Darrow v. Geisen, 15273.

Citation102 Ind.App. 14,200 N.E. 711
Decision Date30 March 1936
Docket NumberNo. 15273.,15273.
PartiesDARROW v. GEISEN.
CourtCourt of Appeals of Indiana

OPINION TEXT STARTS HERE

Appeal from La Porte Circuit Court; Alfred J. Link, Judge.

Action by Lemuel Darrow, guardian of Bernard Knaack, against John Geisen, wherein defendant filed a cross-complaint. From a judgment for defendant on his cross-complaint, plaintiff appeals.

Reversed, with directions.

Earl Rowley and C. V. Shields, both of La Porte, for appellant.

M. E. Leliter, of La Porte, for appellee.

KIME, Presiding Judge.

This was an action by the appellant guardian, on behalf of his ward, to quiet title to certain real estate by a complaint in one paragraph. This was answered by a general denial and a paragraph of cross-complaint asking that the appellee's title be quieted to the same real estate. Appellant filed a general denial to this cross-complaint. These issues were tried by a jury, who returned a verdict in favor of the appellee on his cross-complaint. Judgment was rendered in favor of the appellee that he was the owner of the real estate in question; that appellant's claim was without right and unfounded; and that the appellee's title be quieted. Appellant filed a motion for a new trial which was overruled, and that action was assigned as error here. The grounds of the motion discussed are that the verdict was not sustained by sufficient evidence; that it was contrary to law and error of the court in giving and refusing to give certain instructions.

The undisputed evidence was that Peter Geisen, at his death, left a will devising certain real estate to his son, Peter A. for life; then to his issue if there be such; and in the event there be no such issue, then to the other children of Peter surviving at Peter A.'s death. At the death of Peter A. there was only one surviving child of Peter, and that was the appellee here, John Geisen.

Anna Szczechowiak, who went by the name of Anna Parker, married Peter A. Geisen on January 27, 1913. On the 28th day of May, 1914, she filed suit against him for separate maintenance. About one week or ten days later they discontinued living together under the same roof. A decree of divorce was rendered in November, 1914, on a cross-complaint of the husband. On December 21, 1914, Anna Geisen was married to John Knaack, and on March 28, 1915, a child was born. This child is the ward of the appellant guardian here.

[1][2] While Anna was the wife of Peter A. this child was conceived. There is no question as to said Peter A.'s legitimate access; in fact, Anna testified positively, and she is not disputed, that they had sexual intercourse on July 4, 1914. There is no evidence as to Peter A.'s impotency, and until it is proven otherwise potency is presumed. Children conceived during lawful wedlock, where impotency is not established and the husband had intercourse with the wife within the normal period of gestation, are presumed to be the lawful issue of that union for purposes of inheritance.

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