In re Berg's Estate

• Decision Date: 08 June 1942
• Docket Number: 6766.
• Citation: 4 N.W.2d 575,72 N.D. 52
• Court: North Dakota Supreme Court

4 N.W.2d 575

72 N.D. 52

In re BERG'S ESTATE.

BERG v. BERG et al.

No. 6766.

Supreme Court of North Dakota

June 8, 1942

Syllabus by the Court.

1. Section 5745, Comp.Laws 1913, found in Chapter 53, of the Civil Code which fixes the rights of succession to the estates of intestates, provides for inheritance by illegitimate children. Pursuant to this section an illegitimate child inherits as such only from its father directly when its father has acknowledged it as his child by an instrument in writing, properly witnessed; and inherits as a legitimate child where the relation of parent and child has been legally created either by the marriage of the parents and the subsequent acknowledgment of the child by the father or the adoption of the child by the father into his family pursuant to the provisions of section 4450, Comp.Laws 1913 found in Chapter 9 of the Civil Code relating to adoption. Eddie v. Eddie, 8 N.D. 376, 79 N.W. 856, 73 Am.St.Rep 765.

2. Section 4450, Comp.Laws 1913, provides for the adoption of an illegitimate child by the father by publicly acknowledging it as his own, receiving it as such with the consent of his wife if he is married, into his family, and otherwise treating it as if it were a legitimate child.

3. The record in the instant case is examined, and it is held for reasons stated in the opinion, that the appellant has not shown himself entitled to inherit as an heir of Oscar H. Berg pursuant to the provisions of section 5745, Comp.Laws 1913, supra.

4. Chapter 70, Session Laws 1917, sections 10500b1 et seq., 1925 Supplement to the 1913 Comp.Laws, which declares every child to be the legitimate child of its natural parents and, as such, entitled to support and education to the same extent as if it had been born in lawful wedlock, and provides for the establishment of such child's parentage within one year after its birth, is construed and held to apply only to children born after the statute became effective.

Fred T. Cuthbert, of Devils Lake, and James E. Burdett, of McMinnville, Or., for appellant.

Kehoe & Kehoe, of Cando, for respondent.

NUESSLE Judge.

Oscar Henry Berg died intestate in August, 1938, a resident of Towner County, North Dakota. He left a substantial estate. This controversy is as to the descent and distribution thereof.

Berg was born in Finland. Sometime about 1895 he came to this country and took up his residence in Hamlin County, South Dakota. He worked for and lived with a family by the name of Suva. He remained there until late in the fall of 1897, when he came to North Dakota and filed on a government homestead in Towner County. In 1908 he married. He and this wife lived on the homestead until her death in 1927. In March, 1929, he and Juliana Elizabeth Berg, the petitioner and respondent herein, were married. They lived together as husband and wife until his death in August, 1938. No children were born to either of these marriages. Berg died intestate, leaving a considerable estate of real and personal property situated in North Dakota.

While Berg was resident in South Dakota, he became intimate with Ida Suva. On December 18, 1897, while she was living in the Suva home in South Dakota, Ida Suva, then unmarried, gave birth to the cross-petitioner and appellant Filmore Suva. The child Filmore lived at the place of his birth until he was about twenty years of age, at which time he moved to Oregon, where he now resides. He never became a resident of the state of North Dakota. Filmore never saw Oscar Henry Berg. He never received any support or maintenance from him, and no communication was ever had between him and Berg.

Sometime in January, 1898, one of Berg's neighbors told Berg he had received a letter from Heming Suva, Ida Suva's brother, saying that she had given birth to a child and claimed that Berg was its father. Berg at once wrote to Heming, inquiring if these things were true. Shortly after he also wrote to Ida inquiring about the matter, and again in April, 1898, he wrote Heming about it. In these letters he said he had heard it was charged that he was the father of Ida's child. He expressed doubt that this could be so. It is to be inferred, however, from what he wrote, that he and Ida had been intimate. But the inference also to be drawn from his words is that there had been no relations between them prior to May 12, 1897. He said he would like to know what the facts were with respect to the birth of this child and whether it was claimed he was its father; that if it could be established he was its father he would marry Ida and take her and the child into his home and care for them as a husband and father should. As he quaintly put it in his letter to Heming: "*** to my memory I have not befor May 12th so I hope you see to best of your ability and if it is so that it is mine meaning that if you so find it I want to be its father and take Ida for my wife and love her. but if it should hapen as it so often dos in the world to get to bee father to someone elsse's child, that would be saury thing as you unterstand your selfes. so takr notes and think if she has ben eneywhers working last spring about that time ***."

