Sharkey v. McDermott

Ray, J.

This action was disposed of, upon a demurrer to the petition, which is of considerable length, and appears in full in the opinion of the St. Louis court of appeals, 16 Mo. App. 80 . The correctness of the ruling of the trial court in sustaining the demurrer, and entering judgment thereon in favor of the defendants which was afterwards, affirmed in the court of *652 appeals, is the only question now involved in the •case.

We are not able to concur in the view of the petition, and of plaintiff’s rights, as therein declared, adopted and entertained by said courts. In the first place, the statute of frauds, we apprehend, cuts no figure in the case, for the reason that it appears plaintiff has fully performed the contract on her part, and the «ame has also been performed in part by the other parties thereto, and to the extent of providing for and maintaining plaintiff during said years. Gupton v. Gupton, 47 Mo. 37 ; West v. Bundy, 78 Mo. 407 ; Anderson v. Shockley, 82 Mo. 250 .

Besides this, it is not stated in the petition that the alleged agreement was oral, but the same is declared on without stating whether it is in writing or not, and where this is so, the contract is presumed to be in writing. Browne Stat. of Fraud, sec. 505.

Again, the fact that the suit is instituted after the death of the parties.making the contract, is not important, in determining the demurrer, which admits the facts stated, and from which it appears that there was no breach of the contract upon which the plaintiff could maintain any action until the death of the said parties and each of them. The death of James McLaughlin, which occurred in 1876, did not give her a right of action for the property, as by the terms of the agreement it was to be left to her at their death, and not his ; so that, until the death of the survivor of them, no right of action thereon existed in her favor. So far as the original contract is concerned, it is, as has been pointed out, to be taken as the contract of said James McLaughlin alone, the said Catherine being then under the disability of coverture, and whilst the petition may indicate, in some of its allegations, that said Catherine and said plaintiff both supposed that plaintiff had been adopted, still it charges “that after the death of said *653 James plaintiff still continued, under the same conditions, to live in the household of said Catherine,” which means, we think, the mutual or reciprocal conditions of the original agreement, made between said James McLaughlin and the mother of plaintiff.

There are other allegations in the petition, material in this behalf, such as that the said James McLaughlin revoked the will in plaintiff’s favor, as to one-half the property, by said codicil, devising the whole to said Catherine, which she took under the will, and that this was done to avoid making plaintiff independent, and to secure the continuation of said services and relationship of plaintiff to said Catherine, after his death; that said Catherine thereafter continued to hold plaintiff out to the world as her adopted child, and to tell her she would inherit the property, and continued to receive and appropriate the wages of plaintiff of the alleged value of twenty-five hundred dollars, to her own use and benefit, whilst the plaintiff, on her part, continued, at the same-time, to be obedient, dutiful, and affectionate, and to do-the family sewing and household labor, and such other duties as are commonly done by the child for a parent. So that, although the original agreement may not have been binding upon her, by reason of her coverture at the time, yet the facts alleged show, we think, an agreement similar in substance and effect to the original, entered upon by her after becoming discovert, upon adequate consideration, which she has held and enjoyed.

But if this were not so, yet, under the facts, the wife’s right and title to the property, under the will of' her husband, would, in equity, be coupled with, if not subordinate to, the prior or paramount charge of plaintiff’s equities thereto, under said contract with the husband. So that, in any event, the result is the same. As to said original agreement, it clearly appears, from the petition, that in January, 1862, James and Catherine McLaughlin took plaintiff, then four years of age, from *654 her mother, then a widow, upon a promise made to Per, which was as alleged, “that they would provide and care well for her, and adopt her as their child, and leave her their property at their death.”

As between parents and their children, a natural relation of this sort exists independent of contract between them to that effect, and similar service on the part -of a child will not, it is true, give any right to a will in his favor, orto a transfer to him of his parent’s property, and it may be conceded that a direct agreement to that effect might, as between them, be non-enforceable for want of consideration. A formal deed of adoption places the child adopted, under the statute, on a .similar footing, in all respects, as to the person executing the deed, which the child has, by law, against lawful parents.

If the plaintiff had been duly adopted by the Mc-Uaughlins,' as was promised, we do not see, as is held by the court of appeals, that, under the facts disclosed, her position would be that of a disinherited daughter, first by the father, and afterwards by the mother. So far as the father is concerned, she would be thus disinherited, as his will was drawn in favor of the wife. But she would be the heir of her adopted mother, who, after taking the property under the will of her husband, died intestate, and, in that event, plaintiff would take, under the law, as provided in the statute of descents.

But the rights of plaintiff, if any, in this .case, do not spring either from the general law, applicable to parent and child, or from said statute authorizing the adoption of children, for the reason that plaintiff was not the daughter of these parties by nature ; nor had she been formally adopted by them by deed duly executed as the statute requires. Her rights in the premises, if any, depend, we think, entirely upon said agreement and the action had thereunder by the parties thereto. This agreement was not merely and solely one *655 to adopt the plaintiff, but was in part to leave the plaintiff the property at their death. The fact that the parties, and each of them, may have failed and neglected to execute it, so far as the adoption was concerned, should not, we think, exonerate them from its further obligation to transfer their property, when they could no longer use it, to plaintiff, but if the plaintiff is without the status of an adopted child, through no fault of her own, but through the neglect of those so promising, this is only additional ground for the enforcement of the contract as to the disposition of the property, if the necessary equitable facts and circumstances are properly alleged.

