McIntyre v. Hardesty

• Decision Date: 03 April 1941
• Docket Number: 36668
• Citation: 149 S.W.2d 334,347 Mo. 805
• Parties: Albert Wm. McIntyre, Appellant, v. Clementine Hardesty, Pearl Evans, William Thomas Taylor, Oscar McIntyre, Goldie Tingle Vancil, Mabel Jones Burress, Myrtle Jones Bell Way and Thomas Elwood Hardesty
• Court: Missouri Supreme Court

149 S.W.2d 334

347 Mo. 805

Albert Wm. McIntyre, Appellant, v. Clementine Hardesty, Pearl Evans, William Thomas Taylor, Oscar McIntyre, Goldie Tingle Vancil, Mabel Jones Burress, Myrtle Jones Bell Way and Thomas Elwood Hardesty

No. 36668

Supreme Court of Missouri

April 3, 1941

Appeal from Jasper Circuit Court; Hon. Warren L. White Special Judge.

Affirmed.

F P. Sizer, Kelsey Norman, Alfred K. Lee and Henry Warten for appellant.

The court erred in holding that plaintiff was not entitled to inherit from the grandmother of his adopting father, B. L McIntyre, after holding that plaintiff was the duly adopted son of the said B. L. McIntyre. No mention is made in the will of Tobitha T. Cunningham, deceased, of either B. L. McIntyre, who predeceased the testatrix, or this plaintiff; therefore, under these circumstances, had plaintiff been the natural son of the said B. L. McIntyre there would be no question as to his right to receive his parent's share of her estate; and the same is true as to an adopted child. That the status of plaintiff as an adopted son of B. L. McIntyre was established prior to the enactment of the Missouri Adoption Act of 1917 (R. S. Mo. 1929, sec. 14079 et seq.) conferring the right of inheritance by representation upon adopted children, is no bar to his right to inherit from his adoptive father's grandmother, Tobitha T. Cunningham, dying in 1933 intestate as to him, for the reason that: Rights of descent flow from the legal status of the parties, and when the status is established (as it has been in this case) the law supplies the rules of descent with reference to the situation as it existed at the death of the decedent, Tobitha T. Cunningham.

C. S. Walden for respondents.

The court properly found the issues in favor of the defendant, and correctly held, that upon equitable principles, a status of adoption had been created between plaintiff and his adoptive parent, Bert L. McIntyre, and that this adoption status became fixed on March 20, 1917, and that his rights of inheritance were limited to his adoptive father, Bert L. McIntyre. Plaintiff's third count of his petition, on which the case was tried, does not allege, nor does the proof show that he was ever legally adopted by reason of compliance with either Section 1673, Revised Statutes 1909, or the later Act of 1917. The trial court properly held that under the circumstances in the case, a status of adoption was established between plaintiff and his adoptive father by the acts and conduct of the parties to the unrecorded contract; and that said adoption status was an accomplished fact on March 20, 1917. Benjamin v. Cronan, 93 S.W.2d 975; Taylor v. Coberly, 38 S.W.2d 1062; Hockaday v. Lynn, 200 Mo. 456. Plaintiff was adopted while Section 1673, Revised Statutes 1909, was in full force and effect, and that under the provisions of said adoption statute, plaintiff became an heir of his adopting parent, and not an heir by representation of the estate of Tabitha T. Cunningham, the grandmother of his adoptive father, Bert L. McIntyre.

Cooley, C. Westhues and Bohling, CC., concur.

OPINION

COOLEY

By this action plaintiff sought to be decreed the adopted son of Bert L. McIntyre, and as such the great-grandson and an heir of Tabitha T. Cunningham deceased, and entitled to share in her estate. (Mrs. Cunningham is called interchangeably in the record Tobitha and Tabitha.) The circuit court denied the relief prayed and plaintiff has appealed.

Mrs. Cunningham died testate in 1933, at an advanced age. She had given birth to five children, four daughters and a son. The son disappeared many years ago and has not since been heard of. Two of the daughters predeceased their mother, leaving descendants. The other two survive. One of the deceased daughters, Jennie Taylor McIntyre, left a son, Bert L. McIntyre, who it is claimed, agreed to adopt this plaintiff, wherefore it is claimed the plaintiff should be decreed to be his son and a great-grandson and heir of Mrs. Cunningham, said Bert L. having been her grandson. Bert L. McIntyre died in 1921.

In 1926 Mrs. Cunningham made a will disposing of her estate, which was considerable and consisted of both real and personal property. Two of her daughters were then dead and her grandson, Bert L. McIntyre, was dead. Later, two codicils, not here material, were added. By her will Mrs. Cunningham made provision for her various descendants, but did not in either the original will or the codicils mention appellant, who therefore contends he is a pretermitted heir. The will, with its codicils, was duly probated.

