Sharkey v. McDermott

• Decision Date: 17 June 1884
• Citation: 16 Mo.App. 80
• Parties: JULIA SHARKEY, Appellant, v. THOMAS MCDERMOTT, ADMINISTRATOR, Respondent.
• Court: Missouri Court of Appeals

16 Mo.App. 80

JULIA SHARKEY, Appellant,

v.THOMAS MCDERMOTT, ADMINISTRATOR, Respondent.

St. Louis Court of Appeals, Missouri.

Jun. 17, 1884.

APPEAL from the St. Louis Circuit Court, BARCLAY, J.

Affirmed.

M. F. TAYLOR and F. M. ESTES, for the appellant: There may be an adoption by parol.-- Hill v. Goumel, 1 Beav. 541; 53 Iowa, 146; 25 Ga. 612. An intended contract, ineffectual as such by reason of some formal omission required by law, may generate an estoppel when a manifest fraud would result from treating the whole transaction as wanting in validity.--Big. on Estop. 489-492; Dukes v. Spangler, 35 Ohio, 126; Jeffers v. Philo, 35 Ohio, 173; Sutton v. Hayden, 62 Mo. 101; Gupton v. Gupton, 47 Mo. 37. The defendants being privies of Catherine McLaughlin are estopped to deny that plaintiff was legally adopted.-- Van Dyne v. Vreeland, 3 Stockt. 370; Van Dyne v. Vreeland, 12 N. J. Eq. 142.

BROADHEAD & HAEUSSLER and C. V. SCOTT, for the respondent: Adoption must be by formal deed.--Rev. Stats., sects. 559-601. Courts of equity can not dispense with the regulations prescribed by statute; otherwise equity would, in effect, defeat the legislative enactment.--Story's Eq. Pl., sects. 96-170; Long v. Hewitt, 44 Iowa, 363; Houck v. Bates Co., 61 Mo. 391. The alleged promise, if made, was the agreement of James McLaughlin solely; Catherine, a married woman, was incapacitated in law to contract in the respect alleged, and any promise by her, as alleged, being void, no ratification was made when discovert.-- Kernan v. Martin, 8 Mo. 698; Musick v. Dodson, 76 Mo. 627. Any right of action plaintiff might have had at the death of James McLaughlin, in 1876, is barred by laches and the statute; when the facts disclose laches the court will refuse relief.-- Kelley v. Hurt, 74 Mo. 561; Godden v. Kemnen, 99 U. S. 211; Sullivan v. Railroad Co., 94 U. S. 807

THOMPSON, J., delivered the opinion of the court.

I. The respondent makes the point at the outset, that there is nothing before the court to consider, because the motion for new trial was not made within four days after the entry of the judgment. No motion for new trial is necessary to raise the question upon which our judgment is invoked, whether the petition states a cause of action, which question is presented by what is termed the record proper. Besides, the bill of exceptions states that the motion for new trial was filed within four days of the judgment; and this, although contradicted by the clerk's minute entries copied into the transcript, is controlling. Bank of North America v. Fletcher, 15 Mo. App. 272.

II. The question for consideration arises upon a demurrer to the following petition:--

“Plaintiff states that Thomas McDermott is the administrator of the estate of Catherine McLaughlin, deceased, duly qualified and now in the discharge of his duties as such; that defendants Margaret and Charles Mileham are husband and wife; that defendants Andrew and Mary Hanson are husband and wife, and defendants Thomas and Annie McDermott are husband and wife, all of said defendants living together as husbands and wives as aforesaid; that the other defendants and this plaintiff are the only heirs at law of the said Catherine McLaughlin, deceased, as well as of her late husband, James McLaughlin.

