Benson's Estate, Matter of, 48530

• Decision Date: 07 December 1976
• Docket Number: No. 48530,48530
• Citation: 558 P.2d 384
• Parties: In the Matter of the ESTATE of John H. BENSON, Deceased. Michael BENSON, Appellant, v. Gwen ROBERSON, Appellee.
• Court: Oklahoma Supreme Court

Page 384

558 P.2d 384

In the Matter of the ESTATE of John H. BENSON, Deceased.

Michael BENSON, Appellant, v. Gwen ROBERSON, Appellee.

No. 48530.

Supreme Court of Oklahoma.

Dec. 7, 1976.

Rehearing Denied Jan. 18, 1977.

Appeal from the District Court of Oklahoma County; William C. Kessler, judge.

Appeal from an order admitting will to probate, thus excluding Appellant from inheritance, on the ground that decedent did not voluntarily acknowledge paternity of Appellant in writing before a competent witness or otherwise legitimize said child through his acts, conduct, or words. AFFIRMED.

Thomas E. Baker, Shutler, Baker, Simpson & Logsdon, Kingfisher, for appellant.

Don J. Timberlake, Lamun, Mock, Featherly, Baer & Timberlake, Oklahoma City, for appellee.

BARNES, Justice.

This is an appeal by Appellant, John Michael Benson, a minor, by and through his next best friend and legal guardian, Maxine House, from an order of the Trial Court sustaining a demurrer to Appellant's Objection to Distribution of the Estate of John H. Benson. The Court ordered said estate distributed in accordance with the will, thus excluding the child of the deceased. The Trial Court further held John Michael Benson a bastard child and that the decedent did not voluntarily acknowledge paternity of Appellant in writing before a competent witness or otherwise legitimize said child through his acts, conduct, or words.

The pertinent facts are as hereinafter related. John H. Benson died testate on October 3, 1972, leaving Gwen G. Winters, now Roberson, Appellee, as his sole devisee and legatee. The Last Will and Testament of John H. Benson, deceased, was duly admitted to probate on October 24, 1972.

During his lifetime, John H. Benson, while single and approximately twenty-four years of age, was the defendant in a paternity suit filed in the District Court of Kingfisher County, Oklahoma, on July 1, 1959, by one Barbara Buie. Following a jury verdict finding defendant guilty as charged, the Court decreed the defendant to be the 'father of John Michael Benson, the bastard child of Barbara Buie.' On February 10, 1960, the County Court of Kingfisher County ordered John H. Benson to support the male child born to Barbara Buie, by making payments of $100.00 per month. In that proceeding, John H. Benson denied paternity of John Michael Benson, Appellant herein, but made support payments for several years pursuant to the Court's order. Thereafter, a Motion to Modify was filed and a lump sum settlement of $5,500.00 was entered into, relieving him of further support of John Michael Benson.

It was stipulated in the instant case that were attorney Harry C. Evans to testify he would state he prosecuted the aforementioned paternity complaint before a jury as County Attorney of Kingfisher County and was subsequently retained as private counsel by John Benson for the purpose of negotiating a settlement of all claims of John Michael Benson, the bastard child, and his natural mother, Barbara Buie. It was further stipulated Evans would testify that decedent never acknowledged paternity during the prosecution of the bastardy complaint, during the settlement negotiations, nor at any time thereafter.

Following the paternity suit, Appellant remained in the custody of his natural mother until her death in 1971 and subsequently was supported by his maternal aunt in California.

While John H. Benson's estate in itself consisted of assets of a relatively nominal amount, he was the sole beneficiary of his mother's estate, Ruth Hildreth Benson. This estate consists of numerous mineral interests in several Oklahoma Counties, a 100-acre farm in Kingfisher County, Oklahoma, approximately $22,000.00 cash, and certain stocks and personal properties.

After the death of John H. Benson became known, Appellant's maternal grandmother was appointed his guardian in Oklahoma and filed an Objection to Final Account and Distribution of Assets of John H. Benson. From an adverse ruling therein, Appellant brings this appeal.

Appellant first contends that he is the child and sole heir of John H. Benson and therefore entitled to the distribution of the entire estate. Appellant relies in part on the deposition testimony of John H. Benson and Ruby Taylor. Ruby Taylor, the maid who worked for Ruth Hildreth Benson for twenty years and knew her son, John H. Benson, from the time he was a small boy, testified:

'Q. Did John ever talk to you about that baby, Mrs. Taylor?

'A. He said, yes, it was his baby, he was pretty darn sure it was his baby.'

