Kelly v. Scott
| Full Citation | Kelly v. Scott, 257 P. 303, 1927 OK 171, 125 Okla. 208 (Okla. 1927) |
| Decision Date | 21 June 1927 |
| Citation | 125 Okla. 208,1927 OK 171,257 P. 303 |
| Docket Number | Case Number: 18052 |
| Parties | KELLY v. SCOTT et al. |
| Court | Oklahoma Supreme Court |
¶0 1. Bastards--Written Acknowledgment of Legitimacy by Father--Dispute of Heirship on Ground of Fraud and Duress in Procurement of Acknowledgment--Requisites of Pleading.
Section 11303, C. O. S. 1921, 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. * * *"
Where the alleged father, under this provision of the statute, executes a written instrument or instruments which acknowledge the paternity of an illegitimate child, such instruments make said child his heir at law. If after his death other alleged heirs, in order to defeat the said child, plead generally that the said instruments were procured by fraud and duress, the pleading so charging is defensive, and the acts constituting the fraud or duress should be set out specifically.
2. Same--Sufficiency of Acknowledgment in Father's Will Otherwise Invalid.
Section 11303, C. O. S. 1921, provides no particular form for acknowledgment of the paternity of a child born out of wedlock. Where the father has voluntarily executed an instrument in the presence of witnesses which purports to be a will, in which he acknowledges that he is the father of said child, and makes provision therefor out of his estate, although said document may be ineffective as a will, there is nothing in the said statute that would preclude said document from being effective as a written acknowledgment of the paternity of the child, and entitle it to take as an heir, and where said document is shown in evidence to have been executed by the father, and no fraud or duress is shown as against this document which would operate to avoid the same, judgment finding against such child is not supported by the record.
3. Same--Reversal of Judgment Against Child with Directions for New Trial After Reframing Pleading as to Fraud and Duress.
When fraud and duress in securing an acknowledgment of an illegitimate child by the father are alleged but not properly pleaded, and the record discloses that the ends of justice might better be met by giving the parties an opportunity, if the facts warrant, to plead fraud and duress properly, as to each document recognizing the paternity of the illegitimate child, this court, rather than reverse the case with directions to enter judgment on the record, will reverse it, with directions to grant the parties permission to properly frame their pleadings and try the issues raised thereby.
Error from District Court, McIntosh County; Harve L. Melton, Judge.
Petition by George Scott and Mannie Scott for determination of heirship of Adam Scott, deceased. Judgment in county court for Jennie Kelly, a minor, from which petitioners appealed to district court, where judgment was for petitioners, and Jennie Kelly, by her guardian and by guardian ad litem, brings error. Reversed, with directions.
W. N. Dannenburg and Chas. B. Rogers, for plaintiff in error.
Green & Green and Frank L. Montgomery, for defendants in error.
¶1 Error herein is prosecuted from the district court of McIntosh county by Jennie Kelly, sometimes referred to in the record as Jennie Kelly Scott, a minor, by her duly appointed guardian, Sam Kelly, and by her duly appointed guardian ad litem. The judgment is alleged to be erroneous and not supported by the record. It was entered on appeal from a judgment of the county court of McIntosh county, in a proceeding properly instituted in the county court to determine heirship by certain full-blood Indians of the Creek Nation, under the authorization contained in the Act of Congress of June 14, 1918, 40 Stat. at L. 606, commonly referred to as the Heirship Statute. In the county court, George Scott and Mannie Scott filed a petition, the form of which is not questioned, in which was pleaded that Adam Scott was a citizen by blood of the Creek Nation, and departed this life a resident of McIntosh county, and left property, and prayed that the county court give notice as provided by law to the known and unknown alleged heirs, and that the county court hear the petition, and any claim that the known or unknown alleged heirs saw fit to interpose, and enter a decree or judgment determining the heirs of the said decedent. The county court acquired jurisdiction by causing the proper notices to be given, among which was a notice served upon Jennie Kelly or Scott, a minor, and her guardian. Jennie Kelly pleaded in the said cause in the county court in effect that she was the child and sole heir at law of Adam Scott, and that while she was born out of wedlock, she had been by instruments in writing recognized by the said Adam Scott as his child, and thereby, under section 11303, C. O. S. 1921, inherited the property of the said decedent. This was denied, and on the trial of the issues by the county court, Hon. Horace B. Reubelt presiding, the county court found that the allegations of the said Jennie Kelly, a minor, had been fully sustained, and that the said Jennie Kelly was the daughter of the said Adam Scott, and recognized as such in the manner prescribed by law prior to his death and was and is his sole heir at law, and entitled to inherit all the property of the said decedent, both real and personal, of which he died seized and possessed; that the said Jennie Kelly is an unenrolled Indian of less than full blood.
¶2 From this judgment the petitioners appealed to the district court of McIntosh county, where the said cause was tried de novo. After a hearing upon pleadings supplemented in the district court on the part of the petitioners, the district court found that the said Jennie Kelly or Scott, a minor, was not the heir of the decedent, but that the petitioners were the heirs. In the judgment of the district court there is no express finding of the truth or falsity of the allegations on which the minor pleaded its right to be adjudged the heir of its father. The finding is merely general on the issue of heirship. The cause is here, the minor taking the position that the judgment of the county court was the correct judgment, and that the record did not justify the general finding in favor of petitioners, as contained in the judgment entered in the district court.
¶3 In the county court, being served with notice, the minor, through its guardian, among, other things, pleaded that Adam Scott, the decedent, was a single man, and that Eliza Kelly was a single woman, but that Adam Scott was the father and Eliza Kelly was the mother of the claimant, Jennie Kelly, and that Jennie Kelly inherited the property of said Adam Scott, for that:
"Said Adam Scott acknowledged in writing in the presence of witnesses that said Jennie Kelly was and is his child; that subsequent to the birth of the said Jennie Kelly, the said Adam Scott provided for, supported, and maintained said Jennie Kelly and verbally and in writing repeatedly recognized the said Jennie Kelly as his child."
¶4 As set out above, the county court, on hearing, found these last-mentioned allegations in favor of the minor, Jennie Kelly, that is, that Adam Scott was in fact the father, and specifically found that she had been recognized in writing by the said decedent, and that thereby she inherited his property.
¶5 When the case was called for trial in the district court, the same pleadings were therein filed in the form of a transcript from the county court; but an additional pleading, in substance the same of the guardian ad litem, appointed after the cause reached the district court, was filed. The petitioners, through their attorney of record, dictated in open court and into the record a reply, the material part of which reads as follows:
"For petitioners' reply to the answer and cross-petition of the guardian ad litem, filed herein * * * petitioners deny all and singularly the allegations contained in said answer and cross-petition inconsistent with the allegations and claims of petitioners; and further deny that Adam Scott ever executed an acknowledgment of paternity of the said child Jennie Kelly; that if Adam Scott ever did execute any purported instrument in writing tending to acknowledge the child Jennie Kelly as his child, that said purported acknowledgment was produced by duress, fraud and undue influence.* * *"
¶6 Upon the pleadings as so drafted, evidence was taken by the district court judge.
¶7 The apparent purpose of all the evidence was to establish, first, whether Adam Scott was actually the father of Jennie; and second, if actually the father, whether the alleged instruments in writing purporting to acknowledge her as his child were secured by fraud and duress. Both courts found the evidence showed decedent was the father.
¶8 There were two instruments admitted in evidence which purported to have for their sole purpose the acknowledgment of the paternity of the said Jennie. One was dated the 21st day of April, 1925; the other dated the 31st day of July, 1925. The first read as follows:
¶9 The second (Exhibit C) reads as follows:
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