Betts v. Gilbert

• Decision Date: 04 March 1939
• Docket Number: 34174.
• Parties: BETTS v. GILBERT.
• Court: Kansas Supreme Court

87 P.2d 637

149 Kan. 431

BETTS v. GILBERT.

No. 34174.

Supreme Court of Kansas

March 4, 1939

Syllabus by the Court.

Whether one who sought to be declared an heir was the illegitimate child of intestate's son and had been recognized by son as his child, and whether recognition had been general and notorious, were questions of fact for trial court. Gen.St.1935, 22-122.

In action to be declared an heir as illegitimate child of intestate's deceased son, alleged child was not estopped by her answer and cross-petition in an independent partition action wherein she claimed to be the heir of another, nor by judgment therein that she was the posthumous daughter of another, but admissions and judgment were admissible for what they were worth. Gen.St.1935, 22-122.

A new trial on ground of newly discovered evidence was properly denied in absence of showing that with reasonable diligence it could not have been produced at trial Gen.St.1935 60-3001.

1. Whether a person is the illegitimate child of the putative father and has been recognized by him as his child and whether the recognition has been general and notorious are questions of fact for the trial court.

2. In an action by a plaintiff to be declared an heir of defendant's intestate by reason of being an illegitimate child of a deceased son of the intestate, admissions made in the pleadings and the findings in a judgment in a previous action, wherein the present plaintiff sought relief on the ground she was the child of a different person, do not estop plaintiff in the present action, nor are such admissions and findings conclusive against her, but they are admissible for what they are worth.

3. A new trial on the ground of newly discovered evidence is properly denied when there is no showing that, with reasonable diligence, it could not have been discovered and produced at the trial.

Appeal from District Court, Seward County; Frank O. Rindom, Judge.

Action by Vera Mae Betts against Elizabeth Gilbert, administratrix of the estate of Samuel Gilbert, Sr., deceased, to be declared an heir of deceased. Judgment for defendant, and plaintiff appeals. Affirmed.

G. W Sawyer, of Liberal, and E. F. Ireland, of Hooker, Okl., for appellant.

G. L Light and Auburn G. Light, both of Liberal, for appellee.

THIELE Justice.

Vera Mae Betts filed an application in the probate court to be declared an heir of Samuel Gilbert, Sr., deceased. That court denied her application and she appealed to the district court and, after a hearing there, her application was again denied and she appeals to this court.

Samuel Gilbert, Sr., a resident of Seward county, died intestate April 16, 1935, leaving as one of his heirs his son Melbourne Samuel Gilbert, who seems to have been known as Samuel Gilbert, Jr. The son died December 20, 1937. In connection with the settlement of the father's estate, Vera Mae Betts filed an application which is summarized: Applicant was born August 12, 1912; her mother was Alsinda May Greathouse the wife of Amos Greathouse who died October 17, 1911; that her father was Samuel Gilbert, Jr., who was an heir of his father, Samuel Gilbert, Sr.; that she was entitled to be adjudged as sole heir of her father, Samuel Gilbert, Jr., and an heir of Samuel Gilbert, Sr.; that during her childhood she was known as Vera Mae Gilbert; that when a small child she was taken by her father and his wife and lived with them until her marriage on January 4, 1928; that Samuel Gilbert, Jr., recognized and acknowledged her as his child, maintained and educated her and supported her until her marriage, and that it was generally and notoriously known in the community that she was his child. After a full hearing in the district court, her application was denied. In her appeal here, four questions are presented: 1. The trial court erred in the admission of certain evidence. 2. The judgment is contrary to the evidence. 3. The judgment is contrary to law, and 4. The trial court erred in denying the motion for a new trial. It may be observed that however presented, the real question is the right of an illegitimate child to inherit from its father and how that right may be established.

Our statute provides that an illegitimate child inherits from its mother. The next following section, G.S.1935, 22-122, is as follows: "They shall also inherit from the father whenever they have been recognized by him as his children; but such recognition must have been general and notorious, or else in writing."

In this case, there is no claim that the putative or claimed father ever in writing acknowledged his paternity. The question is whether she was his child and he ever recognized her as his child, the recognition being general and notorious. Whether there had been such recognition was a question of fact for the trial court. See McLean v. McLean, 92 Kan. 326, 140 P. 847; Arndt v. Arndt, 101 Kan. 497, 167 P. 1055; Brooks v. Fellows, 106 Kan. 102, 186 P. 985; Weber v. Gardner, 110 Kan. 295, 203 P. 705, and the cases cited therein.

The putative father was generally referred to by the witnesses as Sam Gilbert or as Gilbert and the names are so used hereafter. Appellant's evidence in part consisted of her birth certificate showing she was born August 12, 1912, that she was illegitimate; that her father was unknown, and that her mother was married to a man named Greathouse; also the certificate of death of Greathouse showing he died October 17, 1911, aged 82 years plus; and also marriage certificate of herself and E. D. Betts. In addition, the following was shown. A doctor testified with reference to the period of gestation as being nine months. Mae Skinner testified she was married to and lived with Sam Gilbert as husband and wife during November, 1911; that Gilbert was gone for three days during November and told her he was caught in a snow storm and was forced to stay at the Greathouse place. About the time applicant was born, he told witness he would have to support the child, and later told her he wanted his child with them, that its mother was not a fit person to raise it; in 1914 or 1915 they got the child and took it home with them and the child continued to live with witness after her divorce from Gilbert and until the child was married; that the reason she took the child was: "The law at Hugoton came after him and he said he would stay in jail or die before he would pay her mother alimony." On cross-examination, it appeared she did not know much about the matter. In this connection, it may be noted there was no testimony there were any legal proceedings of any kind against Sam Gilbert in respect to the appellant, her parentage, her support, etc. She also testified that on certain occasions Gilbert inquired about the child saying: "How is my baby?" "Take good care of my baby." She never told the elder Mr. and Mrs. Gilbert that Sam was the father of Vera Mae, as she thought they knew it. A former school teacher stated Vera Mae went to school to her, she never suspected her parentage would be questioned; the child was known as Vera Gilbert. A former schoolmate testified she went to school with appellant and had been in the Gilbert home and they treated her as their own child and that Sam referred to her as "my Babe", and that she was generally known as Vera Mae Gilbert. It was stipulated certain other persons would testify to the same effect. Louis Shinn, as shown in appellant's abstract, testified that Sam Gilbert had been at his shop with Vera Mae and said she was his girl. As shown in the counter abstract, the question and answer were:

"Q. Did you ever hear him (meaning Melbourne Samuel Gilbert) make any reference to Vera Mae? A. Yes, I have; not any more than she was an adopted child, but not

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