Haworth v. Haworth

BLAND, P. J. (after stating the facts)— 1. It is contended by defendants that the deed of adoption as set up in the petition, and as found to have been executed by the chancellor, is void, for the reason that neither the plaintiff nor his parent or guardian, or any other person joined him in the execution of the deed. The statute (section 5246, R. S. 1899) does not require that a-deed of adoption shall be executed and acknowledged by " any person other than the one who desires to adopt the child named in the deed, and such a deed is valid though not consented to by the child, his natural parent, or guardian. [Reinders v. Koppelmann, 68 Mo. 482; In the Matter of Charles B. Clements, 78 Mo. 352; Clarkson v. Hatton, 143 Mo. 1. c. 53-4, 44 S. W. 761.] Nor is it essential to the validity of the deed, that J. M. Haworth’s [310] wife should have joined him in its execution; as to' her the deed is void but it is valid as to him. [Sarazin v. Union Ry. Co., 153 Mo. 179, 55 S. W. 92.] 2. Defendant strenuously insists that the evidence was insufficient to warrant the finding, judgment and decree of the circuit court, and cites numerous cases in support of the well-settled rule, that in proceedings of this character, the proof to establish the existence and contents of the lost deed must be so cogent, clear and forcible as to leave no doubt in the mind of the chancellor. Evidence of declarations of the deceased, made in his lifetime, that he intended to adopt plaintiff as his heir and that he had adopted him, and of the fact that plaintiff resided with the deceased, as a member of his family, from infancy until he attained his majority was not sufficient to establish the fact that J. M. Haworth did in fact execute and acknowledge a deed of adoption, but this evidence corroborates that of the two witnesses, who swore they had seen and examined the deed, that it was recorded and was in the usual form and recited a consideration of love and affection. The defendants offered no evidence, except on the character of some of plaintiff’s witnesses. The witnesses were present and testified in open court, therefore, the learned trial judge had the opportunity to see and observe their conduct and demeanor on the witness stand, and was in a position to form a correct estimate of the credit that should be given their evidence. To this estimate we should and will pay due deference. The learned trial judge evidently believed plaintiff’s witnesses spoke the truth; if they did, the evidence is clear, cogent and convincing that J. M. Haworth, in his lifetime, made, executed and acknowledged a deed, in due form, adopting plaintiff as his child and heir-, and that this deed was spread upon the records of deeds in Taney county, Missouri. 3. Defendants contend that for the reason the petition fails to allege in direct terms, that defendants were [311] claiming some property right in the estate of J. M. Ha-worth adverse to plaintiff, it is insufficient to confer jurisdiction on the trial court, is without merit. The object of the suit was not to establish any right in the estate of J. M. Haworth, which was then undergoing-administration, but to restore lost evidence which may be admissible in any controversy that might arise between plaintiff and defendants on the final distribution of the assets of the estate. We think the judgment is for the right party and it is affirmed. All concur.