Alston v. Alston

• Decision Date: 14 May 1901
• Citation: 86 N.W. 55,114 Iowa 29
• Parties: ALSTON ET AL. v. ALSTON ET AL.
• Court: Iowa Supreme Court

114 Iowa 29

86 N.W. 55

ALSTON ET AL.

v.ALSTON ET AL.

Supreme Court of Iowa.

May 14, 1901.

Appeal from district court, Jefferson county; F. W. Eichelberger, Judge.

Action for partition. Defendants William E. Alston, Mary M. Vote, and Henry C. Alstor are alleged to be heirs of William Alston, who died intestate in 1896, seised in fee of the real estate described in the petition. The plaintiff William D. Alston alleges that he is a natural son of said William Alston, deceased, recognized by him as such during his lifetime, and plaintiff claims, therefore, to be entitled to share equally in the real estate of the father with the three legitimate heirs, and he asks partition accordingly. The joint plaintiff, Margaret A. Alston, is the wife of William D. Alston, and the joint defendant, Anna A. Alston, is the wife of Henry C. Alston, and their interests in the suit are only their inchoate rights of dower. For purposes of reference in the following opinion, William D. Alston will be treated as sole plaintiff, and the three legitimate children of William Alston will be treated as the defendants. Plaintiff's bill was dismissed upon its merits, and he appeals. Reversed.Legget & McKemey and I. D. Jones, for appellant.

Rollin J. Wilson and M. J. McCoid, for appellees.

McCLAIN, J.

1. Appellees have interposed motions to strike appellant's abstract from the files, and to affirm the decree, on the ground that the abstract has no names of attorneys appended thereto, and does not purport to contain all the evidence; and also to strike from the files an amended abstract, in which appellant seeks to cure these alleged errors, and a reply filed at the same time. Appellant's abstract purports on its face to be an abstract of the evidence in this case, and the names of the attorneys for appellant are given in the usual way on the first page. There is no rule requiring that the names of counsel be attached at the end of an abstract, and the motion to strike on this ground must be overruled. It is no longer necessary, in order to secure trial de novo in this court, that the appellant shall formally allege in his abstract that it is an abstract of all the evidence, and that the evidence was preserved in the proper manner. Kirchman v. Coal Co. (Iowa) 84 N. W. 939. Moreover, the alleged defects are cured by the amendment, and, although it and the reply were filed two days after the time required by the rules, we do not strike out, in such cases, on motion, where no prejudice appears to have resulted to the opposite party. The case is fully argued, and there is no reason why it should not be considered on its merits.

2. Appellees insisted in the lower court, and still contend here, that appellant cannot have his right as an heir entitled to inherit by reason of illegitimate parentage and recognition determined in a partition suit, and that he must first establish in some other proceeding the fact of heirship. It is not questioned that one who claims as legitimate heir may bring a suit for partition against other heirs in possession of the real property of the common ancestor, and establishhis right by proof that he is an heir. An illegitimate child, when recognized as required by statute, is an heir in the same sense as a legitimate child. In each case the plaintiff must show his relationship to the ancestor, and, further, the illegitimate must show recognition. “For the purpose of inheritance, an illegitimate child, when recognized, stands on precisely the same footing as if it were legitimate. If the father dies intestate, both inherit, and such right can only be cut off by the will of the father, which is equally effective as to both classes of children.” Milburn v. Milburn, 60 Iowa, 411, 14 N. W. 204. In this case the question was whether the subsequent birth and recognition of an illegitimate child would have the same effect as the subsequent birth of a legitimate child in revoking a will, and it was held that it would. We think the reasoning is fully applicable here. See, also, McGuire v. Brown, 41 Iowa, 650;Johnson v. Bodine, 108 Iowa, 594, 79 N. W. 348;Investment Co. v. Caldwell, 152 U. S. 65, 14 Sup. Ct. 504, 38 L. Ed. 356. We see no reason why plaintiff may not in this proceeding allege and prove, if he can, that he is the illegitimate son of William Alston, and that he has been recognized as required by statute to entitle him to inherit.