Plaintiff was born about March 12, 1917. He, then called Howard Henry, was almost immediately, or at lease very soon, committed to an institution called the Childrens' Home, operated by a board called the Childrens' Home Board, at Joplin, Missouri Bert L. McIntyre and his wife, Alma, were childless and wanted to adopt a child. The Board above mentioned got in touch with them, resulting that plaintiff was given to them. His name was to be and was changed to Albert William McIntyre. A deed of adoption was made out whereby the Board relinquished plaintiff to the McIntyres who, by said deed, agreed to adopt and said they did adopt plaintiff as their child and heir "as fully as they are by law empowered to do" and agreed to support, educate and maintain him and bestow upon him "the care and treatment due from parent to child." That document was signed and acknowledged by Mrs. McIntyre on March 17, 1917, and by Bert L. McIntyre on March 20, 1917. It was never recorded, as the then law, Sec. 1671, R. S. 1909, required. Plaintiff's foster mother (now Mrs. Ferguson) testified that a Mr. Meade, of the Childrens' Home Board, with whom she and her then husband, Bert L. McIntyre, negotiated for the adoption, advised them not to record it because there was then pending in the Missouri General Assembly a proposed adoption law that would enlarge the privileges of an adopted child. The "proposed" law was later enacted in 1917, and will be referred to hereinafter.

Plaintiff was taken to the home of the McIntyres, where he thereafter lived as a member of the family, conducting himself as a dutiful son, being treated and held out by them as their son, known by the name of Albert William McIntyre, and it is said that he did not know till shortly before this suit was filed that he was not the natural son of said foster parents. Under all the evidence there can be no doubt that, as between plaintiff and Bert L. McIntyre, the former would be entitled to a decree entitling him to take from said Bert L. McIntyre. [The trial court so found. We shall refer to that later.] For the reasons indicated it is not necessary to detail the evidence tending to show the relations between plaintiff and his foster parents.

The learned trial court found that plaintiff is the adopted son of Bert L. McIntyre and that the adoption was an accomplished fact on March 17, 1917; (it is immaterial whether the date be taken as March 17th, when the verbal agreement was made and when Mrs. McIntyre signed the "adoption deed," or March 20th, when Bert L. McIntyre signed it); that by the law then in force plaintiff was the heir of Bert L. McIntyre and entitled to inherit from him, but not entitled to inherit from his ancestors; that the "enlarged" rights of inheritance created by the 1917 law were not conferred on adopted persons as a class but are limited to those who are thereafter adopted under said Act of 1917; that plaintiff was never adopted in accordance with the Act of 1917 by decree of a Juvenile Court. [The latter is a conceded fact.] The court therefore adjudged that plaintiff is not entitled to inherit from the ancestress (Mrs. Cunningham) of Bert L. McIntyre, and adjudged against the plaintiff. Neither side complains, or under the evidence can complain, of the court's finding that plaintiff would be entitled to take, as an adopted child, from his foster father, Bert L. McIntyre. The question is, can he take as an heir of his foster father's grandmother, Mrs. Cunningham? Because, if he is entitled to inherit from her it must be as her heir. Bert L. McIntyre was dead, not only when the testatrix died but when her will was made.

It seems to us the question narrows to this: Plaintiff does not contend, cannot contend, that there was ever a statutory adoption. Under the "old law," R. S. 1909, secs. 1671, 1673, a deed of adoption had to be recorded, and this one was not recorded. But, though not recorded, it could be evidence of an agreement to adopt which a court of equity may enforce. [See Ahern v. Matthews, 337 Mo. 362, 85 S.W.2d 377.] But, assuming that, as the trial court found, plaintiff was entitled to be decreed to occupy the status of adopted son of Bert L. McIntyre and to inherit from him, does that make him an heir of said McIntyre's ancestors or collateral kin? This question was fully discussed in a learned opinion by Lamm, J., in Hockaday v. Lynn, 200 Mo. 456, 98 S.W. 585, wherein it was held that an adopted child -- adopted under what we have called the "old law," -- while entitled to inherit from his adopting parent, did not thus become an heir of the adopter's collateral kin. And such is the necessary construction of the "old law." [See Sec. 1673, R. S. 1909.] So, even if plaintiff had been actually adopted in statutory manner under said "old law," as he was not, since the "deed of adoption" was never recorded -- see Sections 1671, 1673, R. S. 1909, Ahern v. Matthews, supra -- he could not thus have become an heir of the adopter's ancestors or collateral kin. [Hockaday v. Lynn, supra.] Therefore, even though, as the trial court found, he was entitled to be decreed an adopted son of Bert L. McIntyre and entitled to "inherit" or to take from ...