LaSarge's Estate, In re

Decision Date10 September 1974
Docket NumberNo. 46917,46917
Citation526 P.2d 930
PartiesIn the Matter of the ESTATE of Allison LaSARGE, Deceased. Melvine KINCER, Appellant, v. Harold LaSARGE, Appellee.
CourtOklahoma Supreme Court

Charles R. Gray, W. N. Palmer, Pawhuska, for appellant.

Shoemake & Briggs, Pawhuska, for appellee.

HODGES, Justice.

The question to be decided is whether or not the appellant is the legitimized daughter of Allison LaSarge, deceased. If she is, she is the sole heir, and inherits the whole of his estate. If she is not, the estate, goes to the brothers and sisters of decedent.

The appellant, Melvine Kincer (Melvine), was born on August 6, 1928, to Mary Stubbs in Kay County, Oklahoma.

She was given the name of Melvine LaSarge and carried that name, and no other, until she married Kincer.

After the birth of Melvine, a bastardy proceeding was begun in Kay County, Oklahoma, against Allison LaSarge (Allison) charging him with being her father and asking for her support. Allison plead guilty to the charge and on September 1, 1928, he was decreed to be the father of Melvine and was ordered to pay the mother $1,000.00 in payments of $25.00 a month.

Harold LaSarge made the payments on behalf of his brother, Allison, whom he supported for most of his life because of Allison's physical handicaps, and because Harold was on the Osage roll, but Allison had been born two years too late to qualify.

In 1932, the $1,000.00 had been paid, and the payments stopped. Then by request of Mary Stubbs, the mother, Allison took the child. Allison was then living in Tulsa with his brother, Harold, and Harold's wife Marie. Marie picked up the child and brought her to their home. Shortly thereafter, the family, (Harold, Marie, Allison and Melvine) moved to Pawhuska where they lived for approximately two years. Melvine was enrolled in the Pawhuska schools. Allison was dependent on Harold for support and Harold assumed the obligation of supporting Melvine until her mother reclaimed her.

Melvine was baptized in the Catholic Church in Pawhuska on December 21, 1935. Marie and Melvine testified that Allison was present. Marie testified Allison told the priest that he was Melvine's father, and that it it was necessary to have permission of one of the parents before the priest would baptize the child. The baptismal certificate was admitted into evidence. It designates Allison LaSarge and Mary Stubbs as the parents of Melvine Bernadette LaSarge.

Melvine's mother returned for her in 1936. Her mother had married, and she continued to live with her mother and step-father until her marriage to Kincer. Shortly after returning to her mother's home, the family moved from Kay County to New Mexico.

In 1940 or 1941, Melvine visited with her father for about two weeks in Fairfax, Oklahoma. At that time, he was living with Harold and Harold's second wife, Josephine. He gave money to Josephine to buy clothes for her, and introduced her as his daughter to Josephine.

Many letters were written by the appellee, Harold LaSarge, to Melvine in his behalf, and in behalf of his brother, Allison. Allison could not write, and also suffered from a severe visual defect as the result of having had measles as a child. Some of those letters were written in 1963 and 1964. These were saved by Melvine and received in evidence. In these letters, Harold calls himself her uncle, and Allison her father, and expresses terms of endearment of her father and uncle toward Melvine and her family. He recounts many of her 'Dads' activities, and says that he has instructions from her Dad to say hello, and to kiss her children for him. He also recounted her birth date as being August 6, 1928, and listed her pedigree at 1/2 Kaw, 1/8 Pottawatamie, and 3/32 Osage, with the rest French. In one of the letters, he promised to visit in March of 1964 in which he said that Melvine's children will 'get to see their Grandpa and Uncle.' This letter also included an X by 'your Dad', the signature.

It is only after Allison's death that Harold denied Allison's paternity.

Allison died on July 1, 1966. Harold was appointed administrator of his estate, which consisted of a fractional Osage headright. He did not list Melvine as an heir. Melvine petitioned the court for determination of heirship and distribution of estate where she prayed to be adjudged the sole and only heir at law of Allison LaSarge.

Appellee urges and the court found that Allison did not publicly acknowledge Melvine as his daughter. We do not agree.

The policy of the law is to favor legitimation of children born out of wedlock. The severity with which the law formerly dealt with illegitimate children has been tempered both by statute and judicial construction. The effect of legitimating a child under 10 O.S.1971 § 55 is to make such child legitimate from birth and to give the child the right of inheritance. In Re Chew's Estate, 200 Okl. 317, 193 P.2d 572, 574 (1948).

There are two ways that an illegitimate child may be legitimized. One is to acknowledge paternity in writing in accordance with 84 O.S.1971 § 215. The other is to comply with the provisions of 10 O.S.1971 § 55. In Re Estate of Marriott, 515 P.2d 571, 573 (Okl.1973).

It is provided by 10 O.S.1971 § 55 that:

'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. * * *'

There is no express definition in the statute of the phrase 'public acknowledgment', but the phrase has been generally employed in the ordinary or commonly understood sense of disclosing facts of paternity without concealment to relatives, friends, acquaintances, and other third persons. It is generally held that the recognition need not be universal or so general and public as to to have been known by all. Trier v....

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8 cases
  • Adoption of Baby Boy D, Matter of, 62024
    • United States
    • Oklahoma Supreme Court
    • November 12, 1985
    ... ... The status thus created is that of a child adopted by regular procedure of court." ... See also In Re Estate of LaSarge, 526 P.2d 930, 932 (Okla.1974) ... 11 Wilson v. Foster, 595 P.2d 1329, 1333 (Okla.1979) ... 12 See H.B. 1308, 7 Okla. Sessions Law ... ...
  • Estate of King, Matter of
    • United States
    • Oklahoma Supreme Court
    • December 26, 1990
    ...would satisfy the requirements of the § 215 would also satisfy § 55.24 Matter of Swarer, 566 P.2d 126-27 (Okla.1977); In re Estate of LaSarge, 526 P.2d 930, 932 (Okla.1974); Colpitt v. Cheatham, 267 P.2d 1003, 1007 (Okla.1954).25 Title 10 O.S.1981 § 1.1 provides:"Wherever reference is made ......
  • Davidson v. Gregory, 65146
    • United States
    • Oklahoma Supreme Court
    • May 31, 1989
    ... ... certified as correct by the custodian or other person authorized to make the certification ... * * * ". [Emphasis added.] ... See also In re Estate of LaSarge, Okl., 526 P.2d 930, 933 [1974]; State v. Freeman, Okl., 440 P.2d 744, 759 [1968] ... 22 See Yeagley v. Brewer, Okl.App., 551 P.2d 312, ... ...
  • Kinney On Behalf of Kinney v. Sullivan
    • United States
    • U.S. District Court — Western District of Oklahoma
    • July 16, 1990
    ... ... § 55, relating to constructive adoption of children born out of wedlock); In re Gathings' Estate, 199 Okl. 460, 187 P.2d 981, 983 (1947). The questions of reception into the family and treatment as if the child were his own are so interrelated, ... ...
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