The question, then, is, whether this is a valid agreement executed upon sufficient consideration, and whether, being wholly performed by plaintiff, a party thereto, she is not entitled, upon the death of said James and Catherine McLaughlin, without performance thereof on their part, to a specified performance of the contract and to hold and enjoy the property so contracted for, at their death, as against these defendants, who are the brothers and sisters of the said Catherine, deceased. If such a contract may lawfully be made by the parties, then the parties defendant to this suit stand in the relation of heirs-at-law, if anything, to the estate of the decedent, whilst the plaintiff, having performed the services and yielded the obedience required of her by the contract, and having fulfilled the same, has the paramount claim of a creditor, or equitable owner of the property contracted to be given her in consideration of her said services.

We see no valid and sufficient reason why the case should not be controlled by the principle and rule laid down by this court in Wright v. Tinsley, 30 Mo. 389 ; Gupton v. Gupton, 47 Mo. 37 ; and Sutton v. Hayden, 62 Mo. 101 . In the first of said cases just cited, it is said that “on principle, there would seem to be no ground to *656 doubt that a person may, by valid agreement, renounce the power to dispose of his property at his pleasure; may bind himself to make a will,, in a particular way, on proper considerations, and that courts of equity would enforce such agreements under proper circumstances, the same as in other cases of valid contracts.” In the case at bar it was not specified in said agreement how the transfer of the property was to be made, but whilst this is true, it is, we think, immaterial, as was said in Sutton v. Hayden, 62 Mo. 101 , “the intention- to transfer the property is the chief thing, the method by which the intended result was to be attained was wholly immaterial. The contract entered into might well have been discharged by deed or will.”

In Gupton v. Gupton, supra, it is said : “ Contracts, like the one under consideration, have been before the courts, and have uniformly been held to be valid when partially performed and when the refusal to complete them would work a fraud upon the other party.”

The cases of Van Dyne v. Vreeland, 12 N. J. Ch. 1, and Davison v. Davison, 2 Beasley [N. J.] 246, are both very similar in their facts to the present case, and in these cases, verbal promises of the owners of the property were enforced upon the grounds that the services and support contracted for had been rendered. Under the view we have taken that plaintiff ’ s rights, if any, depend .upon the agreement entirely, the absence of a statute of adoption in New Jersey, which is commented on by the court of appeals, in no wise affects the authority' of these decisions. The obligations of the contract in question as of others are mutual, but the peculiar character of agreements of this sort, it is said, all the more entitles him who has faithfully performed the service and care to his stipulated reward. Gupton v. Gupton, supra. In this class of cases it is impossible to estimate, by any pecuniary standard, the value to the recipient of the services rendered, and such *657 services are not designed or intended to be so measured: The contract is originally so created that the consideration which the party receives cannot be returned, and after the performance of the services it is beyond the power of the party and of the courts to restore the plaintiff in such cases to the situation in which he was before the contract was made.. Browne Stat. Er., sec. 463.

The objection that, under the facts of this case, a decree for plaintiff would be in effect making a will for said Catherine, is not, we think, at all sound. This the court may not do, but it may, by its judgment under this state of facts, make effectual what the parties have themselves agreed upon, and that is the object and purpose of the petition.

Some of the allegations in the petition would indicate its principal object or purpose to be, to obtain a decree establishing plaintiff’s right of adoption, and declaring her heir-at-law of said Catherine McLaughlin, in virtue of said adoption. To that effect is the prayer for relief, but the prayer, also, is to declare her heir-at-law, by reason of the premises, and “for all other and further relief, as the facts in the case may warrant, and the court deem proper.” Under our practice, if sufficient facts are stated to entitle the party to relief, the conclusions of law the pleader may draw from them, and the particular relief he may ask, may, if necessary, be disregarded, and in such cases the court may grant any relief consistent with the case made by the plaintiff and embraced within the issues. R. S.,sec. 3683.

The case made by the petition is, we think, a meritorious and equitable one throughout. During a period of twenty years the plaintiff, who was a girl, lived with the said McLaughlins, was obedient, dutiful, and affectionate, paying these parties all the attentions due from a child to parents, and which, as was observed in Sutton v. Hayden, supra, “money, with all its peculiar po *658 tency,' is powerless to purchase,” and performed, in all that time, the labor of the household, and did the family sewing and gave them all her wages. Said James McLaughlin, after making a will in her favor, as to one-half of his property, revoked the same, as we have seen, by codicil, to avoid making her independent, and to secure a continuance of the relation with his wife after his death, which occurred in the year 1876. Some years thereafter said Catherine died, suddenly, in a spasm, intestate, and without providing for this plaintiff, or carrying out the said agreement, by which plaintiff was to acquire the property, at their death, and the whole property augmented, as alleged, in the sum of five thousand dollars by her own earnings, now goes, if her equitable claim on the property is not enforced, to defendants, who, it is alleged, were residents of St. Louis, visitors at the house of said Catherine, and were aware of the relations between plaintiff and said James and said Catherine McLaughlin, and of plaintiff’s expectations, and thus acknowledged and acquiesced therein.

For the reasons indicated, the petition contains, we think, a good cause of action, and we, therefore, reverse the judgment and remand the cause for further proceedings in conformity hereto, in which Sherwood, Black, and Brace, JJ., concur; Norton, C. J., absent.