Sharkey v. McDermott
| Decision Date | 21 March 1887 |
| Parties | Sharkey, Appellant, v. McDermott et al |
| Court | Missouri Supreme Court |
Appeal from St. Louis Court of Appeals.
The petition in the case avers, in substance, that the plaintiff was given by her mother, a widow, to Catherine McLaughlin the wife of James McLaughlin; that this occurred in January 1862, at which time plaintiff was an infant of four years that the arrangement between the adults, as to the care of the child, was, that she was to be legally adopted by them and inherit their property; that she continued to reside in the household of James and Catherine until 1876, at which time James died; that, during the time she was in the household, she was told by both of them that she was their legally-adopted child, and would inherit their property; that, so soon as she was large enough to work, she was put out at service, and all her wages collected and appropriated by James and Catherine, both of whom were childless; that, after the death of James, and the publication of his will, it was ascertained that he had willed to the plaintiff one-half of his whole estate, but afterwards, by codicil, revoked the bequest, and left the entire estate to Catherine; that she was told by Catherine, and the fact is averred in the petition, that the codicil was written because James feared that, becoming independent, plaintiff might refuse to longer recognize the relationship of adopted child, and refuse to live with Catherine; that, after the death of James, she continued, under the same conditions, to live in the household of Catherine; that she was, by Catherine, held out to the world as her adopted child; was, by said Catherine, repeatedly told that she was her legally-adopted child, and would inherit, by reason thereof, all of her property. It is further averred that the defendants were all of age, were frequent visitors at the house, fully aware of the relationship and circumstances surrounding them, and the expectations of the plaintiff, and acquiesced in and acknowledged the same; that, after the death of James, she remained in the household of Catherine, Catherine receiving and appropriating all of her wages; she did all of the sewing and other household labor of Catherine; continued to live with and serve Catherine, discharging for her all of the duties commonly discharged by a child for its parent; that she yielded the same obedience and the same affection as would have come from a child to its parents, at all times, supposing that she had been legally adopted and was their heir; that Catherine died suddenly, leaving no will, and plaintiff learned, for the first time, that she had not been adopted; that she was of too tender an age to require a deed when the arrangement was first made, and, after growing older, trusted entirely to the statements of James and Catherine; that she has contributed the earnings of the best years of her life, and a long service, under the conviction that she had been adopted, and that she would receive the property at the death of James and Catherine, and defendants are now seeking to deprive her of her rights. Plaintiff asks to have her right of adoption established, and to be declared an heir-at-law of said Catherine, and for all further and other relief as the facts in the case may warrant and the court may deem proper.
Reversed and remanded.
M. F. Taylor for appellant.
(1) Where one, by reason of confidence in the representations and statements of another, has expended money and services, the court will decree a specific performance of a contract to inherit. Van Dyre v. Vreeland, 11 N.J.Eq. 370; S. C., 12 N.J.Eq. 142. (2) An agreement to dispose of property by will, in a particular way, if made on sufficient consideration, is valid and binding, although the circumstances may render it impossible to specifically enforce such agreement exactly, yet substantial specific performance will be decreed. Wright v. Tinsley, 30 Mo. 389; Gupton v. Gupton, 47 Mo. 37; Hamilton v. Hamilton, 59 Mo. 232; Sutton v. Hayden, 62 Mo. 101; West v. Bundy, 78 Mo. 407; Anderson v. Shockley, 82 Mo. 250.
Broadhead & Haeussler for respondents.
(1) Plaintiff's motion for a new trial was not filed within four days after judgment, as required by statute. (2) In this state, the mode of adoption is prescribed by statute, viz: by deed duly executed, acknowledged, and recorded. Revised Statutes of Mo., 1879, sections 599-601. (3) Courts of equity cannot dispense with the regulations prescribed by statute; otherwise, equity would, in effect, defeat the legislative enactment. Story's Eq., secs. 96, 170; Long v. Hewitt, 44 Iowa 363; Houck v. Bates County, 61 Mo. 391; 56 Iowa 578; Tyler v. Reynolds, 53 Iowa 146; Schouler's Domestic Relations, sec. 232. (4) The alleged promise, if made, was the agreement of James McLaughlin solely. Catherine, a married woman, was incapacitated in law to contract in the respect alleged, and any promise by her, as alleged, being void, no ratification could be made when discovert. Kernan v. Martin, 8 Mo. 698; Musick v. Dodson, 76 Mo. 627. (5) Any right of action plaintiff might have had at the death of James McLaughlin, in 1876, is barred by laches and the statute; when the facts disclose laches, the court will refuse relief. Kelley v. Hurt, 74 Mo. 561; Godden v. Kemnen, 99 U.S. 211; Sullivan v. Railroad, 94 U.S. 807. (6) The only remedy plaintiff might be entitled to, under the allegations of her bill, is an action for her services and earnings given up by her, if any, and in that action the administrator would be the only proper party defendant. (7) Even if the circumstances alleged constituted a valid adoption of plaintiff by James McLaughlin, she stood in no better position than a lawfully-begotten child. (8) Any agreement to make a will is not superior to a will which may be revoked by a subsequent will.
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 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 same 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 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...
To continue reading
Request your trial