SEDDON, C.
This action is one in equity by which appellant (plaintiff below) seeks to have determined her legal status as an adopted daughter and lawful heir of Michael Cleary, deceased, and her interest as such in and to a one-half interest in his estate, both real and personal. The respondents (defendants below) are Edward A. Feehan, the duly appointed and qualified executor of the estate of Michael Cleary, deceased, Nellie Cleary, the surviving widow of said Michael Cleary and a beneficiary under his last will and testament, John M. Cleary, a nephew, and Michael Cleary, a grandnephew of deceased, who are also beneficiaries under his said will.
Plaintiff's second amended petition states her cause of action thus:
"That Michael Cleary, late of the city of St. Louis, died on the 28th day of April, 1921, leaving surviving him as his sole heirs at law the defendant, Nellie Cleary, his wife and the plaintiff herein, who is the adopted daughter of the said Michael Cleary, deceased. Plaintiff states that when she was an infant about the age of three days, and on, to wit, about the 28th day of November, 1885, the said Michael Cleary and his then wife, now deceased, took this plaintiff at the time of the death of her mother, declaring, stating and agreeing at said time that he would provide and care for and adopt her as his child and heir; that from that time on until about the year 1906, and until plaintiff was married, plaintiff continued to reside at the household of the said Michael Cleary and was told by him that she was his child; that the said Michael Cleary educated her, and that he received the benefit of her services, love, and affection until long after she reached her majority; that the said Michael Cleary at all times spoke of plaintiff as his daughter and introduced her to the public as his daughter, and gave to said plaintiff the name of Margaret Cleary, and the plaintiff at all times treated the said Michael Cleary as her father and called him `father,' and his then wife as mother; and plaintiff states that at the time she was taken into the family of Michael Cleary, and at the time that said Michael Cleary stated, declared, and agreed that he would adopt plaintiff as his daughter and bring her up as his child, and took plaintiff as his said child, and plaintiff states that there was full performance of the declaration of the said Michael Cleary to adopt and bring up plaintiff as his child on the part of said Michael Cleary, and there was full performance on the part of plaintiff as a child and daughter of Michael Cleary."
The petition then alleges that Michael Cleary, on or about May 31, 1919, executed his last will and testament, which was duly admitted to probate by the probate court of the city of St. Louis, and that letters testamentary were duly issued to defendant, Edward A. Feehan, who qualified as the executor of deceased's estate; that under the terms of said will, one-half of deceased's estate was devised and bequeathed to defendant, Nellie Cleary, and one-fourth of said estate was devised and bequeathed to each of the defendants, John M. Cleary and Michael Cleary. The petition then concludes:
"Plaintiff further states that said Michael Cleary, deceased, died intestate as to plaintiff herein, in that the said Michael Cleary, deceased, through oversight or forgetfulness, failed to mention or provide for the plaintiff his said will in any way; that said Michael Cleary, deceased, at the time of his death possessed a large amount of money, promissory notes, and other securities and real estate, the exact value and amount of which are not at this time known to plaintiff, but upon information and belief, plaintiff alleges the amount and value to be in excess of $50,000; that plaintiff is an heir at law in said estate and entitled to the whole of the remainder of said estate, both in the realty and personalty thereof, after the widow, the defendant Nellie Cleary's interest therein has been assigned and set off to her, either under the terms of said will or upon her claiming dower, as she may elect. Wherefore, plaintiff prays that issues be framed to determine the facts aforesaid, and that she be adjudged a daughter and a lawful heir of said Michael Cleary, and entitled to a one-half interest in his estate, both real and Personal, and a tenant in common with the defendant, Nellie Cleary, in all of said real estate, and that an accounting be had between her and said executor, heirs and devisees, and for all such other and further relief as to the court may seem just in the premises."
