Blair v. Howell

• Decision Date: 21 April 1886
• Citation: 28 N.W. 199,68 Iowa 619
• Parties: BLAIR AND ANOTHER, BY WESCOTT, GUARDIAN, v. HOWELL AND OTHERS.
• Court: Iowa Supreme Court

68 Iowa 619

28 N.W. 199

BLAIR AND ANOTHER, BY WESCOTT, GUARDIAN,

v.HOWELL AND OTHERS.

Supreme Court of Iowa.

April 21, 1886.

Appeal from Johnson circuit court.

This action is brought by two minor children, by their guardian, E. Wescott, against Mary A. Howell and others, who are children and heirs of Jesse Bowen, deceased. The plaintiffs claim that they also are children and heirs of Bowen, and they bring this action to establish their right as such heirs. They also pray for a decree setting aside an alleged deed purporting to be made by the deceased to Mary A. Howell and others of his children. The court granted the plaintiffs the relief prayed, and from the decree the defendants appeal.

BECK and REED, JJ., dissenting.Robinson & Patterson and Geo. G. Wright, for appellants.

M. Cavanagh, S. H. Fairall, and Boal & Jackson, for appellees.

ADAMS, J.

The defendants deny that the plaintiffs are the children of Jesse Bowen, and deny, if they are such, that he ever recognized them as such in such a general and notorious way as to constitute them his heirs, under the statute. It is undisputed that the plaintiffs are the children of one Rosanah Blair, now deceased; that for several years previous to her death she was called Mrs. Blair in the community in which she lived, which was in and near Iowa City; and the defendants' position is that we must assume that she was a married woman, the wife of a man by the name of Blair; and, if she was, that the law presumes that the plaintiffs are the legitimate children of the husband, Blair. Nothing is shown of the history of Rosanah Blair prior to the time when she came to Iowa City. She did not live with any man there, or in that neighborhood, other than Jesse Bowen, and no one there appears to have had any knowledge of any man who claimed to be her husband, or conducted himself as such. The only evidence that she had been married appears to be that she was called Mrs. Blair. But such fact alone does not, in our opinion, constitute legal evidence. It seems probable that she was called Mrs. Blair because she had children when she came to Iowa City, or because she called herself such; but neither of those facts would be sufficient to raise a presumption of marriage. We see nothing, then, in the way of the conclusion that the plaintiffs were born out of wedlock; and the next question to be determined is as to whether Jesse Bowen was their father.

It is shown, beyond controversy, that he was greatly attached to the plaintiffs' mother; that he visited her frequently; assisted her with money; and indulged in such intimacy as to afford the strongest ground for belief that his relation to her was meretricious. We do not deem it necessary to set out the evidence tending to show the alleged paternity of the plaintiffs. It is sufficient to say that it leaves no reasonable doubt upon our minds. That the defendants themselves had little, if any, doubt of it, is indicated by their conduct towards their father during the last years of his life.

The only difficulty, if there is any, arises upon the question as to whether Bowen's recognition of the children was general and notorious, within the meaning of the statute. Code, § 2466. It is proven that Bowen sometimes denied that the plaintiffs were his children. In such denial he certainly did not recognize them. It is claimed, therefore, that his recognition was not general, but, at most, was limited and partial. But everything is limited and partial which is not universal, and “general” is not equivalent to “universal.” Webster says that the word “general” means “extensive, though not universal.” We think that the evidence shows clearly that Bowen's recognition of the plaintiffs was general. They were not only born during his intimacy with the mother, but he visited the mother immediately after her confinement with one of them, and manifested especial interest in the newborn child. He settled her bills, provided for the children, and afterwards took the mother and children into his own family. He became deeply attached to the children, and in all his treatment of them he had precisely the bearing, as far as was observable, of an affectionate father towards his children. He addressed each as “My son,” and spoke of himself to them as “Your papa.”

We are aware, as is urged by defendants, that such words are sometimes used as a mere expression of familarity or affection, and without intention of making any claim or recognition of paternity. But the case before us has this peculiarity: that the plaintiffs had no other ostensible paternity, and Bowen well knew this, and knew that others knew it. It is incredible that any man would treat any other man's illegitimate children as he treated the plaintiffs, nor can we account for a man's treating his own illegitimate children in that way without an intention to recognize them as his children. Now, his general bearing towards them being such as involved a recognition, it follows that the recognition was general. We think, too, that the recognition was notorious. It was open,--not concealed, except upon exceptional occasions. It was not, to be sure, widely known. The family, we infer, lived rather obscurely. It does not appear to have been a subject of much general interest. But Bowen's support of, and care and affection for, the plaintiffs, and general paternal bearing towards them, was observable by all, or nearly all, who came to the house. The notoriety of the recognition appears to have been about as wide as circumstances admitted.

We come next to consider the question as to the deed purporting to be executed by Bowen to certain of his children. It is claimed by the plaintiffs that Bowen did not deliver the deed, and accordingly that it did not take effect. The deed at the time of the trial was in the grantees' possession. It is conceded by the plaintiffs' counsel that such possession was prima facie evidence of delivery by the grantor. But it is insisted that the presumption is of that character that it may be overcome by slight circumstances, and that the proven circumstances are sufficient...