McClellan v. Oliver
| Decision Date | 06 December 1943 |
| Citation | 181 S.W.2d 784,238 Mo.App. 409 |
| Parties | Alva McClellan, Appellant, v. Mary C. Oliver, Administratrix of the Estate of Amelia Simcoe, Deceased, Willard Smith, et al., Respondent |
| Court | Kansas Court of Appeals |
Appeal from Callaway Circuit Court; Hon. W. M. Dinwiddie, Judge.
Affirmed.
Baker & Baker for appellant.
(1) Where one takes a child into his home as his own, voluntarily assuming the status of parent, obtains from the child the love, affection, companionship and services which ordinarily accrue to a parent, he is thereafter estopped to assert he did not adopt the child in the manner provided by law. Rausch v. Metz, 212 S.W. 357; Holloway v Jones, 246 S.W. 587; Shelp v. Mercantile Trust Co., 322 Mo. 682, 15 S.W.2d 818. (2) The appellant was a competent witness in her own behalf. Rausch v. Metz supra. (3) Appellant should have been permitted to plead and prove a contract made with Willard Smith, after she instituted this suit and after he had instituted a similar suit for the same purpose. (a) When a court of equity has the subject-matter of a suit within its grasp and has jurisdiction of the parties, it will retain jurisdiction until full and adequate justice has been done between the parties. Cooper v. Cook, 347 Mo. 528, 148 S.W.2d 512; Lortz v. Rose, 346 Mo. 1212, 145 S.W.2d 385; 30 C. J. S., pp. 414-424, secs. 67-70. (b) The contract pleaded is a proper and lawful contract. Brandenburger v Puller, 266 Mo. 534, 181 S.W. 1141. (c) It is settled law that parties may bring to the attention of the court by amended or supplemental pleadings facts occurring after the institution of the suit which are pertinent to the issues made by the original pleadings. McFall v. Murray, 342 Mo. 737, 117 S.W.2d 330, 332; Drake v. Kansas City Public Service Co., 333 Mo. 520, 63 S.W.2d 75; 21 C. J., p. 526, sec. 627; Sec. 977, R. S. 1939. (d) The old rule in equity that matters occurring after the filing of the suit should be brought to the attention of the court by supplemental petition has been abolished. The proper manner now is to file an amended petition. Ward v. Davidson, 89 Mo. 445; Cohn v. Sanders, 175 Mo. 455, 75 S.W. 413; McFall v. Murray, supra; Drake v. K. C. Pub. Serv. Co., supra. (4) The whole theory of equitable adoption is based upon the doctrine of estoppel. Appellant should have been permitted to plead and prove facts which estopped the respondent to deny her alleged rights in the estate of the deceased. (a) A party cannot assume inconsistent positions in the same case. City of Festus ex rel. v. Kausler, 105 S.W.2d 646; State ex rel. v. Haid, 328 Mo. 729, 41 S.W.2d 806; Central States Life Ins. Co. v. Bloom, 345 Mo. 982, 137 S.W.2d 517. (b) Where right and justice demand, equitable estoppel doctrine applies. State ex rel. v. Haid, supra. (c) One who, by his renunciation or disclaimer of a right or title, has induced another to believe and act thereon is estopped afterwards to assert such right or title. 21 C. J., p. 1148, sec. 153-C; Huntsucker v. Clark, 12 Mo. 333; Ford v. Fellows, 34 Mo. 630. (d) By the acceptance of benefits one may be even estopped from questioning the existence, validity and effect of a mortgage or deed. 21 C. J., p. 1210, sec. 212; Anthony v. Ray & Somerville, 28 Mo. 109; Grooms v. Mullett, 133 Mo.App. 477, 113 S.W. 683.
Hulen & Sappington for respondents.