Her testimony further reflects that Barbara Buie stayed in Ruth Hildreth Benson's house for several months before the baby was born. Deposition testimony of John H. Benson reflects that in 1957 he had sexual relations with Barbara Buie several times a week when they were dating steadily.

Appellant urges the applicability of 84 O.S.1971, § 132, which provides:

'When any testator omits to provide in his will for any of his children, or for the issue of any deceased child unless it appears that such omission was intentional, such child, or the issue of such child, must have the same share in the estate of the testator, as if he had died intestate, and succeeds thereto as provided in the preceding section.'

We find from our review that the will of John H. Benson exhibits nowhere an intention to omit Appellant herein.

However, other statutes pertinent to this case are 84 O.S.1971, § 215:

'Every illegitimate child is an heir of the person who in writing, signed in the presence of a competent witness, acknowledges himself to be the father of such child; . . . and inherits his . . . estate, . . . in the same manner as if he had been born in lawful wedlock; . . .'

and 10 O.S.1971, § 55:

'The father of an illegitimate child by publicly acknowledging it as his own, receiving it as such, with the consent of his wife, if he is married, into his family, and otherwise treating it as if it were a legitimate child, thereby adopts it as such, and such child is thereupon deemed for all purposes legitimate from the time of its birth. The status thus created is that of a child adopted by regular procedure of court. . . .'

For legitimation. Appellant relies primarily on the case of In the Matter of the Estate of Allison LaSarge, deceased, 526 P.2d 930 (Okl.1974), in which this Court said:

'The policy of the law is to favor legitimation of children born out of wedlock. The severity with which the law formerly dealt with illegitimate children has been tempered both by statute and judicial construction. The effect of legitimating a child under 10 O.S.1971 § 55 is to make such child legitimate from birth and to give the child the right of inheritance.'

In the LaSarge case, supra, the father of the child had a paternity case filed against him and entered a guilty plea thereto. The Court held the illegitimate child did inherit from his father by virtue of the father's having complied with 10 O.S.1971 § 55, supra. The Court referred to the fact there was a public record of the paternity proceedings and said therein:

'It would seem that the plea of guilty was sufficient to constitute public acknowledgment. It is a matter of public record regardless of the other actions of decedent.'

Appellant suggests that the deposition testimony of John H. Benson, the maid, Ruby Taylor, and the appearance docket indicating support payments made by Appellant, including the final lump sum payment of $5,500.00, constitutes public acknowledgment by John H. Benson that Michael Benson was his child. He relies on the following language from the LaSarge case, supra:

'There is no express definition in the statute of the phrase 'public acknowledgment', but the phrase has been generally employed in the ordinary or commonly understood sense of disclosing facts of paternity without concealment to relatives, friends, acquaintances, and other third persons. It is generally held that the recognition need not be universal or so general and public as to have been known by all. Trier v. Singmaster, 184 Iowa 307, 167 N.W. 538, 541 (1918).'

While Appellant argues that the appearance docket and trial docket journal are public records and may constitute a public acknowledgment, the record reflects Appellant has wholly failed to produce an instrument in writing acknowledging paternity which would invoke the provisions of 84 O.S.1971 § 215, supra.

Furthermore, after carefully reviewing the LaSarge case, supra, we find it to be distinguishable from the case at bar in that there a plea of guilty was entered to a bastardy complaint, while in the instant case John H. Benson entered a plea of not guilty. Moreover, the putative father in LaSarge legitimized the child by his conduct publicly and by his actions, including acknowledgment of paternity to the Court, a priest, various relatives, and merchants in the town.

10 O.S.1971, § 55 was construed by this Court in Thompson v. Thompson, 177 Okl. 437, 60 P.2d 615 (Okl.1936), where we said in the first and second syllabi:

'I. To establish claim of legitimation, claimant must establish illegitimacy, paternity, that father publicly acknowledged claimant to be his children during minority, reception into father's family with wife's consent given with knowledge of illegitimacy, and treatment of claimant as legitimate.

'2. The burden of proof to establish all elements of legitimation is upon the claimant.'

In Hunter v. Hunter, 206 Okl. 573, 244 P.2d 1140, we alluded to the sufficiency of evidence of public acknowledgments:

'While there is some evidence that he acknowledged to certain individuals that he was the father of the child, yet he never did so publicly. Also the appellant's mother, and others, gave evidence of such public acknowledgment, and acceptance into her home while deceased purportedly lived with her in the alleged common-law marital relationship but such evidence, if true, was insufficient.'

Appellant also contends the payments of support in...