Lynn v. Hockaday

• Citation: 162 Mo. 111,61 S.W. 885
• Parties: LYNN et al. v. HOCKADAY.
• Decision Date: 12 March 1901
• Court: United States State Supreme Court of Missouri

61 S.W. 885

162 Mo. 111

LYNN et al. v. HOCKADAY.

Supreme Court of Missouri, Division No. 1.

March 12, 1901.

DOWER — HUSBAND AND WIFE — WITNESSES — MARRIED WOMAN — STATEMENTS BY HUSBAND — ADMISSIONS — ADOPTION — PAROL CONTRACT — EXECUTED AGREEMENT — DESCENT AND DISTRIBUTION — RIGHTS OF ADOPTED CHILD.

1. Where, in a suit for the admeasurement of dower, a widow withdrew her answer, and elected in open court to take dower, she had no interest in a controversy between the heirs as to the share of an adopted child which would render her incompetent to testify to the adoption.

2. Rev. St. 1899, § 4656, provides that no married woman shall be disqualified to testify in civil suits by or against her husband in certain cases, provided that the section shall not be construed to authorize or permit her to testify to admissions or conversations of her husband. Held, that the proviso was limited to the provisions of the section, and did not extend to the right of a married woman to testify generally in suits against others than her husband, and hence it did not prohibit a widow from testifying to conversations of her husband with the person from whom a child was adopted by him, in an action by such child to recover a child's share in the husband's estate.

3. An orphan's grandmother gave the child to decedent, believing it would be raised as his own child, refusing to surrender the child on any other condition. The child was taken by decedent, given his name, and raised as his own child. He called her his daughter, and concealed the fact that she was not his daughter from her until she was 18 years of age. She passed in society as decedent's daughter, and lived with them until her marriage, but was never adopted by deed as required by statute. Held, that such facts showed an executed agreement, to adopt which was not avoidable for lack of a deed, and hence the adopted child was entitled to a child's share in decedent's estate.

Appeal from circuit court, Cass county; W. W. Wood, Judge.

Suit by James F. Lynn for admeasurement of dower in the estate of James Lynn, deceased. Lillie Hockaday intervened by answer and cross bill, alleging adoption by decedent, and claiming a child's share in the estate. After trial, plaintiff died, and Sarah Lynn, his administratrix, and his heirs, were substituted as parties. From a judgment dismissing the cross bill, intervener appeals. Reversed.

Wallace & Wallace and Chas. W. Sloan, for appellant. Noah M. Givan and Allen Glenn, for respondent.

VALLIANT, J.

This suit was for the admeasurement of dower of the widow of James Lynn, intestate, in which his son James F. Lynn claimed to be the only heir, but by leave Lillie Hockaday was made a party, and filed an answer and cross bill showing that she was in fact the adopted daughter of the intestate, although no deed of adoption had been executed, and claiming a child's share in the estate. Issue was joined on the case made in her cross bill, and upon the trial by the court there was a finding and decree against her, from which decree this appeal is taken.

