Opinion
No. 39380.
November 5, 1945.
1. ADOPTION OF CHILDREN: Equitable Adoption: Proof Required. Even if there were sufficient evidence to establish prima facie the intent to adopt, it would not follow that plaintiff would be entitled to a decree.
2. ADOPTION OF CHILDREN: Equitable Adoption: Adult Claimant. Without deciding whether an adult claimant is ever entitled to an equitable adoption, the fact of majority is a circumstance contrary to the theory of equitable adoption.
3. ADOPTION OF CHILDREN: Equitable Adoption: Proof Insufficient. The evidence did not measure up to the required standard of clear, cogent and convincing proof that the decedent, a crippled woman, had intended to adopt as a daughter an adult woman who had been employed as a maid or companion.
Writ of Error to Circuit Court of City of St. Louis. — Hon. Robert L. Aronson, Judge.
AFFIRMED.
Cox Blair and Walter Wehrle for plaintiff in error.
(1) The evidence which showed that in a ceremony in the presence of witnesses Mrs. Kalb stated that she adopted plaintiff as her daughter and heir and plaintiff stated that she agreed thereto and would be Mrs. Kalb's adopted daughter, and treated her as a mother, which both of them believed was valid and effective as a legal adoption, and that plaintiff continued to live with Mrs. Kalb for thirteen years, until plaintiff's marriage, and that plaintiff performed all the duties of a daughter, entitled plaintiff to a decree establishing her adoption and giving her the rights of an adopted daughter. Kerr v. Smiley, 239 S.W. 501; McIntyre v. Hardesty, 347 Mo. 805, 149 S.W.2d 334; Ahern v. Matthews, 337 Mo. 362, 85 S.W.2d 377. (2) Plaintiff was adopted by Mrs. Kalb as her daughter. The adoption, although in parol, was in praesenti and completely executed. From that time forth the relationship of mother and adopted daughter existed and continued. The adopting parent and her privies are estopped to question such adoption and the person so relying thereon is entitled to a decree establishing such status: Holloway v. Jones, 246 S.W. 587; Horton v. Troll, 183 Mo. App. 677, 167 S.W. 1081; Thomas v. Maloney, 142 Mo. App. 193, 126 S.W. 522; See also; 16 A.L.R. 1016, note p. 1020, 69 A.L.R. 17. (3) Plaintiff's performance of the adoption agreement having been induced by the representations of Mrs. Kalb that the agreement was legal and valid, the situation presents a typical case for the intervention of equity to enforce the agreement. The evidence shows a mutual mistake concerning the legal sufficiency of the adoption agreement which plaintiff was induced to rely on by the representations of Mrs. Kalb in whom plaintiff placed trust and confidence, which facts present a clear case for equitable relief, even though the misrepresentation made by Mrs. Kalb was innocently done. Annotations, 142 A.L.R. 122, and 27 A.L.R. 1365, and cases cited; 30 C.J.S. 380, sec. 47. (4) The Missouri courts recognize the jurisdiction of equity to give relief where the mistake of law is mutual and induced by or taken advantage of by one of the parties. Bramhall v. Bramhall, 216 S.W. 766; Cooper County Bank v. Rank, 288 S.W. 95; Shanklin v. Ward, 291 Mo. 1; Griffith v. Townley, 69 Mo. 13. (5) The fact that plaintiff had reached the age of majority at the time of the oral adoption ceremony does not defeat her right to a decree establishing her adoption rights. Kerr v. Smiley, supra; State ex rel. Buerk v. Calhoun, 330 Mo. 1172, 52 S.W.2d 742, 83 A.L.R. 1393, note p. 1395; St. Louis Union Trust Co. v. Hill, 336 Mo. 17, 76 S.W.2d 685; Brock v. Dorman, 339 Mo. 611, 98 S.W.2d 672; Wilson v. Caulfield, 228 Mo. App. 1206; In re Moran's Estate, 151 Mo. 555, 52 S.W. 377; 2 Mo. Law Review 300. (6) The facts that plaintiff retained and used her own name, and not the name Kalb, and that she later married and left the Kalb home, do not deprive her of the adoption rights claimed. Plaintiff's rights under the adoption agreement, after plaintiff had performed her part thereof, were not forfeited by a quarrel, disagreement or estrangement between plaintiff and Mrs. Kalb (if there was such quarrel, disagreement or estrangement). Craddock v. Jackson, 223 S.W. 925; Remmers v. Remmers, 239 S.W. 509.
