Breidenstein v. Bertram
| Decision Date | 03 July 1906 |
| Citation | 95 S.W. 828,198 Mo. 328 |
| Parties | MOLLIE BREIDENSTEIN v. BERTRAM et al., Appellants |
| Court | Missouri Supreme Court |
Appeal from Scotland Circuit Court. -- Hon. E. R. McKee, Judge.
Affirmed.
Berkheimer & Dawson and Mudd & Pettingill for appellants.
(1) As to right of partition: Hutson v. Hutson, 139 Mo 229; Hays v. McReynolds, 144 Mo. 348; Estes v Nell, 140 Mo. 650; Womack v. Whitmore, 58 Mo 448; Shaw v. Gregoire, 41 Mo. 407. In order to defeat a partition there must be an ouster or facts showing an ouster. It is not necessary, however, that such adverse possession should have continued the statutory period of ten years. Hutson v. Hutson, 139 Mo. 236. In this case the pleadings as well as the evidence show that the issue was, is the plaintiff a grandchild of the testator? The plaintiff affirms and defendants deny. Defendants were holding adversely to plaintiff, claiming that she was not a co-tenant, or grandchild of the testator. She knew this, that is, that they were all holding against her, disputing the relationship of plaintiff to the testator; consequently as to her, this was an ouster and disseizin. It is only in proceedings purely equitable or certain proceedings under the statute that the court is authorized to submit special issues of fact to a jury. Grand Lodge v. Elsner, 26 Mo.App. 108; Ellis v. Kreutzinger, 31 Mo. 432; Weil v. Kume, 49 Mo. 158; Bronson v. Wanzer, 86 Mo. 408; Long v. Long, 141 Mo. 352. There were no equitable questions arising under the facts of this case. Plaintiff did not claim to recover by virtue of any equitable title or right but simply asks the court to partition to her the lands belonging to her as the child and heir of the decedent. The case was purely for the recovery of property, to-wit, her share of the estate of her grandfather, and in such case, and if there is any other remedy than under the statute of wills, it is a suit in equity for distribution or ejectment. R. S. 1899, sec. 691; Ellis v. Kreutzinger, 31 Mo. 432; Moline Plow Co. v. Hartman, 84 Mo. 610; R. S. 1899, sec. 4386; Benoist v. Thomas, 121 Mo. 660; Gunn v. Thurston, 130 Mo. 339; Barkhoefer v. Barkhoefer, 93 Mo.App. 373. (2) Plaintiff's evidence did not prove or show that her mother was a daughter of the testator. All of her witnesses did not in their evidence come within the rule of testimony of pedigree or relationship. None of them ever heard the testator say that she was his child, not even her father (Feltman). While defendant's evidence conclusively shows that he did not regard her as his child, nothing could be stronger than the evidence of witness Lotz. At the time when he was writing the testator's family record, by request of the testator, and he gave him all the names of his children, he did not mention plaintiff's mother, nor at any other time when giving the number of his children did he ever claim that plaintiff's mother was his child. Testator's brother as witness explains that he did not like to marry his first wife because she had a child by her side, but he loved her and brought her to America with him and married her at St. Louis, and of course as an honorable gentleman treated the child well. But this "good treatment of the child" does not make her his child. As to proof of pedigree and relationship: 1 Greenleaf on Evidence (5 Ed.), secs. 103, 104. The hearsay evidence admissible in cases of pedigree is limited to those connected with the family, who are supposed to have known the relationship existing. Stein v. Bowen, 38 U.S. 209; Greenwood v. Spiller, 3 Ill. (2 Scam.) 502; Craufurd v. Blackburn, 17 Md. 49; Jackson v. Jackson, 80 Md. 176; Eastman v. Martin, 19 N.H. 152; Inhabitants v. Fowler, 54 N.H. 197; Chapman v. Chapman, 2 Conn. 347; Nunn v. Mayes, 9 Tex. Civ. App. 366; Carter v. Montgomery, 2 Tenn. Ch. 216; Copes v. Pearce, 7 Gill. 247; Birney v. Hann, 10 Ky. (3 A. K. Marsh) 119; DeHaven v. DeHaven, 77 Ind. 236; Harland v. Eastman, 107 Ill. 535; Froser v. Jeneson, 42 Mich. 206; Byers v. Wallace, 87 Tex. 503; Stump v. Osterhoge, 111 Ill. 82; Haddock v. Railroad, 85 Mass. 298; Dawson v. Maylall, 45 Minn. 408; Pearson v. Pearson, 46 Cal. 609; Derby v. Salem, 30 Vt. 722.
Smoot, Boyd & Smoot for respondent.
