Crawford v. Arends

• Decision Date: 06 November 1943
• Docket Number: 37998
• Citation: 176 S.W.2d 1,351 Mo. 1100
• Parties: Louise Weber Crawford v. Henry Arends, Mildred Arends Hedrick, H. Barth Arends, Alma Smith, Marie Smith Lawrence, and Irene Smith LeMarr, Appellants
• Court: Missouri Supreme Court

176 S.W.2d 1

351 Mo. 1100

Louise Weber Crawford v. Henry Arends, Mildred Arends Hedrick, H. Barth Arends, Alma Smith, Marie Smith Lawrence, and Irene Smith LeMarr, Appellants

No. 37998

Supreme Court of Missouri

November 6, 1943

Opinion on Motion to Modify Filed November 6, 1943.

Appeal from Jackson Circuit Court; Hon. A. A. Ridge, Judge.

Reversed and remanded.

Paul H. Jenree and McVey & Clagett for appellants.

(1) Appellee's rights must be determined according to Chapter 20, Article 1, R. S. 1909, and particularly Section 1673, R S. 1909: St. Louis Union Trust Co. v. Hill, 336 Mo 17, 76 S.W.2d 685; 1917 Laws, p. 194, sec. 9614; McIntyre v. Hardesty, 149 S.W.2d 334; Ch. 20, Art. 1, R. S. 1909; Secs. 1675, 1671, 1673, R. S. 1909. (2) Appellee is not a lineal descendant of Frank J. Weber, deceased, within the meaning of Section 528, R. S. 1939: Hockaday v. Lynn, 200 Mo. 456, 98 S.W. 585; Reinders v. Koppelmann, 68 Mo. 482; Reinders v. Koppelmann, 94 Mo. 338, 7 S.W. 288; McIntyre v. Hardesty, supra; Clarkson v. Hatton, 143 Mo. 47, 44 S.W. 761; St. Louis Union Trust Co. v. Hill, 336 Mo. 17, 76 S.W.2d 685; Leeper v. Leeper, 147 S.W.2d 660; Wyeth v. Merchants, 34 F.Supp. 785; Rauch v. Metz, 212 S.W. 357; Sec. 528, R. S. 1939; Melek v. Curators of U. of Mo., 213 Mo.App. 572, 250 S.W. 614; Bramell v. Adams, 146 Mo. 70, 47 S.W. 931; McMenamy v. Kampelmann, 273 Mo. 450, 200 S.W. 1075.

James G. Kimbrell and John C. Grover for respondent.

(1) In a suit to quiet title, it is the duty of the trial court to enter a judgment in behalf of the party to the action showing the best title. Sec. 1684, R. S. 1939; Barnett v. Hastain, 256 S.W. 750; Barr v. Stone, 242 S.W. 661. (2) In view of the general finding by the trial court against appellants and in favor of respondent, this Court must sustain the judgment of the trial court if it can be done upon any reasonable theory of the law and facts. Murphy v. Doniphan Tel. Co., 147 S.W.2d 616; Stoepler v. Silberberg, 119 S.W. 418. (3) Appellants pled that respondent was adopted under Chapter 20, Article 1, Section 1675, R. S. 1909, and that her rights are determined thereby, and respondent admits this contention of appellants. Respondent does not claim to have been adopted under the 1917 Law. Weber v. Griffiths, 159 S.W.2d 670; Shepherd v. Murphy, 61 S.W.2d 746; Citations under Point (1) of appellants' brief. (4) Appellants pled respondent's adoption under a specific deed from a legally incorporated institution in this state for the care and custody of minor children, as provided only in Section 1675, supra, and are now estopped to take a position inconsistent with such judicial admission. State ex rel. v. Webster Groves, etc., 37 S.W.2d 905; Fleming v. McMahon Contracting Corp., 45 S.W.2d 952. (5) Respondent is a lineal descendant of Frank J. Weber within the meaning of Section 528, R. S. Mo. 1939. Under Section 1675, R. S. 1909, under which respondent was adopted. Sec. 1675, R. S. 1909; Sec. 9614, R. S. 1939; St. Louis Union Trust Co. v. Hill, 76 S.W.2d 685; McIntire v. Hardesty, 149 S.W.2d 334; Shepherd v. Murphy, 61 S.W.2d 746; Weber v. Griffiths, 159 S.W.2d 670. (6) Even had respondent been adopted under Section 1671, R. S. 1909, Rauch v. Metz, 212 S.W. 357; Hockaday v. Lynn, 98 S.W. 585; Melek v. Curators U. of Mo., 250 S.W. 614; In re Roebucks Estate, 140 N.Y.S. 1107; Levy v. McCartee, 31 U.S. 102; Shepherd v. Murphy, 61 S.W.2d 746; In re Cupples' Estate, 199 S.W. 556; St. Louis Union Trust Co. v. Hill, 76 S.W.2d 685; Bernero v. Goodwin, 184 S.W. 74; 1 C. J. 1399; Brock v. Dorman, 98 S.W.2d 672; 5 Missouri Law Review, No. 2, l. c. 261; Heald v. Aetna Ins. Co., 104 S.W.2d 379; Viquesney v. Kansas City, 266 S.W. 700; Niehaus v. Madden, 155 S.W.2d 141; Emerson v. Peters, 110 Kan. 87, 202 P. 601; Denton v. Miller, 110 Kan. 292, 202 P. 693. (7) A will speaks from the date of the death of the testator. Humphreys v. Welling, 111 S.W.2d 123; Hannibal Trust Co. v. Elzea, 286 S.W. 371. (8) The real property in question was specifically exempted from the residuary clause in the will. Allison v. Hitchcock, 274 S.W. 798; Dunlap v. Hart, 204 S.W. 525; White v. Crawford, 87 Mo.App. 262.

