Mooney v. Mooney

• Decision Date: 29 June 1912
• Citation: 148 S.W. 896
• Parties: MOONEY v. MOONEY et al.
• Court: Missouri Supreme Court

148 S.W. 896

MOONEY v. MOONEY et al.

Supreme Court of Missouri, Division No. 1.

June 29, 1912.

1. BASTARDS (§ 13)—LEGITIMIZATION—STATUTES.

Where testator's parentage of plaintiff was denied, the fact that he recognized and treated him as his own child and maintained and educated him as he did his admitted children did not bring plaintiff within Rev. St. 1909, § 341, providing that if a man having a child or children by a woman shall afterwards marry her, and shall recognize such child or children as his, they shall thereby be legitimated.

2. DESCENT AND DISTRIBUTION (§ 71)—PRETERMITTED CHILD—BURDEN OF PROOF.

Where plaintiff claimed an heir's share in testator's estate as a pretermitted child, the burden was on him to establish that testator was his father.

3. DESCENT AND DISTRIBUTION (§ 71)—PARENTAGE —EVIDENCE.

Evidence held to require a finding that testator was not plaintiff's father.

Appeal from Circuit Court, Saline County; Samuel Davis, Judge.

Ejectment by Christopher Mooney against George Mooney and others. Judgment for plaintiff, and defendants appeal. Reversed and remanded.

This is a suit in ejectment and to determine the interests of the parties and to quiet title, etc., brought by the plaintiff against the defendants to recover the possession of a one-fourth interest in 40 acres of land situate in Saline county, particularly described in the petition. The common source of title was Nicholas Mooney, deceased, and the plaintiff contends that he is a pretermitted heir of said Mooney, claiming to be his son, and the defendants are the children of and devisees under the will of said Mooney, and contend that the plaintiff was not a son of said Mooney. The plaintiff was not mentioned in the will, hence the claim that he is a pretermitted heir. A trial was had before the court and a jury, which resulted in a verdict and judgment in favor of the plaintiff, from which the defendants duly appealed to this court.

The following facts are undisputed: Nicholas Mooney, a young man and a native of Ireland, came to Missouri about the year 1848 or 1849, and located in St. Louis, and subsequently moved to Saline county. At the time of his departure from Ireland, and for several years prior thereto, he had known a young woman by the name of Mary Cooney, whom he left behind.

The plaintiff introduced evidence tending to prove: That Mary Cooney left Ireland, came to Saline county, Mo., and on January 27, 1851, at Marshall, married said Nicholas Mooney. That plaintiff was born June 10th, same year, four months and seventeen days after the marriage was solemnized. That shortly thereafter they moved to a farm near Marshall, the premises in controversy being a part of it, where they continued to reside until their respective deaths, which was but a short time prior to the institution of this suit. A number of other children were born unto that marriage, some of whom are the defendants in this case, and others are dead. The plaintiff was reared by Nicholas and Mary Mooney upon the farm mentioned along with the younger children. To all appearances he was treated in the same manner by Nicholas Mooney that he treated the other children, and was called and known as Christopher Mooney by those who were friends and neighbors of the Mooney family, and was regarded by them as a son of Nicholas Mooney. He was reared with the other children as his brothers and sisters, and all of them regarded and treated each other as such. He was also accorded the same treatment by Nicholas Mooney that he granted to the other children, and was schooled, clothed, and supported in the same manner they were. That he ate at the same table, and had a room and slept with the other boys, and worked upon the farm just as they did, until he was about 23 years of age. He then began working for himself, and shortly thereafter married and continued to live in the same neighborhood, and they frequently visited each other just as families generally do. He also attended church with them, and attended dances with the other children and neighbor boys and girls, and was known by them as one of the Nicholas Mooney children. That he called said Mooney "pa," and his son John always called him "grandpa." That he was never known by any other name than Mooney. That he had never heard of any contention that he was not the son of Nicholas Mooney until after his death, and when he began this suit.

The witness Swisher testified that upon one occasion, when he spoke to Nicholas Mooney of the plaintiff, he said: "Ah! Chris is a good boy. He is my boy." Several witnesses testified that the plaintiff bore a marked and strong resemblance to Nicholas Mooney, especially his nose, eyes, and face generally.

Jeff Dawson, colored, testified that Mary Mooney told him that she and Nicholas Mooney were born in Ireland and were engaged to be married in that country; that Nicholas preceded her to this county less than one year; that shortly after reaching here he sent for her to come over, and that she came in response to that request, and that shortly after she reached Marshall they were married, and after the marriage the plaintiff was born.