Daniel Bartlett and Thomas F. Muldoon for defendants in error.
(1) The character and quantum of proof required to support oral adoption is that it must be clear, cogent and convincing, free from doubt and so overwhelming in its probative force as to banish all reasonable doubt to the contrary; and then only when to do otherwise would work a palpable fraud on the other party. Benjamin v. Cronan, 338 Mo. 117, 93 S.W.2d 975; Furman v. St. Louis Union Trust Co., 338 Mo. 884, 92 S.W.2d 726; Kidd v. St. Louis Union Trust Co., 335 Mo. 1029, 74 S.W.2d 827; Nichaus v. Madden, 348 Mo. 770, 155 S.W.2d 141; Lamb v. Feehan, 276 S.W. 71; Barnett v. Clark, 252 S.W. 625; Shelp v. Mercantile Trust Co., 322 Mo. 682, 15 S.W.2d 818; Wales v. Holden, 209 Mo. 552, 108 S.W. 89. (2) Evidence of the mode and circumstances of the lives of plaintiff and decedent, their conduct and attitude toward each other, was relevant and indicated that there was no oral adoption or contract to adopt. Furman v. St. Louis Union Trust Co., supra; Kidd v. St. Louis Union Trust Co., supra; Wales v. Holden, supra. (3) The fact that Mrs. Kalb never told any of her friends, relatives, or employees, especially her minister, her counsel, and her doctor, of any adoption, is strongly persuasive that no such adoption took place or was ever promised. Kidd v. St. Louis Union Trust Co., 335 Mo. 1029, 74 S.W.2d 827; Keller v. Lewis County, 345 Mo. 536, 134 S.W.2d 48. (4) The "secrecy" enjoined by Mrs. Kalb, testified to by plaintiff's witnesses, destroys the probative force of their testimony about the declaration of a woman dead when the suit was brought, Shelp v. Mercantile Trust Co., 322 Mo. 682, 15 S.W.2d 818; Furman v. St. Louis Union Trust Co., 338 Mo. 884, 92 S.W.2d 726. (5) Clara Kropp's failure to change her name to that of Kalb was a strongly persuasive circumstance against her (and not one in her favor), especially in view of the fact that no reasonable explanation therefor was given. Jenkins v. Gordon, 256 S.W. 136; Ahern v. Matthews, 337 Mo. 362. 85 S.W.2d 377; Drake v. Drake, 328 Mo. 966, 43 S.W.2d 556. (6) Testimony as to purported declarations of a dead person is generally considered unreliable evidence. Kidd v. St. Louis Union Trust Co., 335 Mo. 1029, 74 S.W.2d 827; Asbury v. Hicklin, 181 Mo. 658, 81 S.W. 390. (7) The services rendered by plaintiff to Mrs. Kalb cannot be attributed to any adoption or agreement to adopt. (8) Adoption being unknown at common law is purely statutory in Missouri. The statutes provide the only legal means of attaining the status of an adopted child. Chap. 56, Art. I.R.S. 1939; Secs. 9608-9615, R.S. 1939; Rockford v. Bailey, 322 Mo. 1155, 17 S.W.2d 941; In re McAvoy's Adoption, 173 S.W.2d 108; Drake v. Drake, 328 Mo. 966, 43 S.W.2d 556. (9) An indispensable circumstance necessary to entitle a court of equity to exercise its extraordinary prerogative to decree equitable adoption is that the child in question must have been taken at such an age that it had no will or choice of its own in the matter. Therefore being a conceded basic fact in this case that plaintiff was an adult (past her twenty-second birthday) before she met and went to work for Mrs. Kalb and, of course, before the alleged oral adoption or agreement to adopt, in 1921, no case could be made for an equitable adoption or specific performance of an agreement to adopt, even if the allegations of the petition were proven. Thompson v. Moseley, 344 Mo. 240, 125 S.W.2d 860; Chap. 56, Art. I, R.S. 1939; Secs. 9608-9615, R.S. 1939; Rockford v. Bailey, 322 Mo. 1155, 17 S.W.2d 941. (10) There is no such thing in this State as a doctrine of "parol adoption completely executed in praesenti," performed merely by the speaking of the words "I adopt," and such a theory as is advanced by plaintiff's counsel on this point cannot avoid the consequences of her adult status in 1921. Hockaday v. Lynn, 200 Mo. 456, 98 S.W. 585; Melek v. Curators of Mo. U., 213 Mo. App. 572, 250 S.W. 614; Lamb v. Feehan, 276 S.W. 71; Clarkson v. Hatton, 143 Mo. 47, 44 S.W. 761; Drake v. Drake, 328 Mo. 966, 43 S.W.2d 556; Kerr v. Smiley, 239 S.W. 501; McIntyre v. Hardesty, 347 Mo. 805, 149 S.W. 334; Ahern v. Matthews, 337 Mo. 362, 85 S.W.2d 377; Holloway v. Jones, 246 S.W. 587; Horton v. Troll, 183 Mo. App. 677, 167 S.W. 108; Thomas v. Malone, 142 Mo. App. 193, 126 S.W. 522. (11) Where, in this State, a court has intervened to decree equitable