Hemphill v. Jackson

• Decision Date: 05 November 1957
• Docket Number: No. 29960,29960
• Citation: Hemphill v. Jackson, 306 S.W.2d 610 (Mo. App. 1957)
• Parties: Gladys HEMPHILL (Plaintiff) and William Crouch (Intervenor), Appellants, v. L. Craig JACKSON, Administratrix of the Estate of C. Lee Downey, Deceased (Defendant), Respondent.
• Court: Missouri Court of Appeals

Page 610

306 S.W.2d 610

Gladys HEMPHILL (Plaintiff) and William Crouch (Intervenor) Appellants, v.L. Craig JACKSON, Administratrix of the Estate of C. Lee Downey, Deceased (Defendant), Respondent.

No. 29960.

St. Louis Court of Appeals, Missouri.

Nov. 5, 1957.

Rehearing Denied Dec. 2, 1957.

Tilford & Dobbins, Stuart Alexander, Louisville, Fuller, Ely & Hibbard, Hannibal, for appellants.

Carstarphen & Harvey, Rendlen & Rendlen, Hannibal, for respondent.

WOLFE, Commissioner.

This action, which is a proceeding for the discovery of assets, originated in the Probate Court of Marion County and from a judgment there for the defendant administratrix, the plaintiffs appealed to the Hannibal Court of Common Pleas.Upon trial in the court of common pleas there was again a judgment for the defendant and the plaintiffs appealed to the Supreme Court.The Supreme Court transferred the case to this court for the reason that the record failed to reveal that the amount in controversy brought the appeal within its jurisdiction.Hemphill v. Jackson, Mo.Sup., 304 S.W.2d 7.

C. Lee Downey died intestate in Marion County, Missouri, on March 9, 1953, and L. Craig Jackson was appointed administratrix of his estate on April 14, 1953.Thereafter Gladys Hemphill brought this proceeding to discover assets, contending that the administratrix, L. Craig Jackson, had failed to inventory as an asset of the estate 1440 shares of C. L. Downey Company, an Ohio corporation.The plaintiffGladys Hemphill claimed to be a cousin of C. Lee Downey, deceased, and averred that she was next of kin in that no one nearer in the line of intestate succession was living except one who had renounced all claim to the estate.Another alleged cousin named William L. Crouch intervened and joined the plaintiff in her effort to have the corporate stock inventoried as an asset of the estate.The administratrix, L. Craig Jackson, claimed to be the adopted daughter of C. Lee Downey.She also claimed that she had a survivor's title to the 1440 shares of stock of the C. L. Downey Company, stating that the certificates were all issued to 'C. Lee Downey or Mrs. L. Craig Jackson'.She denied that Gladys Hemphill and Crouch were related to the deceased, C. Lee Downey.

The issues presented raised a question, preliminary in nature, as to whether or not Gladys Hemphill and William L. Crouch were proper partiesplaintiff.The statute provides that a proceeding to discover assets may be brought by any interested person.Sec. 462.440, RSMo 1949, Sec. 473.353, R.S. 1949, as amended in 1955, V.A.M.S.If L. Craig Jackson was in fact the adopted daughter of C. Lee Downey, she would have inherited from him as his natural child.Sec. 453.090 RSMo 1949, V.A.M.S.;Kindred v. Anderson, 357 Mo. 564, 209 S.W.2d 912.In that event a cousin of the deceased would take nothing under the law of intestate succession as provided by Section 468.010 RSMo 1949, V.A.M.S., Section 474.010 RSMo 1949, as amended in 1955, V.A.M.S., and consequently Gladys Hemphill and Crouch, even though cousins, would not be interested persons.It is, of course, quite evident that if the plaintiffs are not in fact cousins of the deceased they are not interested persons no matter what the status of L. Craig Jackson may be.Thus a finding on either of these issues in favor of the defendant administratrix would leave the plaintiffs without any right to maintain this action.

In view of the foregoing, the question of Mrs. L. Craig Jackson's relation to the deceased, C. Lee Downey, will be first considered.She was by birth a cousin once removed of C. Lee Downey, being a granddaughter of Downey's maternal aunt.Mrs. Jackson's maiden name was Lucille Craig and she and her family were very close friends of C. Lee Downey.Her sister was named after him and the Craigs called him Uncle Lee.As a girl Mrs. Jackson went from her home in Sparta, Kentucky, to work for C. Lee Downey and lived at Downey's father's home.His father was John J. Downey and a favorite relative of Mrs. Jackson.After working in Cincinnati for a short time, she went to New York and in a course of time became what is termed 'a stylist', which entailed the selection and recommendation of suitable wardrobes for women.She successfully established herself in this business in New York and it was there that she met and married Dr. John Jackson.Mrs. Jackson had a number of theatrical persons as clients in New York and in 1929, when a great many of the stars of the New York stage went into motion pictures in California, Mrs. Jackson and her husband, whom she had just married, moved to Hollywood.There she again established herself as a stylist.