(1) Recognition and marriage with the mother is conclusive evidence of paternity. Adger v. Ackerman, 115 F. 124. Our statute was taken from the Virginia statute of 1785. Gates v. Seibert, 157 Mo. 271. There it was borrowed from the civil law by Mr. Jefferson, who prepared the Virginia statute. Davis v. Rowe, 6 Rand. 365; Ives v. McNichols, 59 Ohio St. 514. In the civil law it was known as legitimatio per nominationem filii, or legitimation by recognition. Gaines v. Hennen, 24 How. 553; see note to Stevenson's Heirs v. Sullivan, as reported in 5 L.Ed. 84. The maxim pater est quem nuptiae demonstrant was applied by the civil law to children born after as well as before marriage. The mother is always known, but the father is not. When the father marries the mother and recognizes the child, he makes himself known. The courts have uniformly given so much weight to the declarations of parents, especially of the father, as to the paternity of the child as to make the same practically conclusive. Patterson v. Gaines, 6 How. 550; Gaines v. New Orleans, 6 Wall. 642; Seattle v. Hillenburg, 85 Va. 250; Stegall v. Stegall, 2 Brock. 256; Methudy v. Bohn, 160 Ill. 368. Marriage under such circumstances as that shown by the facts in this case is a strong circumstance, almost equivalent to acknowledgment of paternity. State v. Romaine, 58 Iowa 48; Rhym v. Hoffman, 6 Jones Eq. 335; Rex v. Luff, 8 East 193; State v. Hermann, 13 Iredell 503; Best, Ev., 349; 1 Phil. Ev., 463; 3 Rice, Ev., 857. Recognition consists in the performance of parental duties, care for education, introduction into the household, recognition in social circle, marriage, treatment as a father would treat his child, bearing his name, acknowledgment in his family, etc. Johnson v. Johnson's Admr., 30 Mo. 90. (2) This recognition gives the child the same status as that of a child born in wedlock. Gates v. Seibert, 157 Mo. 254; Pratt v. Pratt, 5 Mo.App. 539. (3) Defendants are estopped to urge in this court a different theory from that on which the case was tried in the lower court. Bowlin v. Creel, 63 Mo.App. 229; Beck v. Wisely, 63 Mo.App. 239; Fell v. Mining Co., 23 Mo.App. 216; Minton v. Steele, 125 Mo. 181; Jennings v. Dunham, 60 Mo.App. 634; Scott v. Nevada, 56 Mo.App. 189; Harper v. Morse, 114 Mo. 317; Querbach v. Arnold, 55 Mo.App. 286.
This cause is in this court by appeal on the part of the defendants from a decree and judgment in partition of the circuit court of Scotland county, Missouri, in favor of the plaintiff. The petition is in the usual and ordinary form, alleging that on the -- day of November, 1902, Conrad Bertram died seized of certain land in Scotland county, Missouri, therein described; that he left surviving him and as his sole heirs at law this plaintiff and the defendants herein; that Elizabeth Bertram is his widow; that three of the defendants are minors; that Conrad Bertram, prior to his death, made and executed his last will and testament, and as to all of said defendants died testate, but as to plaintiff died intestate; that by the terms and provisions of his will he gave all of his lands to his wife, Elizabeth Conrad, for her life, and gave legacies of $ 800 each, when they became of age, or as soon thereafter as convenient, to Adam E. Bertram, Louis E. Bertram, Burley E. Bertram, Irvin A. Bertram and Estella L. Bertram, provided he did not give the same during his lifetime, and if so paid by him in his lifetime it should become a charge against them; that at the death of his wife he gave to William Bertram, Henry Bertram and Fred C. Bertram the sum of $ 100 each, and the remainder of his property at the death of his wife was to go to Jesse A. Bertram, Mary E. Lips, Ben C. Bertram, Adam E. Bertram, Louis E. Bertram, Burley E. Bertram, Irvin A. Bertram and Estella L. Bertram in equal parts. That said will was executed and signed by said Conrad Bertram in June, 1899, and afterwards duly probated in Scotland county, Missouri; that in said will Conrad Bertram wholly failed to mention this plaintiff or to make any provision for her, she at the time of his death being his grandchild and the only child of his oldest daughter. That Conrad Bertram has given by way of advancements to William Bertram, Henry Bertram, Fred C. Bertram, Jesse Bertram, Ben C. Bertram, Mary E. Lips, Adam E. Bertram and Louis E. Bertram each the sum of $ 800, with which they should be charged; that plaintiff is entitled to a one-twelfth interest in all of said lands subject to the widow's rights, and is entitled also to an additional interest that would come to her by reason of the advancements so made to the defendants; that the personal property of said Conrad Bertram is abundantly able to pay all debts owing by said deceased and that said lands are subject to partition. Wherefore she prays that the several interests of the parties be ascertained; that the parties therein alleged be charged with the advancements; that it be put into hotchpot and that they be charged with the same; that the lands be partioned or at least that plaintiff's interest be set off and assigned to her, and for general relief. This petition was filed on December 19, 1902.
On February 2, 1903, the adult defendants filed an answer admitting the death of Conrad Bertram; admitting he died testate and that he was at the time of his death the owner of the lands described in the petition; that defendants are his legatees and devisees, but deny that the plaintiff was the granddaughter of Conrad Bertram,...
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