Weber v. Griffiths

• Decision Date: 16 December 1941
• Docket Number: 37633
• Citation: 159 S.W.2d 670,349 Mo. 145
• Parties: Helen Weber v. John T. Griffiths, Administrator of the Estate of Bessie H. Griffiths, Appellant
• Court: Missouri Supreme Court

159 S.W.2d 670

349 Mo. 145

Helen Weber v. John T. Griffiths, Administrator of the Estate of Bessie H. Griffiths, Appellant

No. 37633

Supreme Court of Missouri

December 16, 1941

Rehearing Denied March 13, 1942.

Appeal from Circuit Court of City of St. Louis; Hon. William B Flynn, Judge.

Reversed and remanded (with directions).

Frank E. Mathews and Frank C. Boland for appellant.

A person adopted prior to the enactment of the present adoption laws of Missouri, and not in accordance with the provisions and requirements thereof, cannot inherit from the kindred of the adoptive parents. McIntyre v. Hardesty, 149 S.W.2d 334; Hockaday v. Lynn, 200 Mo. 456, 98 S.W 585; Rauch v. Metz, 212 S.W. 357; Melek v. Curators of University of Missouri, 213 Mo.App. 572, 250 S.W. 614; Clarkson v. Hatton, 143 Mo. 47, 44 S.W. 761; Reinders v. Kopelman, 94 Mo. 338, 7 S.W. 288.

Max Sigoloff and Julius A. Razovsky for respondent; Sigmund J. Barack on the brief.

(1) Appellant is not entitled to a review by this court because of his failure to comply with Rule 15 of this court relating to the sufficiency of briefs and Rule 13 relating to the sufficiency of the abstract of the record. (a) A cursory examination of appellant's assignments of error reveals that they are too general and too indefinite to present anything for review by this court. State ex rel. Ward v. Trimble, 327 Mo. 773, 39 S.W.2d 372; Clay v. Owen, 338 Mo. 1061, 93 S.W.2d 914; Clark v. Atchison & Eastern Bridge Co., 333 Mo. 721, 62 S.W.2d 1079. (b) Appellant's assignments of error are not carried forward under points and authorities and are therefore insufficient under Rule 15 of this court. Pence v. Kansas City Laundry Serv. Co., 59 S.W.2d l. c. 639. (c) The statement in appellant's brief fails to present all the facts in evidence on behalf of both plaintiff and defendant. Appellant's statement is argumentative and contains conclusions of counsel and matters not supported by the record evidence. Sims v. Hydraulic-Press Brick Co., 19 S.W.2d 294. (b) Appellant's abstract is wholly insufficient because all of the testimony is not included, and, furthermore, portions deemed favorable to appellant are written in question and answer form and those deemed unfavorable to appellant are put in narrative form. Such abstract is insufficient, especially as in this case where appellant challenges the sufficiency of the evidence. The burden is on appellant and not respondent to furnish a proper abstract for the appellate court. Brand v. Cannon, 118 Mo. 594, 24 S.W. 434. (2) The errors now claimed were not presented in appellant's motion for new trial. Therefore nothing was preserved for review by this court. Hoffman v. Hogan, 152 S.W.2d 1046; Greer v. Carpenter, 323 Mo. 878, 19 S.W.2d 1046; Hablutzel v. Home Life Ins. Co. of New York, 332 Mo. 920, 59 S.W.2d 637. (3) The 1917 Act relating to statutory adoption, although in derogation of common law, must, by express legislative command, be liberally construed and not strictly construed, in order to effectuate the true intent and meaning of the General Assembly. R. S. 1939, sec. 645; Cape Girardeau v. Hunze, 314 Mo. 438, 284 S.W. 471. (4) Plaintiff's rights of inheritance are not to be determined as of the date when she was taken into the home of Lena Hawkins and Sylvester Hawkins. They are to be determined by the law in force and effect at the date of the death of her sister Bessie Griffiths (1938), for the following reasons: (a) Plaintiff's cause of action was not based upon an oral contract to adopt made on a particular date, but was based upon an adoption by equitable estoppel. Her filial devotion was of a continuing nature, lasting through the lifetime of her adopting parents and their natural-born child Bessie H. Griffiths. Holloway v. Jones, 246 S.W. 587; Lynn v. Hockaday, 162 Mo. 111, 61 S.W. 885; Taylor v. Coberly, 327 Mo. 940, 38 S.W.2d 1055; Shelp v. Mercantile Trust Co., 322 Mo. 682, 15 S.W.2d 818; Eldred v. Glenn, 52 S.W.2d 35. (b) The right to take property by descent or devise is not a natural but a statutory right, and therefore subject to legislative change at any time before the death of the owner. State ex rel. McClintock v. Guinotte, 275 Mo. 298, 204 S.W. 806; McIntyre v. Hardesty, 149 S.W.2d 334. (c) Rights of inheritance flow from the legal status of the parties. Once this status has been established (as it has in Helen Weber's case) the law supplies the rule of descent to be applied at the death of the intestate. O'Brien v. Ash, 69 S.W. 9, 12; St. Louis Union Trust Co. v. Hill, 336 Mo. 17, 76 S.W.2d 685; Brooks Bank & Trust Co. v. Rorbacher, 118 Conn. 202, 171 A. 655; Dodin v. Dodin, 16 A.D. 43, 44 N.Y.S. 800, affirmed in 162 N.E. 1108; In re Gallaudet's Estate, 238 N.Y.S. 259, 135 Misc. 163; In re Whitcomb's Will, 10 N.Y.S. (2d) 824, 170 Misc. 579; In re Rasmussen's Estate, 114 Minn. 324, 131 N.W. 325, 35 L. R. A. (N. S.) 216; Appeal of Latham, 125 Me. 120, 126 A. 626; 2 C. J. S., pp. 453, 454, and recent cases cited therein. (5) Plaintiff was a niece by blood of Sylvester and Lena Hawkins, plaintiff's mother being the sister of Lena Hawkins. Plaintiff, therefore, was a first cousin by blood to Bessie Griffiths. Even if she could not inherit from kindred or adopting parents in the absence of a statutory adoption, still she could inherit from Bessie Griffiths, a lineal descendant of Lena and Sylvester Hawkins. Black's Law Dictionary (3 Ed., 1933), pp. 885, 108, 1121; 2 C. J. S., p. 1043, sec. 18; Drake v. Drake, 328 Mo. 966, 43 S.W.2d 556. (6) In any event, since John T. Griffiths is claiming through Lena and Sylvester Hawkins, he is estopped to deny that the statutory formalities were not complied with. Taylor v. Coberly, 327 Mo. 940, 38 S.W.2d 1055; Thompson v. Mosley, 344 Mo. 240, 125 S.W.2d 860; Drake v. Drake, 328 Mo. 966, 43 S.W.2d 556. (7) The case of McIntyre v. Hardesty, 149 S.W.2d 334, being in conflict with the following cases, should, if necessary, be overruled by this court: Drake v. Drake, 328 Mo. 966, 43 S.W.2d 556; Shepherd v. Murphy, 332 Mo. 1176, 61 S.W.2d 746.