In 1937, C. Lee Downey went to California.He and his wife were separated and she had by a separation agreement waived any interest that she had or might have in his property or estate.The Downeys had no children.While in California C. Lee Downey talked to Mrs. Jackson and sought to prevail upon her to return to Cincinnati and enter his business.She later did this with the understanding that the business was to be hers upon Downey's death.Mrs. Jackson, whose husband had died, returned to Cincinnati and went into the C. L. Downey Company.From then on she took over an active part in its operation and management.Downey said that he had adopted her as his daughter.He talked to her father about the adoption and displayed a paper said to relate to it.Downey and Mrs. Jackson thereafter lived together and he introduced her as his daughter on many occasions to numerous people, who so testified.

There was evidence that the purported adoption took place in Cincinnati, Ohio.The chief deputy of the Probate Court of Hamilton County, Ohio, which is the county in which Cincinnati is located, testified that he had examined the records of the court and that there was no record of any adoption of Mrs. L. Craig Jackson by C. Lee Downey.He also testified that there was no record of C. Lee Downey having filed with the court a designation of Mrs. Jackson as his heir as he could have done under the statutes

The adoption, if it took place, took place in Ohio.It was there that the agreement to adopt was consummated and it was there that the administratrix claims that the adoption took place.The laws of Ohio consequently govern.2 C.J.S.Adoption of ChildrenSec. 3, p. 371.At the time it was alleged to have taken place L. Craig Jackson was an adult and the laws of Ohio had no provision for the adoption of adults.Section 10512-9, Page's Ohio General Code 1946, which was the law in effect at the time, provided only for the adoption of minor children.There was but one way that this could be done and that was by a proceeding in the probate court.Section 10503-12, Page's Ohio General Code 1946, contained a provision whereby an adult could be designated as an heir by the party making the designation filing a written instrument in the probate court so stating, but there was no record in the court of such a designation ever having been filed.It consequently follows that there was no statutory adoption of any nature.Nor can we, as the respondent suggests, follow the Missouri cases relating to equitable adoption.As stated before, the Ohio law prevails in this case; but even if the Missouri law did prevail, it would not aid the defendant, for the doctrine of equitable adoption cannot be applied to an oral contract to adopt a person who was an adult at the time the oral contract was made.Thompson v. Moseley, 344 Mo. 240, 125 S.W.2d 860.The trial court properly found that L. Craig Jackson was not the adopted daughter of C. Lee Downey.

It is therefore true that if Gladys Hemphill and William Crouch were cousins of the deceased, C. Lee Downey, they were proper partiesplaintiff.The evidence as it relates to this is that John Downey, the father of C. Lee Downey, was really named Lake and that he had changed his name to Downey.To support Gladys Hemphill's claim of relationship, she introduced in evidence the death certificate of John Downey which gave the name of his parents as Louis H. Lake and Robecca Lake.She testified that John Downey had a brother who never changed his name.He was William Henry Lake and she was William Henry Lake's daughter.Three witnesses testified that John Downey had referred to William Henry Lake as his brother.Pictures of tombstones were offered to support the claim that John Downey's real name was John Lake.The testimony of the witnesses was not contradicted on any material matter and if true it established as a fact that Gladys Hemphill was a cousin of C. Lee Downey, deceased.The trial judge who heard and saw the witnesses believed them and found that the plaintiff was so related to C. Lee Downey.This was amply supported by the evidence and the court did not err in so holding, as respondent here contends.

As to the finding of the court that intervenor, Crouch, was a cousin of C. Lee Downey, this rests upon the testimony of a Mrs. Miller, who also was a cousin of Downey on his mother's side.She stated that William Crouch was a son of C. Lee Downey's maternal aunt.The relationship of the aunt was supported by the Bromley family Bible.Bromley was the maiden name of C. Lee Downey's mother.There is no evidence in contradiction of this and the claim of Crouch that he is a cousin of C. Lee Downey is supported by the evidence.The trial court therefor correctly held that the plaintiff and the intervenor were proper parties to this action.

As stated, the issue sought to be determined relates to the title to the preferred stock of the C. L. Downey Company.The appellants here contend that L. Craig Jackson held the stock in common ownership with C. Lee Downey and that she is therefore entitled to but one half of the 1440 shares and that the other half should be inventoried as an asset of Downey's estate.Mrs. Jackson conversely contends that she and Downey held the shares by the entirety and that ...