Craven v. Selway

• Decision Date: 14 February 1933
• Docket Number: No. 41287.,41287.
• Parties: CRAVEN ET AL. v. SELWAY ET AL.
• Court: Iowa Supreme Court

216 Iowa 505

246 N.W. 821

CRAVEN ET AL.

v.SELWAY ET AL.

No. 41287.

Supreme Court of Iowa.

Feb. 14, 1933.

Appeal from District Court, Jasper County; Frank Bechly, Judge.

The plaintiffs, collateral heirs of Clarence W. Craven, deceased, brought this action in equity against the defendants, also collateral heirs of said decedent, to partition 1,500 acres of real estate. Ralph E. Stecher made claim to the property on the theory that he was the illegitimate son of the said Clarence W. Craven. Thereafter the plaintiffs, by amendment to their petition, made Ralph E. Stecher a party to the proceedings and asked that title to the real estate be quieted against this claimant. Likewise the defendants joined with the plaintiffs in asking relief against Ralph E. Stecher. Then Ralph E. Stecher filed a cross-petition claiming the entire estate of Clarence W. Craven on the theory that he was the illegitimate son and sole heir of the decedent. Both the plaintiffs and the defendants joined in an answer to Stecher's cross-petition. Upon the submission of the case to the district court, that tribunal found for the plaintiffs and defendants against Ralph E. Stecher on his claim of heirship, and accordingly partitioned the real estate as prayed in plaintiffs' petition. From the judgment thus entered, Ralph E. Stecher appeals.

Affirmed.Kelly, Shuttleworth & McManus, of Des Moines, and Thomas J. Bray, of Oskaloosa, for appellant.

Cross & Hamill and O. P. Myers, all of Newton, F. V. Morgan, of Kellogg, and Dwight G. McCarty, of Emmetsburg, for appellees.

KINDIG, Chief Justice.

Clarence W. Craven, a resident of Jasper county, died intestate January 30, 1930. At the time of his death, Craven owned the 1,500 acres of real estate involved in this partition proceeding, and other property. He was a single man, never having married, and left surviving only collateral heirs, unless the defendant-appellant, Ralph E. Stecher, is his illegitimate son and direct heir.

On February 5, 1930, the plaintiffs-appellees, as collateral heirs of the decedent, commenced this action in the Jasper county district court to partition the above-named land as against the defendants-appellees, also collateral heirs of the decedent. Thereupon the appellant, having made claim to the real estate on the theory that he was the illegitimate son of Clarence W. Craven, deceased, the plaintiffs-appellees amended their petition making the said Stecher a party to the proceeding, and asking that title in and to the said real estate be quieted in the collateral heirs against him. Then the defendants-appellees joined with the plaintiffs-appellees in the action to quiet title against the appellant. A cross-petition was then filed by the appellant in which he claimed all the property belonging to Clarence W. Craven, deceased. To this cross-petition the appellees fully answered.

It is admitted by the appellant that the appellees are the collateral heirs of Clarence W. Craven, deceased. So, too, it is conceded by the appellant that the appellees are entitled to a partition of the real estate, unless he is the illegitimate son of the decedent. Furthermore, it is conceded by the appellant that the appellees are entitled to the property of Clarence W. Craven, deceased, if he is not the decedent's son.

The district court found that the appellant is not the illegitimate son of Clarence W. Craven, deceased, and that the appellees are the decedent's only heirs. Accordingly title to the real estate was quieted in appellees, and partition thereof allowed as prayed. From the judgment and decree thus entered, the appellant appeals.

I.

At the trial in the district court, the appellant offered in evidence the testimony of many witnesses concerning the declarations of the appellant's mother and Clarence W. Craven regarding the appellant's paternity. Because of the character of the witnesses, the discrepancies in their testimony, and other facts and circumstances, this evidence is of doubtful persuasive value. But, under the circumstances of this record, it is not necessary to pass upon the truthfulness of this testimony. When the appellant was born, his mother was lawfully wedded to, and living with, Joe Stecher. In March, 1891, Joe Stecher and the appellant's mother, then Rosa Lanz, were lawfully married. Joe Stecher, at the time, was living in the neighborhood of Muscatine. Following their marriage, Joe Stecher and appellant's mother lived on a farm two miles north of Kellogg, in Jasper county.

During their married life, Mr. and Mrs. Stecher were hard working farmers, and apparently lived happily together until April, 1922, when Mrs. Stecher died. According to the record, Joe Stecher is still living. It appears, from the foregoing facts, that Rosa and Joe Stecher lived together as husband and wife for approximately thirty-one years. Their marriage relationship was broken, not by discord, but by death.

