Farley v. Farley

• Decision Date: 11 December 1951
• Docket Number: No. 10343,10343
• Citation: 136 W.Va. 598,68 S.E.2d 353
• Court: West Virginia Supreme Court
• Parties: FARLEY, v. FARLEY et al.

Page 353

68 S.E.2d 353

136 W.Va. 598

FARLEY, v. FARLEY et al.

No. 10343.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 25, 1951.

Decided Dec. 11, 1951.

Syllabus by the Court.

1. Under Code, 42-1-6, a child born out of wedlock is not legitimatized by the subsequent marriage of the mother with the supposed father, in the absence of satisfactory proof or judicial determination that such child is in fact the child of the man.

2. 'In a case tried by a court in lieu of a jury, it is not error in the court to hear illegal testimony, the court being fully competent to discard such evidence.' Pt. 2, Syl., Wells-Stone Mercantile Co. v. Truax, 44 W.Va. 531 [29 S.E. 1006].

Walter L. Ferguson, Will H. Daniel and John W. Daniel, Huntington, for appellant.

Daugherty & Daugherty, Huntington, for appellees.

LOVINS, Judge.

This suit was instituted in the Circuit Court of Cabell County by Fay Pauline Farley, an infant, who sues by Edith Clagg Flora, her next friend, to remove cloud on title to certain real estate, situated in Cabell County, consisting of six lots, title to which she contends is vested in her as the only child and heir at law of Charles Rayburn Farley, who died intestate on September 24, 1947, seized of such land.

Among the defendants are those persons who, but for plaintiff's contention, would be heirs at law of Charles Rayburn Farley, hereinafter referred to as 'decedent', namely, Army Dora Farley, mother; A. Jennings Farley, brother; and Mary Charlotte Linville, Virgie May Farley, Violet Faye Neff, and Grovie Mabel Nott, sisters of decedent. Georgia E. Horsley, a sister, who was deceased at the time of decedent's death, evidently left as an heir at law Oris Horsley, who is also a defendant. Defendants Barb Linville, Berkley C. Neff, and Jewell Farley are apparently joined as spouses of certain of the defendants.

The above named brother and sisters of decedent, their spouses, and defendant Oris Horsley, on November 1, 1944, conveyed all of the land here involved to the defendant Amy Dora Farley. On August 12, 1946, Amy Dora Farley conveyed a portion of such land to Harry L. Ferguson and Violet Ferguson, and on November 16, 1946, she conveyed another portion of such land to Oren Brannen and Helen Frances Brannen. Those grantees are defendants in this suit.

The Fergusons, on the same date they acquired their property, conveyed it to C. W. Freeman, trustee, to secure Amy Dora Farley the payment of a note. At the time of the commencement of this suit, C. W. Freeman was deceased, and Irene Freeman, administratrix of his estate, is joined as a defendant herein.

The plaintiff prayed that all the foregoing conveyances be set aside as a cloud on her title to the property.

Defendant Amy Dora Farley, hereinafter referred to as 'Mrs. Farley', is the sole defendant answering the bill of complaint. Her answer denies that plaintiff is the child of decedent.

The case was considered by the trial chancellor on the bill of complaint, the answer, exhibits and testimony taken ore tenus. From a decree dismissing the bill of complaint plaintiff prosecutes this appeal.

Plaintiff was born in Cabell County on November 20, 1929, to Edith Clagg, then unmarried and under sixteen years of age, who will be hereinafter referred to as 'Edith'. Edith obtained a bastardy warrant from a justice of the peace in Cabell County on December 9, 1929, contending that the decedent was the father of her child. Her mother, Mrs. Stella Clagg, obtained a warrant on the same date and before the same justice charging decedent with rape. Decedent filed a plea of not guilty to each charge before the justice. He gave bond and was held to the action of the grand jury on the rape charge. But the justice tried the decedent on the bastardy complaint, found him guilty of such charge, and certified his ruling to the Circuit Court of Cabell County, though in so trying him he exceeded his jurisdiction.

Edith and decedent were married on January 30, 1930, after decedent had been advised by a friend that such marriage would be the best way to avoid prosecution on the criminal charges. After the marriage of Edith and decedent, the bastardy charge was dismissed. No indictment for rape was returned, and the couple lived together in Cincinnati, where decedent was then employed.

The plaintiff offered the testimony of L. W. Blankenship, who was prosecuting attorney of Cabell County at the time the rape warrant was issued, that it was the policy of the prosecutor at that time to abstain from prosecuting a person accused of rape, where the party so accused subsequently married the alleged victim. But the trial court excluded such testimony.