The testimony on behalf of Lillie Hockaday showed that in 1875 she was an infant between 3 and 4 years old. Her name was then Julia Pettie. Both of her parents were dead, and she was left to the care of her maternal grandmother, who was old, and in poor circumstances, being herself dependent on her son for maintenance. She was the youngest of several children, who, at the death of their parents without any estate, were left dependent on relatives who were unable to provide comfortably for them. At that time James Lynn was a farmer in good circumstances, living on his farm with his wife, the widow in this case. They had been married about five years, and had had no child, but he had a son by a former marriage, James F. Lynn, who was the original plaintiff in this case, but who has died since the trial of the suit, and his heirs and administratrix have been substituted as parties. Mr. and Mrs. Lynn, hearing of the little orphan, went together to the old grandmother, who lived about eight miles from them, to see the child, and learn if the grandmother would give her to them. That was in March or April, 1875, and for just what was said between the parties interested on that visit we have to depend upon the memory of Mrs. Lynn and Mrs. William Cook, an aunt of the child's; the grandmother and Mr. Lynn, the real parties to the alleged contract, both being dead. When Mrs. Lynn was offered as a witness, the plaintiff objected on the ground that she had been the wife of James Lynn, and for that reason was incompetent to testify in the case. The court overruled that objection, but on further objection ruled that she would not be allowed to testify to conversations with her husband when they were alone. Her testimony as to the agreement was that when they went to see the grandmother they had a talk with her about the child in which the grandmother told them that the child's mother on her deathbed had given the child to her, and that it was very dear to her, but, to get the child a good home, she would make a sacrifice of her own feelings. She said that she had had two or three opportunities to give her to parties to raise, but that was not what she wanted. She wanted some one to take the child, and raise her for their own child, and where there were no other children. On those terms she would let her go. Mr. and Mrs. Lynn did not decide then to take her, but went home, and considered the matter for several days, and, after so considering it, returned together to the grandmother, who gave the child to them, and they brought her home. Under the ruling of the court this witness was not permitted to testify as to what her husband said to her on the subject. She was asked: "Q. When you were talking to Mrs. Cook [the grandmother], what did she say, and how did she say she wanted a person to take her? A. Take her for their own child. To adopt her. Q. That is what she said herself? A. Yes, sir. Q. Did you all agree to that? A. Yes, sir; we agreed to it." Upon cross-examination plaintiff showed this witness a letter, which she acknowledged to have written, and which was addressed to one of plaintiff's witnesses, Thomas Collins, asking him what he knew about the case, and soliciting his interest in behalf of the adopted child, appealing to him as an old friend of the family, etc. In the letter she said: "You were the one who told us about the child. Advised us to take her, and sent us to Grandma Cook's to see about it, which we did. Was pleased with the little child, and took her as our own. Mr. Lynn agreed to take her, adopt her as our own, as fairly as he ever did anything in his life. We was busy that summer, and did not attend to having it recorded just then." Mrs. William Cook was present when Mr. and Mrs. Lynn came to take the child, and she undertook to testify as to the agreement. But, though she seemed to be an intelligent woman, she became confused in endeavoring to give the substance of the conversation, and was unable to understand the technical distinction between giving the substance of the conversation and drawing a conclusion therefrom. When asked to state the conversation, she said it was so many years ago she would not remember the words that were used. Then, when asked to state the substance of the conversation, she said that the substance was the child was to be adopted. Upon motion of plaintiff, that was ruled out as the statement of a conclusion. After being plied with like questions several times, she seemed to grow a little impatient; for example: "Q. Now, can you give the exact conversation, if so, do so? A. No, sir; I cannot. Q. What was the substance of the conversation? Mr. Jarrott: State what was said. The Court: Take up what each one said, and tell as near what they said as you can. A. I cannot take up anything, for I do not remember it; and I am not going to do it either. * * * Q. I want you to give what you know about it. You were there. A. I have told you they were there, but I cannot tell you any of the conversation; only the agreement." The court ruled that that was a conclusion, and again told her not to state her conclusion, but to state the substance, to which she replied: "A. I told you the run of the substance. Q. What was it? A. They were to adopt that child." The court again ruled that that was but a conclusion. There was a good deal of such examination and cross-examination, with the result as above indicated. When the grandmother gave the child to Mr. and Mrs. Lynn, — which was on their second visit, — they took her home in their buggy, and, passing through the town of Pleasant Hill, called on Mrs. Shortridge, a friend of theirs. Mrs. Shortridge testified that when Mr. and Mrs. Lynn came in Mrs. Lynn said, "See our little girl," and Mr. Lynn said that her grandmother had given her to them to raise as their own child. When they took her home, Mr. and Mrs. Lynn immediately changed the child's name to Lillie Lynn, and thereafter she bore that name, and none other, until she was married. She was reared in the family of Mr. and Mrs. Lynn in all respects as if she was their own child, and she herself was taught to believe that they were her own father and mother, and she was never informed to the contrary until she was 17 or 18 years old. She addressed them as "papa" and "mama," and they called her "daughter." A letter from Mr. Lynn to her when she was about 13 years old was in evidence, in which he addressed her as his "dear daughter," and referred to Mrs. Lynn as her mother. She was as a dutiful loving daughter to both of them, and they were as kind and affectionate parents to her. She was never allowed to see her own brothers or sisters, or any of her blood relations, or to know that she had any such. In the home circle, among neighbors, in school, in society, wherever she went, she was known as the daughter of Mr. and Mrs. Lynn, and she believed so herself...