[1] Not only was the appellant born to Mrs. Stecher while she thus lived and cohabited with her husband, Joe Stecher, but likewise three other children were born to this union. These children, in the order of their birth, were as follows: Mabel Stecher, now Mabel Freese, born January 4, 1893; Barney Stecher, born in 1895; Ralph E. Stecher, the appellant, born May 1, 1899, and Leonard Stecher, born October 14, 1910. The appellant, therefore, is the third child. He was born after his mother had been married to Joe Stecher a little more than eight years. A sister and a brother had been born before him. When the appellant was, as well as when the other children were, born, Joe and Rosa Stecher were living together on the farm as husband and wife. They slept in the same bedroom, and, so far as appears from the record, they lived together as husband and wife. Not only was the appellant born as a child of Rosa Stecher when she and Joe Stecher were husband and wife, but the claimant received the name of Stecher and lived under the roof of Joe and Rosa Stecher, and ate at their table until he became of age and went out into the world for himself. Because the appellant was born when Rosa and Joe Stecher were husband and wife, there is a presumption of law which excludes much of the aforesaid evidence offered. In this case the burden of proof was upon the appellant to establish: First, his illegitimacy (Warren v. Warren, 41 Times L. Rep. 599; Watson v. Richardson et al., 110 Iowa, 673, 80 N. W. 407); and, second, that Clarence W. Craven was his illegitimate father and that such father, during his lifetime, recognized the appellant as his illegitimatechild. Such recognition, if not in writing, must have been general and notorious. Section 12031 of the 1931 Code.

[2] Owing to the fact that the appellant has failed to prove the first fact required of him, it will not be necessary to give consideration to the second proposition. Within the rule before announced, the appellant has not proven his illegitimacy. As before said, there is a presumption involved which the appellant has not overcome by competent testimony. When a child is born in wedlock, the law presumes legitimacy. Wallace v. Wallace, 137 Iowa, 37, 114 N. W. 527, 14 L. R. A. (N. S.) 544, 126 Am. St. Rep. 253, 15 Ann. Cas. 761;In re Estate of Henry, 167 Iowa, 557, 149 N. W. 605;Gilbert et al. v. Ruggles et al., 189 Iowa, 206, 178 N. W. 340;In re Estate of Osborn, 185 Iowa, 1307, 168 N. W. 288;State v. Romaine, 58 Iowa, 46, 11 N. W. 721;Ryke v. Ream, 212 Iowa, 126, 234 N. W. 196;Riley v. State, 187 Wis. 156, 203 N. W. 767.

This rule is founded on decency, morality, and public policy. By that rule, the child is protected in his inheritance and safeguarded against future humiliation and shame. Likewise, under the rule, the family relationship is kept sacred and the peace and harmony thereof preserved. No one, by incompetent evidence, can malign the virtue of the mother, and no one, by such evidence, can interrupt the harmony of the family relationship and undermine the sanctity of the home. Wallace v. Wallace (137 Iowa, 37, 114 N. W. 527, 14 L. R. A. (N. S.) 544, 126 Am. St. Rep. 253, 15 Ann. Cas. 761), supra; Bruner et al. v. Engeles et al., 88 Okl. 277, 213 P. 307;Sergent v. North Cumberland Mfg. Co., 112 Ky. 888, 66 S. W. 1036;Cross v. Cross, 3 Paige (N. Y.) 139, 23 Am. Dec. 778.

[3][4] Such presumption of legitimacy may be rebutted by showing: First, that the husband is impotent; second, that the husband was entirely absent so as to have no access to the mother; third, that the husband was entirely absent at the period during which the child, in the course of nature, must have been begotten; and, fourth, that the husband was present only under circumstances which afford clear and satisfactory proof that there was no sexual relationship between him and his wife. Wallace v. Wallace (137 Iowa, 37, 114 N. W. 527, 14 L. R. A. (N. S.) 544, 126 Am. St. Rep. 253, 15 Ann. Cas. 761), supra; Riley v. State (187 Wis. 156, 203 N. W. 767), supra; Phillips v. State ex rel. Hatchcock, 82 Ind. App. 356, 145 N. E. 895;In re Lewis' Estate, 207 Wis. 155, 240 N. W. 818;Taylor v. Whittier et al., 240 Mass. 514, 138 N. E. 6;Saunders v. Fredette, 84 N. H. 414, 151 A. 820. These propositions must be established by clear, satisfactory, convincing, and competent evidence.

[5] Under the record in the case at bar, there is nothing to indicate that Joe Stecher was impotent. As a matter of fact, the contrary appears. At least three children, who are a sister and two brothers of the appellant, are the issue of Joe Stecher. Obviously he was not impotent when he begot the two older children. Neither was he impotent when he begot the fourth child. There is no competent evidence in the record to indicate Joe Stecher's impotency at the time the appellant was begotten. Consequently, so far as the impotency of Jeo Stecher is concerned, the appellant has not made out a case.

[6] It remains to be seen, then, whether appellant has proven his illegitimacy under the...