During her marriage to decedent, Edith gave birth to a second child, which she admits was not the child to decedent.

After the couple had lived together for about five months, Edith came to the home of her parents in Cabell County for a visit, and, being unable to obtain funds from decedent to return to Cincinnati, she stayed in West Virginia. A divorce followed in the State of Ohio. Plaintiff remained with her mother, who later married Delbert Flora.

There is no direct evidence of sexual intercourse between decedent and Edith. The court refused to permit Edith to testify as to the paternity of the child, although the information for the bastardy warrant, which was signed by Edith and in which it was alleged that decedant was the father of her child, was filed as an exhibit. The court also refused to permit Edith to identify her signature on an affidavit charging decedent with paternity, which was one of the papers in the bastardy case before the justice of the peace. Such affidavit was permitted to be filed, however, on the theory that it was an official document laying the groundwork for the bastardy proceeding before the justice.

Evidence of courtship and association between Edith and decedent previous to the birth of plaintiff, which might have resulted in the child's conception, is uncertain and inconclusive.

Mary Coyle, a neighbor of the Claggs, testified that during the winter prior to the birth of the child, decedent spent most of his time at the Clagg home, courting Edith. Edith's mother testified that for some time prior to the child's birth, Edith and decedent kept company steadily, and that Edith did not associate with any man other than decedent.

The foregoing evidence is disputed by the testimony of defense witnesses, which was offered to establish that decedent was working and living in Cincinnati during the year 1929. Mrs. Farley testified that she and her family, including decedent, moved to Cincinnati from Huntington in 1927 and remained there until July, 1929, at which time the family moved back to Huntington; but decedant remained in Cincinnati. A witness, who was in the transfer business in 1929, testified that he moved the family from Cincinnati to Huntington in the summer of that year. Mrs. Farley also said that she couldn't recall that during her residence with decedent in Cincinnati from 1927 to July of 1929, decedent was ever away from home. Decedent's friend, who recommended his marriage to Edith, testified that on the occasion of such advice, he asked decedent where he had been and decedent replied that he had been in Cincinnati.

Various documents, found among decedent's personal effects after his death, were filed as exhibits, in connection with Mrs. Farley's testimony, to establish that the family was residing in Cincinnati prior to July, 1929, and to show that decedent remained there at the time the family moved back to Huntington. Such exhibits were: two postcards from Mrs. Farley in Cincinnati to her daughter in Canton, one dated March 8, 1929, and the other dated May 6, 1929; two postcards dated in August 1929, sent by Mrs. Farley from Huntington to decedent in Cincinnati; a postcard to decedent in Cincinnati in August 1929 from his sister in Huntington; a season ticket for the year 1929 in the name of decedent, issued by Chester Park in Cincinnati, where decedent worked; and a statement dated October 4, 1932, on the letterhead of Chester Park, to the effect that decedent had been employed at that place for the previous four years.

Evidence as to decedent's acknowledgment of paternity is also conflicting. A sister of Edith testified that decedent had told her prior to his marriage to Edith that plaintiff was his child, and that, after his divorce from Edith, decedent had sent the witness money for plaintiff. The sister identified a valentine, which was addressed to plaintiff as 'Miss Fay Farley' at the home of the witness, and was signed 'Daddy to Polly.' A Christmas card from decedent to plaintiff, received at the home of the witness, was also introduced. Mary Coyle testified that on one occasion, after the plaintiff's birth, she had said to him: 'It kind of looks like you are going to get married,' to which he replied: 'Well, after all, the baby in mine.' Mrs. Stella Clagg testified that about a month after the child's birth, decedent told her that he was the child's father.

A witness for the defense testified that decedent had told him the child was not his. In a letter to his mother, dated December 16, 1933, after his divorce, decedent wrote: 'mom I could have sent Edith those papers But why should I spend 75cents for her Benefitt. * * * she has cost me a enough for donald steward's kid.' The Donald Stuart referred to was the husband of Edith's sister. There is no direct evidence of an affair between Edith and Stuart.

Plaintiff testified that the Farley family recognized her as one of them. She says that she called Mrs. Farley 'grandma' and decedent's brother and sisters 'uncle' and 'aunts', and that she frequently stayed overnight and week ends at Mrs. Farley's home. In the last statement she is corroborated by her mother and aunt, who further said that Mrs. Farley treated plaintiff with much affection. Plaintiff also testified that she attended...