APPEAL from the Circuit Court of White County; the Hon.
CASWELL J. CREBS, Judge, presiding.
MR. JUSTICE HERSHEY DELIVERED THE OPINION OF THE COURT:
Carl Weiss, plaintiff below, instituted this action in chancery in the circuit court of White County against defendants, the heirs-at-law of Minnie Stocke Stokes, to decree a virtual adoption of plaintiff by Minnie Stocke Stokes and Phillip Stocke, her first husband, pursuant to an alleged parol agreement, and to quiet title of plaintiff to certain real estate located in White County. The title to real estate is so put in issue by this action that upon a determination of the cause either the plaintiff or the defendants will necessarily lose a freehold. (Winkelmann v. Winkelmann, 345 Ill. 566.) Hence, the appeal comes directly to this court.
George and Margaret Appel, husband and wife, resided on a farm in White County, around the turn of the century. They were the parents of two children, Phillip and Sophia, both of whom married and had children of their own. Sophia married one William Weiss, and to this union were born four sons, Joe, Adolph, Fred and Carl. Sophia Appel Weiss died in 1896 leaving her husband and four sons surviving. The youngest son, Carl, plaintiff here, was then two years of age. The four children were taken into the home of their maternal grandparents, George and Margaret Appel. Subsequently Phillip Appel and his wife took Fred Weiss as their foster son, but did not adopt him. Jacob Renschler, a neighbor, took Adolph Weiss to be his foster son, but no adoption was had. Joe Weiss, the eldest, remained with his grandparents until he was able to shift for himself. Joe was never adopted.
Carl Weiss remained with his grandparents until he was about six years old, at which time he was taken into the home of Phillip and Minnie Stocke. He continued to reside with them until after he was 21 years of age, and until he married. He lived in the Stocke home as a member of the family and worked diligently on the family farm, receiving no wages for his labors. After his marriage, Carl and his wife lived with the Stockes for a short time. Phillip Stocke then purchased an adjoining farm, and Carl and his wife moved to that farm and have continued to reside there since that time. Plaintiff never ceased to work with Phillip Stocke in the operation and maintenance of both farms until Stocke's death in 1925.
By the provisions of his will, Phillip Stocke devised to Carl Weiss, by that name, forty acres of land. That forty acres was the land upon which stood the house where Carl and his family lived. Phillip Stocke also bequeathed two thousand dollars to Carl Weiss. The balance of his estate was given by Phillip Stocke to his widow, Minnie.
In 1928 Minnie Stocke married one James M. Stokes and moved to his home near Crossville, Illinois. In 1929 Minnie Stocke Stokes and her husband joined in a conveyance of a forty-acre tract to Carl Weiss adjoining that property devised to him by Phillip Stocke. Mrs. Stokes retained a life estate in this forty-acre tract.
Her second husband having passed away in 1937, Minnie Stocke Stokes returned to the former Stocke farm where she lived almost continuously until her death on May 17, 1951. She did spend a few months with her brother, Herman Gates, in his home at Mill Shoales, Illinois. Mrs. Stokes died intestate. Her estate is pending in the county court of White County. Herman Gates, one of the defendants, and Phillip Weiss, son of the plaintiff, are co-administrators thereof.
Plaintiff instituted this action by a complaint which, upon a motion that it be made more certain, was amended and alleged the following: That when plaintiff was six years old Phillip Stocke and Minnie Stocke, his wife, entered into a verbal agreement and arrangement with plaintiff's maternal grandparents, George and Margaret Appel, that they, the Stockes, would adopt and rear plaintiff; that pursuant to said agreement plaintiff was taken into the Stocke home where he lived and worked as part of the family until after he was of legal age, having thus performed the agreement entered into by the Stockes in all respects as a dutiful, obedient, and devoted child; that he continued to assist in the operation and management of the Stocke farms until the death of Phillip Stocke, and thereafter to assist, care for, support and maintain Minnie Stocke Stokes until her death, except during the time she was married to and living with James M. Stokes.
Plaintiff further asserted that he was treated always as a member of the family and became commonly known as "Carl Stocke" in the neighborhood; that no wages were paid to plaintiff by the Stockes at any time; that Phillip and Minnie Stocke referred to plaintiff's children as their grandchildren; that Minne Stocke Stokes was bedfast for more than a year prior to her death, and that during such time plaintiff and his wife attended her practically constantly. Plaintiff alleged that by their conduct Phillip and Minnie Stocke confirmed and established their agreement to adopt plaintiff and to rear him as their own son and child. Plaintiff then prays for specific performance of the agreement for adoption as alleged, and that he, as the only child of Minnie Stocke Stokes, be declared the owner in fee simple of all real estate.
The defendants, heirs of Minnie Stocke Stokes, filed a counterclaim praying a decree quieting title in them, and asking partition among themselves.
Trial was had before the circuit court of White County and witnesses were presented by both sides. The decree of the court found that the equity of the cause was against the plaintiff and in favor of defendants in the original complaint, against the plaintiff on the counterclaim of the defendants and in favor of the counterclaiming defendants. It was further found by the court that the evidence did not sustain the allegations that a contract for adoption existed, and hence plaintiff had no interest in the real estate in question. The trial court therefore decreed a dismissal of the original complaint for want of equity and at plaintiff's costs.
Numerous witnesses were presented before the trial court by both parties to this action. Plaintiff presented Charles Stocke, brother of Phillip Stocke, who testified that he saw Carl Weiss's natural father bring the plaintiff to Phillip Stocke's home, that the Stockes referred to Carl as "the boy" and raised him as their own, and that Phillip Stocke told his brothers and sisters that he and his wife did not intend for their relatives to get what they had, but they intended for the boy they were raising to get all they had. Charles Stocke heard them mention adoption several times and was of the impression that Carl had been adopted.
Oscar Stocke, a nephew of Phillip Stocke, only knew plaintiff as a member of the Stocke household, whom he thought was adopted, since Phillip Stocke and Carl Weiss were like father and son. He heard Minnie Stocke Stokes refer to Carl Weiss's family as "the children" and "grandchildren." Carl called them Uncle Phillip and Aunt Minnie, and the youngsters referred to the Stockes as "grandma" and "grandpa."
Dayton Hendershot was told by Phillip Stocke that Carl was not adopted, and that he gave Carl a horse, bridle, a saddle ...