Holloway v. Jones

• Decision Date: 18 December 1922
• Docket Number: No. 22854.,22854.
• Citation: Holloway v. Jones, 246 S.W. 587 (Mo. 1922)
• Parties: HOLLOWAY v. JONES.
• Writing for the Court: Brown
• Court: Missouri Supreme Court

246 S.W. 587

HOLLOWAY v. JONES.

No. 22854.

Supreme Court of Missouri, Division No.

December 18, 1922.

Appeal from Circuit Court, Scott County; Frank Kelly, Judge.

Suit by James G. Holloway against Mrs. Minnie Jones (née Holloway). From a judgment for defendant, plaintiff appeals. Affirmed.

T. R. R. Ely, of Kennett, R. L. Ward, of Caruthersville, and Orville Zimmerman, of Kennett, for appellant.

McKay & Jones, of Kennett, for respondent.

BROWN, C.

This is a suit brought in Dunklin county, June 9, 1920, under the provisions of section 1970 of the Revised Statutes of Missouri, 1919, to try title to the following described lands situate in said county:

"The north half (N. ½) of the northwest quarter (N. W. ¼) of section eleven (11), and the northeast quarter of the northeast quarter (N. E. ¼ of N. E. ¼) of section ten (10) and the southeast quarter of the southeast quarter (S. E. ¼ of S. E. ¼) of section three (3) and the west half of the southwest quarter (W. ½ of S. W. ¼) of section two (2), all in township No. eighteen (18) north of range No. nine (9) east, containing two hundred and forty acres; also, eight feet off of the east side of lot No. 12 (12) in East Kennett. * * *"

Both parties claim by inheritance from Louisa McHaney.

The petition is in the conventional form, claiming title in fee to the lands described. The defendant, on July 13, 1920, it being the second day of the July term, filed her answer 'which, although of great length, is in substance as follows: That in 1896 the defendant, being then an infant about two years old, lived with her parents, the plaintiff and his wife, Ella Holloway, on a farm in Dunklin county, while T. N. McHaney and Louisa McHaney, his wife, who had been married many years but were childless, lived in Kennett in said county; that between that time and 1903 an agreement was made between her parents and McHaney and wife by which she was given to the McHaneys to be adopted by them and reared as their own child and heir; that the Holloways thereupon relinquished all their right to and control of the defendant to McHaney and wife, and pursuant to such surrender and adoption the McHaneys agreed to rear, educate, maintain, provide for and control, and adopt the defendant, then Minnie Holloway, agreeing that she should retain the surname of Holloway; that pursuant to said agreement she was surrendered to the McHaneys and lived with them both until the death of T. N. McHaney in 1914, after which she lived with Louisa McHaney until more than two years after her own marriage to one Emmet Jones, and a year after the birth of her child Edward Jones; that from the time she was a mere infant, as far back as she can remember, she lived with, was controlled, maintained, educated, and provided for by the McHaneys, and after the death of said T. N. McHaney and before her marriage she continued to live with Louisa McHaney, treating the McHaneys during all that time with the kindness and affection that children are wont to display toward their natural parents, and performing the services that children ordinarily perform for their natural parents, and the McHaneys during their lifetime continued to lavish upon her the affection and care that parents are wont to show their children; that during all that time the McHaneys referred to her as their child and daughter and often stated that they raised her, she was theirs, that the Holloways had given her to them, and that they intended that she should have their property at their death.

That for many years prior to his death Mr. McHaney was an invalid, and that defendant nursed and cared for him during his last days with the same affection as if he had been her own parent, and also nursed, cared for, and comforted Mrs. McHaney in all respects as if she had been her natural mother. That from the time she was taken into the McHaney home she continuously made her home in that household until about two years after her marriage.

That after defendant with her husband and child removed from the McHaney home, they continued to visit each other, and treat each other in all respects as parent and child; Mrs. McHaney loving and treating the child as her own grandchild. That the defendant at all times during these relations believed that she was the adopted daughter of the McHaneys both in law and in fact.

That after the death of T. N. McHaney, Mrs. McHaney made a will in favor of defendant, which could not be found after her death.