The defendants' evidence tended to show: That about two years after Nicholas Mooney left Ireland, and while he was in Saline county, Mary Cooney came over from Ireland and first stopped in St. Louis, at the home of Mrs. Anna K. Adams, who was also from Ireland, and had known Mary there. That, when Mary Cooney arrived at the home of Mrs. Adams, she was in an advanced stage of pregnancy. That after remaining in St. Louis for a short time Mary went to Saline county, and shortly thereafter, within a month, she gave birth to a male child, the plaintiff in this case. That the child was born at the house of Mrs. Duffy, near Marshall. That shortly after the child was born Mary was married to Mooney, with the child in her arms. That the marriage was performed by Father Donnelly, a Catholic priest, and that just before the marriage ceremony was performed Father Donnelly christened the child, and Mary Cooney, its mother, gave the name of the father of the child as Pat Daley, and named the child Chris Daley.

The witnesses Mrs. Bridget Holmes and Pat Duffy testified that they were present at the marriage and witnessed the christening of the child as Chris Daley, Pat Duffy acting as sponsor for the child so christened; that Nicholas Mooney never returned to Ireland after he came to this country.

Mrs. Anna Adams testified as follows: "Q. What is your name, age, place of residence, and where were you born? A. My name is Anna K. Adams. My age is 82 years. I was born in Ireland, and came to this country when a small girl. Q. Where did you live after coming to this country? A. We first came to Saline county, Mo. We then went to St. Louis, Mo., and lived there a long time. Q. What was your mother's name? A. Margaret Duffy. Q. Did you know Nicholas Mooney, late of Saline county, Mo., in his lifetime? A. Yes; I have known him ever since he first came to America. He came to our house in St. Louis when he first came from Ireland. He came direct to our house. He was a young man then. Q. Did you know Mary Cooney, the woman Nicholas Mooney married? A. Yes; I knew her in Ireland where she was a girl, and after she came to America. Q. Which one came to America first, Nicholas Mooney or Mary Cooney? A. Nicholas Mooney came first, about two years before Mary Cooney came. Q. Did you first see Mary Cooney when she first came to this country from Ireland? If so, when and where? A. Yes; she came direct to my house in St. Louis from Ireland, and stayed a short while, and went up to Saline county with my mother, and lived with her until she married Nicholas Mooney. Q. What was Mary Cooney's condition when she first came to your house in St. Louis direct from Ireland? A. She was in delicate condition, and shortly after going to Saline county she gave birth to a male child, and that child is Chris Daley, called Chris Mooney. Q. Did Mary Cooney afterwards marry Nicholas Mooney? A. Yes; they afterwards married in Saline county. Q. Was the boy Chris born before or after the marriage? A. He was born before the marriage at my mother's house. Q. By what name was he called? A. He was called Chris Daley, and went by that name for some time after the marriage of his mother. Q. Did you know who was the father of the boy Chris Daley? A. Mary Cooney, his mother, said at the time the boy was born that his father was named Pat Daley, and that he lived in Ireland. Q. Did you know Pat Daley in Ireland before you came to this country? A. Yes. Q. Was it well known at the time of the marriage of Nicholas Mooney and Mary Mooney that the boy Chris was not Nicholas Mooney's child? A. Yes; there was no contention that he was the child of Nicholas Mooney, and he was known as the child of Pat Daley. His mother so stated, and we believed her. Q. Do you know whether or not Nicholas Mooney went back to Ireland between the time he first came to this country and the time Mary Cooney arrived in this country from Ireland? A. He did not return to Ireland after coming to this country. He remained in St. Louis and Saline county, Mo., from the time of his first arrival until after the birth of the boy Chris and his marriage to Mary Cooney. Q. Mrs. Adams, I will ask you if the boy born to Mary Cooney before her marriage to Nicholas Mooney is the same person as Chris Mooney now claiming to be the child of Nicholas Mooney? A. Yes; he was raised by Nicholas Mooney."

Mrs. Bridget Holmes, of lawful age, being first duly sworn on her oath, testifies as follows on behalf of the defendant: "Q. What is your name? A. Bridget Holmes. Q. Where do you live? A. I live two miles north of Shackleford, in Saline county. Q. How long have you lived there? A. Fifty-two years. Q. I will ask you if you knew Nick Mooney in his lifetime? A. Yes, sir; I did. Q. Did you know the woman whom he married, Mary Cooney? A. Yes, sir. Q. ...