adoption in a case where a method pursued fell short of substantial compliance with the statute, it has never been on the ground of mutual mistake of law, but because by the overwhelming weight of the credible evidence, it appeared to the court beyond all reasonable doubt that the child had been taken at a tender age when it had no will or choice of its own in the matter, that thereafter it had been treated and regarded as a son or daughter, and that it had performed everything contemplated by the relation of parent and child and in reliance thereon, so that it would be a palpable fraud on the child to permit the adoptive parent or her heirs to deny such adoption. See authorities cited under Points (1) and (2) of this brief; Barnett v. Clark, 252 S.W. 625; Dillman v. Davidson, 239 S.W. 505; Beach v. Bryan, 155 Mo. App. 33, 133 S.W. 635.
By this suit in equity Clara Kropp Gamache seeks to establish that she is the adopted [1000] daughter of Laura J. Kalb, deceased. Mrs. Kalb left a will which does not mention Clara Kropp Gamache and if Clara is successful in this action she is Mrs. Kalb's sole and pretermitted heir and entitled to approximately $800,000.00.
The theory of her suit is that Mrs. Kalb, in the presence of witnesses on Christmas Eve 1921, orally adopted her and promised that she would be her (Mrs. Kalb's) heir, that she assented and agreed to the adoption and that they mutually promised thenceforward to treat one another as mother and daughter. Ahern v. Matthews, 337 Mo. 362, 85 S.W.2d 377. She claims that for the next thirteen years and thereafter she faithfully performed all the duties of a daughter, fully complied with the oral adoption and all its implications and, therefore, to prevent an injustice to her, a court of equity should exercise its power and decree her status as an adopted child. — Mrs. Kalb having died without recognizing the obligations imposed by the adopted relationship, 2 Mo. L.R. 300, 303; annotations 27 A.L.R. 1325; 142 A.L.R. 84.
The Kalb household consisted of Mr. and Mrs. Charles R. Kalb and Mrs. Kalb's sister, Mrs. Johnston, known as Miss Mattie. They were all wealthy people. A yardman, who also acted as Mrs. Johnson's chauffeur, lived with his family over the garage. The Kalbs always employed a chauffeur (for many years it was Richard Gasta), a colored cook and two colored maids. Most of these people remained in their employ for many years. Mrs. Kalb was a large woman, six feet tall and normally weighed about two hundred pounds. Most of the time, from 1921 until her death in 1941, she was an invalid and spent her time in her bedroom and sitting room on the second floor of their home. She was badly crippled with arthritis, particularly in her hands and arms and required almost constant personal attention.
According to the evidence offered in support of Clara's claim she "went to work" for the Kalbs in June 1921, after responding to a newspaper advertisement, as a "companion" to Mrs. Kalb. Her salary was $40.00 a month, later raised to $45.00 and then $65.00, — after her adoption there was no regular salary. By December 1921 Mrs. Kalb and Clara had become so attached to one another that Mrs. Kalb was considering adopting Clara. Consequently, she consulted a lawyer and was advised that she could legally adopt Clara, without a judicial proceeding, if there were witnesses. So, on Christmas Eve 1921 (as a Christmas present) in the presence of Mr. Kalb, Mrs. Johnston and Fred Gamache, Clara's husband after 1933. Mrs. Kalb said: "Well, now here is Mr. Kalb, Mattie and Freddie and . . . I now adopt Clara as my daughter and only heir. And she said, `I don't want my sister, Mrs. Doering, to know about this, because she is troublesome.' So then they each hugged one another, and they both started crying, Mrs. Kalb and Clara." Or, another version of the occurrence was that Mrs. Kalb, after expressing her desire for a daughter, her great love for Clara and stating that she had consulted a lawyer, said: "So, with my husband's approval, and in the presence of sister Mattie, my husband and Freddie, I am now adopting Clara as my daughter and heir.' And she then said . . . `Do you agree, Clara?'" And Clara said, "I certainly do, Mother Kalb, I will do everything I can to be a worthy daughter to you.'" Then they embraced and cried and Mrs. Kalb warned them to not let her sister, Mrs. Doering, know about it because she would cause trouble.