That no deed of adoption was executed by the McHaneys, but that they obtained possession of her and kept her throughout their lives under their agreement to adopt and rear her as their own daughter, and gave as a reason therefor that they were getting old and were childless, and that they wanted the defendant that she might comfort and cherish them in their declining years. That she gave up own parents and devoted the best years of her life to the McHaneys under the belief that she was their adopted child and heir, and that to now be deprived of all the benefits pertaining to such relation would be a gross injustice to her, and that in equity she is entitled to be treated, for purposes of inheritance, as their adopted child, as against the plaintiff, who sustains no other relation to the McHaneys than that of a collateral relative of the half blood, and that as adopted child and heir at law of Louisa McHaney she is now entitled to the entire estate of which she died seized. The defendant further says that during the whole time since she was surrendered to the McHaneys the plaintiff has never contributed anything to her support or care or protection, or otherwise treated her as his own daughter instead of the daughter of the McHaneys, and ought now to be estopped from claiming as the heir of Mrs. McHaney as against the defendant on the ground that she is his natural daughter and not her daughter by adoption.

The answer ended with a prayer for judgment that she was the owner in fee of the land and for general relief.

Upon the filing of the answer, the plaintiff made application for a change of venue, which was thereupon granted to the circuit court for Scott county, where the plaintiff filed his reply: (1) Denying generally and specifically the allegations of new matter in the answer except that he was the half-nephew of Mrs. McHaney; (2) pleading the coverture of Mrs. McHaney up to 1914, when her husband died; (3) pleading the statute of frauds in bar.

The trial came on in the Scott county circuit court at the August term, 1920, resulting in a judgment for defendant as prayed in her answer, and an appeal was taken therefrom to this court. There is little or no question about the substantive facts. The McHaneys, husband and wife, were elderly people at the time of the opening of this story in 1896, residing in the city of Kennett in Dunklin county, where they continued to live up to the time of the death of Mr. McHaney, while Louisa, his widow, from whom both parties to this controversy claim title by inheritance, continued to live in the same place until her death, March 20, 1920. Mrs. McHaney was the daughter of an elderly lady designated in the record as Grandma Marsh, who became attached to the child, who was permitted to spend the most of her time with her in the McHaney household. About 1903, when defendant had become of school age, she began to reside continuously in the McHaney home, which she continued to do while attending school and up to the time of her marriage and until after her child was born. During the time of her residence in the McHaney family it is not in evidence that her father contributed in any way to her support or education, or that she was ever in his house in the capacity of a member of his family after the beginning of her school days. Mr. McHaney, during the most of that time, was in poor health. She performed the duties and exercised the privileges and rights of an active member of the family, purchasing goods on credit at the city stores and signing checks against Mrs. McHaney's account in payment, as the necessity arose, and it does not appear that her authority was ever questioned.

During the latter part of Mrs. McHaney's life the relations between her and Holloway do not seem to have been friendly on his part, for the evidence indicates that he did not visit her during her last sickness, nor visit her house after her death, nor attend her funeral.

The witnesses were numerous on the part of the defendant, to the facts that the McHaneys, and particularly Mrs. McHaney, after her husband's death, during defendant's residence with her, spoke of her as their child, their daughter, and their heir, and said that she would take their property after their death.

Miss May E. Dickey testified that she was called either personally or by telephone to the home of Mrs. McHaney after her husband's death and found her lawyer, Mr. Tribble, there, and that while she was there a will was written by Mr. Tribble for Mrs. McHaney by which she gave her property to the defendant with the condition that if defendant should die or marry it was to go to her heirs, and in default of heirs to the Odd Fellow's Home or some similar institution; that plaintiff was not referred to in this will. She did not remember whether she witnessed it or whether it was signed or not, but did remember that Mr. Tribble read It.

Dr. Harrison had been the McHaney family physician for 20 years—ever since 1897 —and had seen the defendant in the McHaney home since she was a small child. She lived there from that time until she was married, and he heard the question of her adoption discussed between Mr. and Mrs. McHaney several times. They discussed the making of adoption papers several times. At one time he heard Mrs. McHaney say that he ought to have the adoption papers fixed up, and he said, "By God, there is no use," that her father gave her to them, and that Tribble told him there was no use getting out any adoption...