(1) The record in this case fails to show evidence necessary to sustain an oral adoption or adoption by estoppel; an agreement to adopt; a holding out to the public and to the child, by the adopting parent; and a reliance and action upon such representation by the child to the extent that it would work a fraud to deny adoption. Grantham v. Gossett, 182 Mo. 651; Wales v. Holden, 209 Mo. 552; Lamb v. Feehan (Mo.), 276 S.W. 71; Benjamin v. Cronan (Mo.), 93 S.W.2d 975; Furman v. St. Louis Union Trust Co., 92 S.W.2d 726; Arfstrum v. Baker, 214 S.W. 859; Stillman v. Austin, 148 S.W.2d 573; Thornton v. Miller, 151 S.W.2d 1101; Barnett v. Clark, 252 S.W. 625; Keller v. Lewis County (Mo.), 134 S.W.2d 48; Taylor v. Hamrick et al. (Mo.), 134 S.W.2d 52; Asbury v. Hicklin, 181 Mo. 658; Kinney v. Murray, 170 Mo. 674; McElvain v. McElvain, 171 Mo. 244. (2) The court did not err in holding that the appellant was an incompetent witness in her own behalf to testify to the terms of an oral contract of Amelia Simcoe, deceased, and as to acts or conduct of Amelia Simcoe which might tend to prove such a contract. Maness v. Graham (Mo.), 142 S.W.2d 1009; Teats v. Flanders, 118 Mo. 660; Oliver v. Johnson, 238 Mo. 359; Rauch v. Metz (Mo.), 212 S.W. 357; Sec. 1887, R. S. Mo. 1939. (3) The court did not err in striking out the pleadings in the amended petition, the reply and the motion for judgment relating to an alleged contract by the appellant and Willard Smith, because: (a) The alleged contract and the facts pleaded with reference thereto were entirely irrelevant to the plaintiff's cause of action and did not in any manner tend to strengthen or reinforce the appellant's cause of action set forth in her original petition. Drake v. K. C. Pub. Serv. Co., 333 Mo. 520, 63 S.W.2d 75; Scovill v. Glasner, 79 Mo. 449; Kent v. City of Trenton (Mo. App.), 48 S.W.2d 571; Neal v. 12th & Grand Ave. Bldg. Co., 228 Mo.App. 536, 70 S.W.2d 136; Boyd v. St. Louis Brewing Assn., 318 Mo. 1206, 5 S.W.2d 46. (b) The pleadings setting out the alleged contract and facts relating to it constituted a departure from the plaintiff's original petition and the allegation of a new, different and distinct cause of action from that alleged in the petition. Drake v. K. C. Pub. Serv. Co., cited supra; Scovill v. Glasner, cited supra; Kent v. City of Trenton, cited supra; Neal v. 12th & Grand Ave. Bldg. Co., cited supra; Boyd v. St. Louis Brewing Assn., cited supra. (c) The agreement and contract as pleaded by the appellant was champertous, against public policy, void and unenforceable. Ridenbaugh v. Young, 145 Mo. 274; Phelps v. Manecke, 119 Mo.App. 137; Taylor v. Perkins, 171 Mo.App. 246. (d) Cases cited by appellant distinguished. Brandenburger v. Puller, 266 Mo. 534; Cooper v. Cook, 347 Mo. 528, 148 S.W.2d 512; Lortz v. Rose, 346 Mo. 1212, 145 S.W.2d 385; McFall v. Murray, 342 Mo. 737, 117 S.W.2d 330; Drake v. K. C. Pub. Serv. Co., cited supra.
OPINION
On Rehearing.
This suit was instituted by Alva McClellan, plaintiff, against Mary C. Oliver, administratrix of the estate of Amelia Simcoe, deceased, the living brothers and sisters of deceased, and the descendants of deceased brothers and sisters of Amelia Simcoe, deceased. Plaintiff sought a decree declaring her to be the adopted daughter of Amelia Simcoe.
Petition was filed July 31, 1937. Service of process was had on defendants, and the cause was continued from time to time and term to term thereafter until after this court handed down its decision in the case of Smith v. Oliver, 157 S.W.2d 558. On March 5, 1942, Willard Smith filed his motion to be made a party defendant, which motion was allowed. Thereafter, plaintiff filed amended petition and respondents filed motion to strike certain portions thereof, which motion was, by the court sustained. Defendant Smith filed answer, it being a general denial. Thereafter, plaintiff filed reply to answer of Smith. The court sustained motion to strike plaintiff's reply. Thereafter plaintiff filed motion for judgment, which motion was stricken. On June 12, 1942, the case went to trial and, after all evidence had been heard, the court found the issues against plaintiff and entered a decree accordingly. Plaintiff appeals.
A proper understanding and disposition of all of the issues here presented requires a rather full statement and discussion of the history of this litigation, of the pleadings, and of the facts developed in evidence.
Plaintiff, before her marriage, was Alva Smith, and is a sister of Willard Smith. Their mother died when Willard was less than two years of age. Shortly thereafter their father placed plaintiff with his sister, who was the mother of Mrs. Simcoe, and placed Willard with Mrs. Simcoe. About a year later, when plaintiff was approximately twelve years of age, she was taken into the home of Mr. and Mrs. Simcoe, both now deceased. Both Willard and plaintiff remained in the Simcoe home until they were fully grown and were married. Neither was formally adopted. In 1936 Mrs. Simcoe died intestate and without having borne any children. Her estate was of a net value in excess of $ 8000. Both plaintiff and her brother filed suit against the administrator of the estate, and against the brothers and sisters, and the descendants of deceased brothers and sisters, of Mrs. Simcoe, wherein they sought decrees of adoption.
Plaintiff, in her petition, pleaded:
"Plaintiff further states that when she was an infant about ten years of age, about the 15th day of December, 1892, the said Amelia Simcoe took plaintiff from her parents and from those having charge, care, custody and control of plaintiff, and took plaintiff into her household, promising to the parents of plaintiff and those having her charge and control that she would take plaintiff as her child, adopt her, make her her heir and in all matters and things treat her as her own and natural child; that upon such promises and upon said agreement plaintiff was given to the said Amelia Simcoe to be adopted by her."
She also pleaded that she lived in the Simcoe home until she was married and that she was encouraged to believe that she was an adopted daughter and was so held out to the world by Mrs Simcoe; and that plaintiff rendered to Mrs. Simcoe the affection and services of a daughter throughout her life. She prayed the court to enter its decree declaring plaintiff to be...
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