However, it does not appear that there was any response to his letters. Certainly nothing further was done about the matter in the way of making a claim that he was the father of the child until after the lapse of more than forty years and he was dead.

On Berg's death, his widow, Juliana Elizabeth Berg, filed her petition in the county court of Towner County, praying that the estate be probated and that it be distributed to her as the widow and to the surviving brothers and sisters of Berg. Then Filmore Suva filed a cross-petition, claiming as the son and heir of the deceased. The case was tried in the county court of Towner County. In addition to the facts hereinbefore set out, Suva introduced testimony to the effect that about a year after the child was born to Ida Suva, Berg went to South Dakota and, at that time, in response to a question as to whether he had been "to Suva's place to see his boy", he said he had; that in response to an inquiry by William Berg, his brother, he stated that the child was his; and, on another occasion, he told Heming Suva that he was the father of the child. Ida Suva, called as a witness, testified he was the child's father. Since Berg was dead of course there could be no denial of this testimony by him.

The county court held that the cross-petitioner Suva was not entitled to share as an heir. Suva appealed to the district court where a like decision was rendered. Thereupon, he perfected the instant appeal to this court.

Chapter 53, of the Civil Code, sections 5741 et seq., Comp.Laws 1913, fixes the rights of succession to the estates of intestates. Section 5743 fixes the rights of legitimate children, and section 5745 provides for inheritance by illegitimate children. Eddie v. Eddie, 8 N.D. 376, 79 N.W. 856, 858, 73 Am.St.Rep. 765. Appellant predicates his claim as an heir on the theory that as the natural son of Berg he inherits by reason of the written acknowledgment by Berg of his paternity; that even though there was no such written acknowledgment as to entitle him to inherit he was, under the facts and circumstances established, shown to have been adopted by Berg; that, in any event, he had been legitimated by operation of law.

Section 5745, Comp.Laws 1913, provides: "Every illegitimate child is an heir of the person who in writing signed in the presence of a competent witness acknowledges himself to be the father of such child; and in all cases is an heir of his mother and inherits his or her estate in whole or in part, as the case may be, in the same manner as if he had been born in lawful wedlock; but he does not represent his father or mother by inheriting any part of the estate of his or her kindred either lineal or collateral, unless before his death his parents shall have intermarried and his father after such marriage acknowledges him as his child or adopts him into his family, in which case such child and all the legitimate children are considered brothers and sisters and on the death of either of them intestate and without issue the others inherit his estate and are heirs, as hereinbefore provided, in like manner as if all the children had been legitimate, saving to the father and mother respectively their rights in the estates of all the children in like manner as if all had been legitimate. The issue of all marriages null in law or dissolved by divorce are legitimate."

Section 5745 was considered and construed in the case of Eddie v. Eddie, supra. We there said concerning it: "It will be noticed that by the first part of this section the father may, by a written acknowledgment, properly witnessed, enable his illegitimate child to inherit, and that in any case the child inherits from its mother, but in either case the inheritance is that of an illegitimate ***. On the other hand, by the succeeding provisions, when the relation of parent and child has been legally created, either by the marriage of the parents, and the subsequent acknowledgment of the child by its father, or the adoption of the child by the father into his family, such child then inherits as a legitimate child, along with children born in wedlock. The adoption into the family which here creates the right to inherit is the adoption provided for in section 2806 of chapter 8 of the Civil Code, ***."

Section 2806 is now section 4450 of Chapter 9 of the Civil Code, Comp.Laws 1913, which provides: "The father of an illegitimate child by publicly acknowledging it as his own, receiving it as such with the consent of his wife if he is married, into his family, and otherwise treating it as if it was a legitimate child, thereby...