Kirkland v. Henry

• Decision Date: 17 April 1956
• Docket Number: No. 36896,36896
• Citation: 296 P.2d 165
• Parties: Curtis KIRKLAND, Plaintiff in Error, v. Othalene HENRY, Defendant in Error.
• Court: Oklahoma Supreme Court

Page 165

296 P.2d 165

1956 OK 130

Curtis KIRKLAND, Plaintiff in Error, v. Othalene HENRY, Defendant in Error.

No. 36896.

Supreme Court of Oklahoma.

April 17, 1956.

Syllabus by the Court.

1. To establish claim of legitimation, claimant must establish illegitimacy, paternity, that father publicly acknowledged claimant to be his child during minority, reception into father's family with wife's consent, if married, given with knowledge of illegitimacy, and treatment of claimant as legitimate.

2. The burden of proof to establish all elements of legitimation is upon claimant.

3. That portion of 10 O.S.1951 § 55, providing for adoption of illegitimate child by father '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', requires the father to have held such child out to his relatives, friends, acquaintances, and the whole world as his own.

4. Record examined and held that plaintiff's evidence was insufficient to establish all elements of legitimation.

Appeal from District Court of Rogers County; Josh J. Evans, Judge.

Action to determine whether plaintiff born illegitimate was by father legitimized and thereby adopted under requirements of 10 O.S.1951 § 55. Reversed.

Bassmann & Gordon, Claremore, for plaintiff in error.

Ralph B. Brainard, Claremore, for defendant in error.

PER CURIAM.

Defendant in error, Othalene Henry, as plaintiff, brought this action in the District Court of Rogers County against plaintiff in error, Curtis Kirkland, together with Gertrude Chapman and others, to quiet title in herself to an undivided one-half interest in a certain lot in the city of Claremore. One Will Henry, owner of the property, died intestate, in February, 1932. The defendant, Gertrude Chapman, then the wife of the decedent, was the surviving spouse. As defendant she joined with plaintiff in error in an answer denying plaintiff's claim to title in the property by inheritance as the daughter of Will Henry. She died prior to the trial of the case.

There is no question but that Othalene Henry was born an illegitimate. The sole issue is whether the trial court erred by entering judgment determining Othalene Henry to have acquired the right of inheritance under 10 O.S.1951 § 55, which reads as follows:

'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 were a legitimate child, thereby adopts it as such, and such child is thereupon deemed for all purposes legitimate from the time of its birth. The status thus created is that of a child adopted by regular procedure of court.'

Plaintiff in error urges his claim of error under one proposition, asserting that the judgment of the trial court was contrary to law, particularly the above cited statute, and was not sustained by the evidence.

Defendant in error, who will be referred to hereinafter as plaintiff, assumed the burden imposed upon her as claimant to establish legitimation by producing evidence which may be summarized as follows: Will Henry had become a widower some time prior to 1930 and while living alone in the residence located on the property involved in this action employed Maybell Vann, mother of plaintiff to do housework for him; while so employed she conceived plaintiff from sexual relations with Will Henry; plaintiff was born January 15, 1930; at the time of the conception neither Maybell Vann nor Henry were married but at some time near the date of plaintiff's birth Henry married Gertrude Sneed, who was the Gertrude Chapman named as a defendant; during all times pertinent to the case Henry and plaintiff's mother resided within a few houses of each other on the same street in Claremore; plaintiff's mother lived with her parents before and after she was born; Henry came to visit many times after the plaintiff was born and made some sort of settlement with the parents and thereafter on three or four occasions came to plaintiff's home and placed two or three dollars in her hand, these gifts were made during the first two to six months of plaintiff's life; a neighbor testified that some time during 1932 when Gertrude Chapman, Henry's surviving spouse, was winding up the affairs of decedent's estate, she told him that she could not sell the property involved in the action because it was hers only so long as she lived there and if she died it went to plaintiff; plaintiff's uncle testified that Henry admitted to Maybell's parents that he was the father of plaintiff; a teacher in a public school of Claremore testified that on a car trip from Claremore to Tulsa, when plaintiff was approximately two years of age, Henry told a Mr. Jones in the presence of herself and Mrs. Jones that plaintiff was his baby and that he was going to take care of her; plaintiff testified that Henry died when she was about two; that she first came to know Gertrude Chapman at age five and at about age thirteen Gertrude Chapman told her of a request made by Henry that she help support plaintiff, but not having anything at that time she would give her something monthly if she were put on an old age pension; plaintiff also testified to Gertrude Chapman giving her small sums, all less than a dollar, on several occasions when plaintiff was some five or six years of age; and that she gave her flowers on Decoration Day to place on Henry's grave.

Plaintiff in error, a defendant in the case, bore the burden of the defense, producing evidence to prove that Henry had consistently denied paternity both to individuals and on one occasion publicly. Otherwise, the defense evidence was contradictory of public acknowledgment and reception of...