Defendants, John M. Cleary and Michael Cleary, filed separate answers, identical in form, which admit the appointment and qualification of the executor of deceased's estate, but deny generally all other allegations of the petition. The answers plead the following special defenses:
"(2) For further answer and defense, this defendant states that the pretended contract declared upon in plaintiff's second amended petition herein was not to be performed within one year next after the alleged making thereof, nor was the same nor any memorandum or note thereof reduced to writing and signed by Michael Cleary, nor by any other person for him thereto lawfully authorized. Wherefore, this defendant states that said pretended contract is within the statute of frauds and perjuries, and is void, and no action can he maintained thereon. (3) For further answer and defense this defendant states that plaintiff has wholly failed to perform on her part the pretended contract declared on in her second amended petition herein. Wherefore, having fully answered, this defendant prays to be hence dismissed with his costs."
The defendants, Edward A. Feehan, executor, and Nellie Cleary, widow of deceased, filed separate answers denying generally the allegations of the petition. The cause, being one in equity, was tried by the court nisi without the aid of a jury.
Plaintiff's evidence tended to show that she is the natural granddaughter of a deceased wife of Michael Cleary; that Michael Cleary's deceased wife was plaintiff's paternal grandmother and Michael Cleary was her stepgrandfather; that Michael Cleary was childless; that plaintiff's natural father was Tom Holmes, a son of the deceased wife of Michael Cleary; that plaintiff's natural mother died from childbirth when plaintiff was three days old; that plaintiff was taken by the paternal grandmother into the home of Michael Cleary when she was five days old, and continued to reside with Michael Cleary until after she was of adult age, and until she married and moved to a home of her own; that she was educated by Michael Cleary, treated by him as a daughter and in turn rendered unto him the love, affection, services, And duties owing from a natural daughter to the natural father; that she was called "daughter" by Michael Cleary, and she always called him "father"; that she took the surname of Michael Cleary, and was always known as Margaret, or Maggie, Cleary, by members of the family and by her friends and schoolmates; that her natural father, Tom Holmes, died when plaintiff was 11 years of age, and her paternal grandmother, Mrs. Cleary, mother of Tom Holmes, died a few months later, but plaintiff continued to live with her stepgrandfather, Michael Cleary, until her marriage, during which time the relationship of parent and child existed between them as before the grandmother's death.
Plaintiff's aunt, Mrs. Theresa Williams, a sister of Tom Holmes, testified for plaintiff:
"The plaintiff, Margaret Lamb, is my niece, being my brother's daughter. My brother's name is Thomas Holmes. The plaintiff was born in Kansas City, Kan. Margaret's natural mother was my sister-in-law, she having married my brother, and she was living in Kansas City, Kan., at the time of Margaret's birth. That Margaret's mother survived between three and five days after Margaret's birth; that Margaret was five days old when they brought her to St. Louis. My mother, Mrs. Cleary, and my stepfather, Michael Cleary, took possession of Margaret. Michael Cleary is the deceased gentleman mentioned in this case. My mother was parental grandmother, the father's mother, and Michael Cleary was the stepgrandfather.
"Question: Now tell the Court, Mrs. Williams, what your mother said and what your stepfather said about the circumstances under which they took Margaret into their home.
"The Court: Just tell what was said.
"Witness: Well, my brother wrote from Kansas City to my mother to come and get the baby, sent a wire to come to Kansas City. Mr. Cleary said, `Get the child and bring it home to our home,' and he assumed the guardian of the child, and always took the entire charge of her, all during her life, up to the age of 20. Mr. Cleary told my mother to go to Kansas City and bring the baby home. He said, `Let's take the child.'
"The Court: Just tell who was present, where the conversation took place, and what was said.
"Witness: Yes; well, I know after they came into the house, that, of course, they talked about the baby and it was at his request that she went for the child, because she naturally would not bring that little baby home without it was agreeable to him, and he said that they would like to have the child, if he could have it for his own, loved her from the start, and they had full charge of her.
"Mr. O'Keefe (Question): What did your brother, Margaret's father,...
