrs. Dunham’s estate, he insisting that that is a matter within the jurisdiction of the probate court alone. As will be noticed, this proposition as to the jurisdiction of the court is put rather tentatively and no authorities whatever are cited in support of it.
It is true that in Beach v. Bryan, 155 Mo. App. 33, 133 S. W. 635, we suggested a doubt as to whether that action, to compel an alleged agreement to allow the plaintiffs there to adopt a child, would lie—this on the ground that courts of equity deal with property rights, not over wrongs to the person, or to the enforcement of social relations. . But we refrained from expressing an opinion on that in the Beach case—not as counsel for respondents here incorrectly say, because counsel had waived jurisdiction,- for that cannot be
In the case at bar, however, the question of jurisdiction has been suggested and briefed to some extent. So we have it before us.
On the authority of the several decisions of our Supreme Court and two of the Courts of Appeals, to which we have referred above, we hold this suit is maintainable.
Thus, Sharkey v. McDermott, supra, was a suit to establish the fact of adoption. So was Healey v. Simpson, supra. Nowack v. Berger, surpa, was of like character, and a case in which the Supreme Court, see pages 43 and 44, itself entered up a decree establishing adoption and awarding to the plaintiff there one-fourth part or interest in the estate, real and personal, left by the party claimed to be the adopting parent. Wales v. Holden, supra, was a suit in equity to enforce specific performance of an alleged adoption. Judge Valliant, who wrote the opinion, never questioned the jurisdiction of the circuit court over the subject-matter. The cases of Westerman v. Schmidt and Thomas v. Maloney, supra, were each suits in equity to enforce' contracts to adopt.
On the authority of these cases, we must hold that the suit was within the jurisdiction of the circuit court, and that it was within its jurisdiction to enter up the decree which it entered.
The judgment of the circuit court is in all things affirmed.