3. Prior to the adoption of the Code of 1851, the rule of the common law was in force in this state precluding inheritance by illegitimates from the father under any circumstances, and in that Code provisions similar to those now in force were incorporated, by which illegitimates might inherit from the father when recognized by him as his children, as there specified. These provisions have been substantially in force ever since. Plaintiff was born some years prior to the adoption of the Code of 1851, and some of the evidence relating to recognition refers to acts and conversations of William Alston prior to the adoption of the Code. Appellees insist that evidence of recognition must be strictly limited to acts and conversations subsequent to the time when such recognition would by law entitle the plaintiff, if an illegitimate son, to inherit. For this contention they cite the case of Hartinger v. Ferring (C. C.) 24 Fed. 15, in which the circuit court of the United States for the Northern district of Iowa reached the conclusion contended for; but we think this position is untenable. The legislature, having the right to determine the rules of inheritance in accordance with which the property of persons subsequently dying shall be distributed, may provide as it sees fit with reference to who shall be heirs. There is no vested right to inherit until the death of the ancestor. It may therefore be provided that illegitimate children already born and recognized shall be considered heirs. The recognition contemplated by the statute is not recognition as prospective heir, but recognition as an illegitimate child; and whoever fulfills the conditions of the statute as to the right to inherit, existing at the time of the death of the ancestor, is entitled to inherit under the statute. There is nothing in the language indicating that it was to be applicable to such recognition as should afterwards be made. It describes a class of persons, and declares that persons of that description shall inherit; it does not refer to or create a status. It is prospective in its operation as to the right, but there is nothing to suggest that persons of the class described--that is, illegitimates already recognized--shall not inherit under it. It would be just as reasonable to limit the provisions of the statute to illegitimates afterwards begotten and born as to so limit it to illegitimates afterwards recognized, and it would be just as reasonable in the one case as in the other to argue that to adopt a construction making it applicable to existing illegitimate children would be to give the statute a retrospective effect. But it is not contended by appellees that the statute is to be limited to illegitimates subsequently begotten and born. The cases of Brown v. Bellmarde, 3 Kan. 53, and Stevenson's Heirs v. Sullivant, 5 Wheat. 207, 5 L. Ed. 70, as well as the case of Rice v. Efford, 3 Hen. & M. 225, on which the latter of these two cases is based, all relate to inheritance by illegitimates under a statute passed after the death of the ancestor, and whatever language may have been used apparently supporting the decision in Hartinger v. Ferring, supra, must be regarded as pure dictum. Van Horn v. Van Horn, 107 Iowa, 257, 77 N. W. 846, 45 L. R. A. 93, was a case in which plaintiff, claiming to be an illegitimate born and recognized in New Jersey, sought to establish his right to inherit property in Iowa; and defendant contended that inasmuch as, by the laws of New Jersey, an illegitimate son could not inherit the property of the father, his birth and recognition in New Jersey would not entitle him to inherit under the laws of Iowa; but this court says: “The sole inquiry here is, is he [the plaintiff] entitled to inherit the real estate and personal property situated in this state, under the facts presented in evidence? Our conclusion is that the laws of New Jersey are wholly immaterial to this inquiry.” Certainly there is no more reason for allowing proof of birth and recognition in a state where those facts do not entitle the illegitimate to inherit than for admitting proof of birth and recognition in Iowa prior to the time when the statutes of this state made those facts sufficient to entitle the illegitimate to inherit. We are of the opinion, therefore, that evidence of acts and conversations on the part of William Alston, tending to show recognition by him of plaintiff as his illegitimate child prior to the adoption of the Code of 1851, may be considered.

4. Before discussing, however, the evidence of William Alston's recognition of plaintiff, it is necessary to consider what evidence, if any, there is as to paternity; for the defendants' counsel insist that, even though William Alston supposed plaintiff to be his son, still, if he was not in fact a son, then he could not inherit, and counsel object to much of the evidence with reference to paternity of plaintiff, on the ground that it is mere hearsay, and not admissible. But it is well settled that some evidence which would in general be excluded as hearsay is admissible on the subject of relationship. Prof. Greenleaf states that hearsay in regard to relationship is admitted in cases of pedigree, the principal question in such cases being that of the parentage or descent of the individual, and he says that, “in order to ascertain this fact, it is material to know how he [the person in question] was acknowledged and treated by those who were interested in him or sustained towards him any relations of blood or affinity.” And while he states the...