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

OPINION

PER CURIAM

Equity. Helen Weber instituted this action against John T. Griffiths, the surviving husband and administrator of the estate of Bessie H. Griffiths, who departed this life intestate, seeking a decree adjudging her to be the adopted daughter of Sylvester Hawkins and Lena Hawkins and a sister of Bessie H. Griffiths, the natural-born daughter of said Sylvester and Lena, and a decree adjudging her entitled to share under the laws of descent and distribution as a sister in the estate of said Bessie H. Griffiths, deceased. The decree nisi granted the relief prayed and, operating upon title to real estate inventoried in the estate of said deceased, defendant prosecuted an appeal to this court. We limit our discussion to such of the issues presented as are determinative of this review.

Respondent, in her brief, attacks the motion for new trial and the abstract and the brief of appellant. This is a suit in equity. The motion for new trial included, among others, the assignments set out and held "abundantly sufficient" in Abernathy v. Hampe (Mo. App.), 53 S.W.2d 1090, 1094[9]. They attacked the findings and decree nisi on the ground they were against the evidence, against the weight of the evidence, contrary to law and equity and to the evidence, etc. See also Findley v. Johnson (Mo.), 142 S.W.2d 61, 62[1]; Bank of Brimson v. Graham, 335 Mo. 1196, 1204[3], 76 S.W.2d 376, 380[3, 4]. Appellant's brief, in separate assignments, specifically alleges that, under the evidence adduced, the court erred among other things in finding and decreeing respondent to have been adopted and in finding and decreeing respondent entitled to share as a sister in the estate of Bessie H. Griffiths, deceased, and also repeats, in substance, the above referred to broadly worded assignments of the motion for new trial. They are carried forward in appellant's points, with citation of authority; for instance, a point that one "adopted prior to the enactment of the present adoption laws of Missouri, and not in accordance with the provisions and requirements thereof, cannot inherit from the kindred of the adopted parents." This is sufficient. Consult Bank of Brimson v. Graham, supra; Shaw v. Butler (Mo.), 78 S.W.2d 420, 421[1]. Our rule 13 requires abstracts to set forth so much of the record as is necessary to a complete understanding of the questions presented for decision. The point, quoted supra, made by appellant does not necessarily call for an extended motion for new trial, an extended abstract of the record, an extended statement of the facts or extended assignments of error. However, respondent filed no additional abstract or counter partial abstract indicating the omission of any evidence essential to a determination of the review and respondent's statement contains apt reference to appellant's abstract and informs us that upon this evidence the court rendered its decree. Appellant's abstract was sufficient for respondent's statement of the case. We also find appellant's statement sufficient.

Helen Weber was born in 1897, the natural-born daughter of Frank B. and Anna Callaway, a sister of Lena Hawkins. Helen Callaway Weber's parents died before or when she was about two years of age, and she was reared by Sylvester and Lena Hawkins. Lena Hawkins died in 1918. Sylvester Hawkins died in 1924. Bessie H. Griffiths died in 1938, leaving no descendants, or father or mother or natural-born brother or sister surviving her.

We deem it unnecessary to extend this opinion by a narration of the evidence bearing on the issue of an adoption of respondent by Sylvester and Lena Hawkins. Sylvester and Lena Hawkins had departed...