Plaintiff further states that the said Catherine died heretofore, to wit, on or about the 15th day of January, 1883, leaving a large estate situated in the city of St. Louis, State of Missouri, and consisting of both personalty and realty, which she took under the will of her husband James McLaughlin, deceased; that said Thomas McDermott has in charge such of the personalty as has been discovered, and also is, by order of the St. Louis probate court, collecting the rents of the real estate. Plaintiff further states that, when she was an infant of about the age of four years, and to wit, on or about the first day of January, 1862, said James and Catherine McLaughlin took this plaintiff from her mother's care, her father having previously deceased, and placed her in their household, promising plaintiff's mother that they would provide and care well for her, and adopt her as their child, and leave her their property at their death. That from that time on until the death of the said James, to wit, about the year 1876, this plaintiff continued to reside in their household, was told by said James and Catherine that she was their legally adopted child, and would inherit their property; that so soon as she was large enough to work she was put out at service in a store in the city of St. Louis, all of her wages being collected and appropriated by said James and Catherine; that she yielded a willing obedience to the said James and Catherine under the impression that she was their legally adopted child; that after the death of said James, and the publication of his will, it was ascertained that he had willed to this plaintiff one-half of his whole estate, but afterwards, by codicil, revoked the bequest, leaving his entire estate to the said Catherine, the property so willed being all that the said Catherine died seized and possessed of; that plaintiff was informed by the said Catherine, and avers the fact to be, that said codicil was written because the said James feared that, becoming independent by reason of said bequest, plaintiff might refuse to longer recognize the relationship of adopted child, and leave the household and society of the said Catherine; that, after the death of said James, plaintiff still continued under the same conditions to live in the household of the said Catherine; that she was by the said Catherine held out to the world as her adopted child, and was by said Catherine repeatedly told that she was her legally adopted child, and would inherit, by reason thereof, all of her property. Plaintiff further states that the defendants were all of age prior to the death of said Catherine, and all resided in the city of St. Louis, Missouri, and were visitors at the house of said Catherine, and had full knowledge of the relationship existing between said Catherine and plaintiff, and were frequently told that plaintiff was her adopted child, and the expectations of plaintiff the defendants acquiesced in and acknowledged. Plaintiff states that, after the death of said James, she still continued in said service in a store in the city of St. Louis aforesaid, the said Catherine receiving and appropriating all of her wages; that she also did all of the sewing and other household labor for said Catherine, and continued to live with and serve said Catherine, discharging for her all of the duties commonly discharged by a child for its parent; that from the time she first began to work in a store, as above mentioned, until the death of said Catherine, she earned as wages the full sum of $5,000, all of which was received and enjoyed by said James and Catherine, and that her services in the household were worth more than the board, lodging and clothing given her; that she rested secure during all of said years in said relationship, yielded all of the affection and obedience due from a child to a parent, at all times supposing from the statements of the said James and Catherine that all legal requirements had been complied with, and that she was their legally adopted child and heir; that of the said sum of money so received from her labor as aforesaid, $2,500 came into the hands of and was appropriated by said Catherine after the death of said James.

Plaintiff further avers that said Catherine was seized with a spasm and died suddenly while plaintiff was engaged in attending to her duties as saleswoman as aforesaid, never speaking after she was taken with said spasm, and that, after her death, it was found that she died wholly intestate, and plaintiff then, for the first time learned upon investigation that no formal statutory deed of adoption was upon record as provided by law, and as to whether any deed was ever formally executed plaintiff has now no means of knowing; that when she was taken as aforesaid into said household she was of too tender an age to require a formal deed, and, after growing older, trusted entirely to the statements of the said James and Catherine that said requirements had been complied with, and did not know anything to the contrary.

Plaintiff further states that the defendants, as heirs at law, and as administrator of said Catherine, now deny her right to said property as the adopted child of said Catherine; deny that the facts and circumstances herein before detailed constitute any reason why she should be held and considered as an adopted child, or that said property, both real and personal, should be turned over to her, and threaten to take and appropriate the estate of said Catherine to themselves.

Plaintiff alleges that, after having contributed the earnings of the best years of her life and a long service at home to the said James and Catherine during their lifetime, under the conviction that she was their adopted child, and that she would receive from them their property at their death, to be now deprived of the fruits of such adoption and the benefits of said estate to which she has herself contributed, and to be set aside and debarred from sharing the estate of said Catherine as if adopted, and to be deprived of the large sum of money received by the said James and Catherine on account of her services, as aforesaid, would be a gross fraud and great hardship, and that, in equity and good conscience she is entitled to be treated in the distribution of said estate, and by the heirs at law of said Catherine, none of whom are her children, as though a formal deed of adoption had been signed and recorded as provided by law.

Wherefore plaintiff prays that a decree be herein entered establishing her right of adoption, and declaring her the heir at law by virtue of the adoption of the said Catherine, and the heir at law by reason of the said premises, and for all other and...