In corroboration of the adoption Clara's brother, William F. Kropp, a policeman in Webster Groves, and his wife testified that they stopped by the Kalb home in the summer of 1922 and Mr. and Mrs. Kalb and Clara were sitting on the porch. "After a few minutes, Mrs. Kalb started telling us about the adoption of my sister. She says, `I suppose you know that we have adopted your sister for my daughter?' And I said `Yes.' And she said, `Well, ever since that time, I am the happiest woman in the world.'" Her sister-in-law, Frances Sharpe Gamache, said that when she was visiting Clara, after they became acquainted in 1933, Mrs. Kalb told her she had adopted Clara in 1921, around Christmas. She said she hoped she would be as good a mother to Clara as Clara was a daughter to her.
Assuming, for the purposes of this opinion, that the evidence adduced in support of Clara's claim is sufficient, prima facie, to establish the fact of her adoption by Mrs. Kalb — within the theory of her case — it does not follow, as she now argues, that she was entitled to a decree. The case is certainly not comparable to Kerr v. Smiley (Mo.), 239 S.W. 501, in which there had been an attempt to comply with the then [1001] existing law and adopt a child by deed, the only defect being that the deed was recorded in the wrong county. Neither is the case comparable to McIntyre v. Hardesty, 347 Mo. 805, 149 S.W.2d 334, in which there was a deed of adoption, signed and acknowledged, but not recorded as the statutes then required. Neither is the case similar to Ahern v. Matthews, supra, in which there was a written contract and a lost deed of adoption. In each of these cases the solemn, formal, written instruments clearly show that the deceased once had the purpose and intent to adopt the named child. In this case there is no such instrument and while that fact is not determinative there are other circumstances which weigh overwhelmingly against this claim.
Clara was born January 22, 1899, consequently, when she went to work for Mrs. Kalb in June and claims to have been adopted in December 1921, she was then twenty-two years of age. One may, by complying with the statutory adoption law, adopt an adult. State ex rel. Buerk v. Calhoun, 330 Mo. 1172, 52 S.W.2d 742; St. Louis Union Trust Co. v. Hill, 336 Mo. 17, 76 S.W.2d 685. In this case we need not say whether there may be a valid oral equitable adoption of an adult, although our interpretation of Thompson v. Moseley, 344 Mo. 240, 125 S.W.2d 860, is that it plainly holds that there may not be. In any event, the fact of Clara's majority is a circumstance contrary to the theory of equitable adoption, — the protection of a child who had no choice or will with respect to the establishment of so vital a relationship, and the circumstance weighs heavily against her claim, if it is not destructive of it. Thompson v. Moseley, supra.
Clara says that she was employed as Mrs. Kalb's "companion." Some of the witnesses called her a "maid," Mrs. Kalb's "personal maid" or "personal attendant." But whatever she was known as, there is no dispute as to what she in fact did. When she went to work for Mrs. Kalb and for more than twelve years after she claims to have been adopted she was in constant personal attendance upon her. She washed Mrs. Kalb's hair, helped her bathe, assisted in dressing and undressing her, put her to bed, brought her meals, washed and pressed her clothes, answered the door, took the dog for a walk and was always responsive to Mrs. Kalb's bell for attention. The preponderance of the evidence is that Clara usually wore a white uniform. Her attendance upon Mrs. Kalb's personal needs is not necessarily inconsistent with adoption and the relationship of mother and daughter. But it was not necessary for Mrs. Kalb's daughter to be so engaged for twelve years and it is not likely that she would have been so exacting of a daughter.