OPINION

Ellison, J.

The plaintiff-respondent in this quiet title suit was adjudged by the circuit court of Jackson county to be the owner in fee simple of an undivided 5/196 interest in the real estate hereinafter described. She and the defendants-appellants all claim ownership through the will of Emma Arends Weber, deceased, a resident of Kansas. The interest in dispute is that devised by said will to Frank J. Weber, one of the testatrix' cousins, who predeceased her leaving no natural issue. Respondent claims that interest as the adopted child of Weber under Sec. 528, R. S. 1939, Mo. R. S. A., sec. 528, which provides that, "when any estate shall be devised to any . . . relative of the testator, and such devisee shall die before the testator, leaving lineal descendants, such descendants shall take the estate . . . as such devisee would have done in case he had survived the testator." Respondent contends she became a "lineal descendant" of Weber by virtue of the statutes of adoption in force in this state at the time of her adoption.

The provisions of the will and deed of adoption as pleaded in appellants' answer were admitted in respondent's reply to be correct. The dates and sequence of events also are conceded. Each side filed a motion for judgment on the pleadings, thereby raising only questions of law. The trial court overruled appellants' motion and sustained respondent's, entering judgment accordingly. From the outset these events and their dates are to be remembered. Respondent was adopted in Missouri by deed dated March 1, 1916. At that time the statutes governing such adoptions were in Chap. 20, Art. 1, R. S. 1909, and included Sections 1671, 1673 and 1675 of that revision. The will was executed about 17 years later on April 18, 1933. Frank Weber, the adoptive parent died only two months thereafter on June 16, 1933. The testatrix died and her will became effective nearly eight years after that on February 2, 1941. Chapter 20, R. S. 1909, including Sec's 1671, 1673 and 1675, supra, were repealed and new statutes enacted in lieu thereof, by Laws Mo. 1917, p. 194. But the parties agree that these statutes as changed operated prospectively, only, and do not fix respondent's status.

Respondent's brief reminds us that the testatrix died a resident of Kansas, and suggests she may have drawn her will with the law of that state in mind -- which they say recognizes an adopted child as a lineal descendant. But they further concede this bears only on the testatrix' intention; and that the Kansas law is not controlling. Neither was it pleaded. The case is briefed on the Missouri statutes, and those in force at the time of respondent's adoption, in 1916, must govern.

Another preliminary question must be settled before going further into the facts and law. When deciding the case the trial court made only a general finding of facts. Respondent therefore says we must sustain the judgment below if it can be done on any reasonable theory of law and fact, which is true. The quiet title suit was brought under the broad "hear and determine" statute, Sec. 1684, R. S. 1939, Mo. R. S. A., sec. 1684. Respondent further says in view of that fact the only issue is which of the adversary litigants has the "best title" as between themselves, citing Barr v. Stone (Mo. Div. 2), 242 S.W. 661, 664(6) and Barnett v. Hastain (Mo. Div. 2), 256 S.W. 750, 752(2). Appellants reply that since respondent by her answer claims title to the disputed interest and seeks affirmative relief by a judgment so declaring, the litigants on both sides stand in the same position, and neither can win without proving ownership of some title. We think this is correct. Cullen v. Johnson, 325 Mo. 253, 271, 29 S.W.2d 39, 46(7); Brown v. Weare, 348 Mo. 135, 145(9), 152 S.W.2d 649, 655(17), 136 A. L. R. 286.

Now, getting to the pleaded facts. The deed of adoption, duly acknowledged and recorded, was executed by The Children's Home Society of Missouri, a non-sectarian benevolent association duly chartered under the law of Missouri, to Frank J. Weber and his wife. It recited that the Probate Court of Jackson County by lawful instrument of writing surrendered and delivered the respondent to the Society on April 14, 1915, she being a female child named Mary Jackson, and born in said county "on or about the second of February, A. D. 1915." It then preliminarily recited that the child had been placed by the Society in the home of the Webers in said county, where she had remained for 90 days; that the Webers had become attached to her and desired to adopt her "as their own child," and to give her such treatment and Christian Education as they would have if she had been born to them in lawful wedlock, and change her name to Louise Roland Weber. Then the declaring part of the deed recited that by and with the consent of the Society the Webers did thereby adopt respondent as their own child, conferring on her "all the rights, privileges and responsibilities which would pertain to her if she had been born to them in lawful wedlock, and change her name to Louise Roland Weber."

At the date of the execution of the deed, Sec. 1675, R. S. 1909, specifically governing such institutional adoptions, provided (italics ours):

"Whenever any minor child below the age of seven years, intrusted by its parents or either of them to the care and custody of any legally incorporated institution in this state for the care and custody of minor children, or to any individual who may conduct such an institution, shall have been abandoned by such parents for a period of two years, or whenever...