In re Felle's Estate

• Decision Date: 29 July 1946
• Docket Number: 46883.
• Citation: 23 N.W.2d 910,237 Iowa 1082
• Parties: In re FELLE'S ESTATE. JACKSON et al. v. TORGERSON et al.
• Court: Iowa Supreme Court

23 N.W.2d 910

237 Iowa 1082

In re FELLE'S ESTATE.

JACKSON et al. v. TORGERSON et al.

No. 46883.

Supreme Court of Iowa

July 29, 1946

Rehearing Denied Oct. 18, 1946.

W Lawrence Oliver, of Des Moines, for appellants.

L A. Moe, of Mason City, for appellees.

OLIVER Justice.

This is a contest between two groups of alleged heirs at law of Thomas R. Felle who died intestate in 1943, leaving an estate valued at less than $7,500. Each group claims the right to inherit said estate. Thomas was unmarried and without issue, had no brother nor sister, and left no surviving father nor mother. He had been born out of wedlock about 1891. Ten months later his natural mother died and he was taken to the home of Osmund Olsen Felle and his wife Susane O. Felle, by whom he was reared under the name of Thomas R Felle. Osmund died in 1921 and Susane in 1922, leaving no surviving lawful issue.

The administrator of Thomas' estate, reporting that Mary Torgerson, who died about 1891, was Thomas' natural mother, and that his natural father was unknown, listed Mary's surviving brothers, sisters, etc., as his heirs at law. For convenience this group of alleged heirs will be hereinafter referred to as the Torgersons.

Subsequently the administrator instituted proceedings to sell decedent's real estate. Three sons of John Jackson, deceased, intervened in the proceedings, alleging they were entitled to the estate. John Jackson was the brother of Susane O. Felle. The Jacksons contend the mother of Thomas R. Felle was unknown, and that Osmund Olsen Felle was the natural father of Thomas and would have inherited Thomas' entire estate had he survived Thomas. From Osmund the Jacksons trace their claim through Osmund's lawful wife, Susane, and from her through her brother, their deceased father.

The parties stipulated that the action be tried in equity. The trial court found Mary Torgerson was decedent's natural mother and Osmund Olsen Felle was not his natural father. Judgment was rendered dismissing the petition of intervention of the Jacksons and establishing the heirship of the Torgersons. The Jacksons have appealed.

The Jacksons testified that about 1892 (when they were children) they overheard conversations between Osmund and Susane Felle in which Susane told Osmund she did not want the boy Thomas, and Osmund told her Thomas was his boy and he wanted him. They also testified that for about six months after Thomas was brought to the Felle home Susane did not take care of him and Osmund cared for him. The Jacksons admitted they never heard anyone in the neighborhood make any remarks relative to relationship between Osmund and Thomas. One of the Jacksons admitted Mary Torgerson was supposed to be the mother of Thomas and that there was an allegation in some papers filed for the Jacksons that they did not know who was the natural father of Thomas. It is undisputed that Osmund and Susane called Thomas 'son' and he called them 'dad' and 'mother'.

For the Torgersons, a witness testified her father, Ole Rusley, was Mary's uncle, that Mary came to this country from Norway and lived in the neighborhood with the Talle Rusleys, another uncle and aunt, that Mary frequently came to the home of the witness; that the witness, then a child, knew of Mary's pregnancy and the birth of her illegitimate son, that Mary and the boy stayed at the Talle Rusleys until Mary's death ten months later; that the father of the witness had the baby baptized and gave it to the Felles; that when he returned home he said, 'He was so tickled he got to leave it there because he knew them', that she never heard it said by anyone in the family that Osmund was the father of the boy; that the family and relatives understood one George Anderson to be such father. The record shows bastardy proceedings brought by Mary against George Anderson and a trial resulting in the dismissal thereof.

Another witness testified Mary was her sister, that Mary had been buried in a Winnebago County church cemetery but her body was subsequently moved to the Rusley lot at St. Ansgar, that she saw Thomas Felle after he was grown and sent him some candy during World War I; that he called her 'aunty' and that Mary Torgerson was his mother. There was also evidence of the relationship of the respective Torgerson claimants to Mary Torgerson.

In 1921 a written contract was made between Osmund and Susane, as parties of the first part, and 'Thomas R. Felle, the adopted son of said first parties, as party of the second part' reciting that 'the second party since he was of the age of eight or ten months has been as a son to the parties of the first part, although no legal adoption papers were executed for him'; that Thomas wishes to provide for the care and maintenance of first parties who have become aged and infirm; that the first parties have conveyed their farm to Thomas and...