In 1934 Clara left the Kalb household and, according to her husband, never returned again. She denies that she and Mrs. Kalb engaged in a violent quarrel or that Mr. or Mrs. Kalb discharged her and so, according to her, there was no serious, permanent breach in their amiable relationship. She says she left to live with her husband, Fred Gamache, whom she secretly married at Waterloo, Illinois, in 1933. Her excuse for not attending Mrs. Johnston's funeral in 1935 or Mr. Kalb's funeral in 1936 was that Mrs. Doering excluded her. But Mrs. Kalb did not die until 1941 and even though their relationship was to be a secret from Mrs. Doering there was not sufficient reason or explanation for her not calling on her adopted mother, especially in view of the avowed attachment. On two occasions after she left the Kalb home, in 1935 and from February to June 1937, she was employed as an attendant by the Carrie Elligson Geitner Home for aged invalids under the name of Clara Kropp and at a salary of $30.00 a month with room and board.
In February 1934, before Mr. Kalb died and before Clara left, Mrs. Kalb executed a will in which her husband was the residuary beneficiary. There were specific bequests to employees, the first item of the will being, "I give and bequeath to my loyal attendant, Clara M. Kropp, if in my employ at my death, five thousand dollars ($5,000.00), otherwise this legacy shall lapse." In a subsequent will, executed in 1935 after Clara left, Clara is not mentioned. After Mr. Kalb's death, and in 1936, she executed the will which was finally admitted to probate (in which Mrs. Doering is the residuary beneficiary) and Clara is not mentioned in that will. If, as Clara says, they had not become estranged, there was no reason for Mrs. Kalb's disinheriting her. Clara says they exchanged gifts and that she often visited Mrs. Kalb after 1936 and so she could not have forgotten [1002] her. These facts, while not conclusive, are circumstances against her claim of adoption. Kidd v. St. Louis Union Trust Co., 335 Mo. 1029, 1045, 74 S.W.2d 827, 834.
We have tried the case anew (Johnson v. Antry (Mo.), 5 S.W.2d 405) and in so doing it will be observed that we have excluded consideration of any evidence which the appellant claims inadmissible (Holliday v. Clark (Mo.), 110 S.W.2d 1110) and have considered all the evidence which she claims was improperly excluded by the trial court (Webb v. Salisbury, 327 Mo. 1123, 39 S.W.2d 1045), even though much of it is clearly inadmissible.
Aside from these indisputable facts many other circumstances could be weighed and considered but they involve the credibility of the witnesses or the comparative weight of the evidence. There is the circumstance that the only living people who had any knowledge of the adoption were Clara, her husband, her brother, her sister-in-law and her husband's sister-in-law. The only other persons who were ever supposed to have had any knowledge of the adoption, Mr. and Mrs. Kalb and Mrs. Johnston, were dead. On the other hand, the respondents' evidence shows that Mrs. Kalb never mentioned to any relative, friend, employee or business associate so important a fact as having adopted a daughter. Kidd v. St. Louis Union Trust Co., supra. There is the coincidence, which may have impressed the trial court, that while Mrs. Kalb enjoined the utmost secrecy concerning Clara's adoption, yet the first and only time she ever spoke to Clara's brother, his wife or her husband's sister-in-law, (all casual visitors) she informs them of the fact. Hunter v. Lafferty (Mo.), 162 S.W.2d 842, 845. There is the question of whether Mrs. Kalb ever held Clara out as an adopted daughter, a circumstance particularly emphasized in many of the cases upon which she relies. Drake v. Drake, 328 Mo. 966, 43 S.W.2d 556; Holloway v. Jones (Mo.), 246 S.W. 587; Kerr v. Smiley, supra. While not conclusive, there is the circumstance that Clara never took or used the name of her adopted mother. Craddock v. Jackson (Mo.), 223 S.W. 924; Jenkins v. Gordon (Mo. App.), 256 S.W. 136.
Considering only the circumstances we have emphasized, the evidence in this case does not measure up to the required standard of such clear, cogent and convincing proof that this court may say "with the utmost confidence" (Barnett v. Clark (Mo.), 252 S.W. 625, 628) that Mrs. Kalb adopted Clara. Benjamin v. Cronan, 338 Mo. 1177, 93 S.W.2d 975; Furman v. St. Louis Union Trust Co., 338 Mo. 884, 92 S.W.2d 726; Lamb v. Feehan (Mo.), 276 S.W. 71, 80. We agree with the trial court's finding, to which we give deference, that Clara Kropp Gamache is not the adopted daughter of Laura J. Kalb. Nichaus v. Madden, 348 Mo. 770, 778, 155 S.W.2d 141, 145.
The trial court's judgment in favor of the respondents and against the appellant is, therefore, affirmed. Westhues and Bohling, CC., concur.
The foregoing opinion by BARRETT, C., is adopted as the opinion of the court. All the judges concur.