Lowtrip v. Green
| Citation | 252 S.W.2d 524,363 Mo. 619 |
| Decision Date | 10 November 1952 |
| Docket Number | No. 1,No. 43066,43066,1 |
| Parties | LOWTRIP et al. v. GREEN et al |
| Court | Missouri Supreme Court |
Esco V. Kell, West Plains, for appellant.
Green & Green, Will H. D. Green and H. D. Green, West Plains, for respondents.
VAN OSDOL, Commissioner.
This is an action to partition eighty acres of land in Howell County in which action, because of the issues raised by the pleadings, title to real estate is involved.
The described land had belonged to Thomas W. Green, who died intestate April 25, 1949, and his brother, James P. Green, who died intestate January 25, 1950. Plaintiffs, husband and wife, in the first count of their petition, alleged that plaintiff wife, Clara Alberta Green Lowtrip, was the daughter and is the sole heir of Thomas W. Green, and the niece and an heir of James P. Green. Plaintiffs, in the second count, sought recovery for services allegedly rendered by them to Thomas in his lifetime; but plaintiffs have dismissed as to the second count, so that the plaintiff wife is the only party plaintiff interested upon this appeal. The named defendants are the nieces and nephews of Thomas W. and James P. Green, deceased. By their answer defendants denied that plaintiff was the daughter and the heir of Thomas (and that she was a niece and an heir of James); and on this issue joined, a trial was had without the services of a jury. The trial court found for defendants on the issue. However, the trial court recognized title in plaintiff to a 2/96th interest in the land (which she had acquired by deed from two defendants, Lyle and Norman Green), and ordered partition. Plaintiff, Clara Alberta Green Lowtrip, has appealed.
Admittedly plaintiff was born out of wedlock, but she introduced evidence tending to prove her legitimation as the child of Thomas W. Green under Section 468.070 RSMo 1949, V.A.M.S., which provides that if a man, 'having by a woman a child or children, shall afterward intermarry with her, and shall recognize such child or children to be his, they shall thereby be legitimated.'
This court has had occasion to review several cases in which the statute has been relied upon to establish claims of heirship. Breidenstein v. Bertram, 198 Mo. 328, 95 S.W. 828; Mooney v. Mooney, 244 Mo. 372, 148 S.W. 896; Drake v. Milton Hospital Ass'n, 266 Mo. 1, 178 S.W. 462; Busby v. Self, 284 Mo. 206, 223 S.W. 729. Apparently there are three supporting elements of fact essential to establish the ultimate issue of legitimation (and, in the instant case, the consequent or resultant rights of inheritance in plaintiff) under the provisions of the statute--actual paternity, intermarriage, and recognition. Breidenstein v. Bertram, supra. The plaintiff had the burden of proving the facts essential in supporting the ultimate issue. Mooney v. Mooney, supra. But in our case the shown fact of the intermarriage of Thomas W. Green with plaintiff's mother after the birth of plaintiff is in no way disputed. The contested issues are--was Thomas the (natural) father of plaintiff, and did he recognize her as his own daughter.
The statute (now Section 468.070, supra) was Concurring opinion of Thayer, J., in Adger v. Ackerman, 8 Cir., 115 F. 124, 135; Breidenstein v. Bertram, supra; Drake v. Milton Hospital Ass'n, supra; Busby v. Self, supra. Consequently it has been said the statute in effect makes the fact that a man recognizes a child born out of wedlock, as his offspring, after he has married the mother, persuasive, if not conclusive, evidence that he is the father of the child. If it were not so, an illegitimate child would be in the same helpless and unfortunate position which such children occupied before the statute was enacted, since it would frequently be impossible for a child to prove its paternity otherwise than by recognition. See again concurring opinion of Thayer, J., Adger v. Ackerman, supra; Breidenstein v. Bertram, supra. Thus we see that evidence tending to show the essential supporting fact of recognition is competent and relevant and persuasive in tending to demonstrate paternity.
In regard to the recognition supporting a finding of the parenthood of the alleged putative father--such recognition of the child as his own may be by combination of words, acts and conduct indicating the relation of parent and child. For example, the circumstances that the child has always borne the name of the alleged father and has been treated, maintained and educated as his child; and that the child has been uniformly received in society as his child, and so acknowledged by the other members of the family, are recognized as circumstances tending to prove the parentchild relation. Mooney v. Mooney, supra; Breidenstein v. Bertram, supra; Drake v. Milton Hospital Ass'n, supra. But while these circumstances, if shown, are persuasive and sufficient to support the finding of paternity, it would seem they are not always conclusive or decisive, Mooney v. Mooney, supra, because these shown circumstances or some of them may sometimes be also consistent with some relationship other than that of actual parent and child, and other evidence introduced tending to negative paternity may outweigh the weight of the evidence of recognition in tending to demonstrate paternity. Mooney v. Mooney, supra. See also Kidd v. St. Louis Union Trust Co., 335 Mo. 1029, 74 S.W.2d 827, involving the issue of adoption; Capps v. Adamson, 362 Mo. 539, 242 S.W.2d 556, involving the issue of adoption. In the Kidd and Capps cases some of the evidence tending to establish an adoption by contract or estoppel was also in harmony with a stepfather-stepchild relationship. Although we believe the Mooney case is an aid to us in reviewing the instant case wherein we shall endeavor to weigh the evidence, we do not adhere to the ruling in the Mooney case that there was no case to submit to the jury.
In reviewing the Drake case this court expressed no opinion as to the weight of the evidence. In the Breidenstein case, a case greatly relied upon by plaintiff-appellant, the issues of fact as to legitimation and consequent rights as a pretermitted heir were submitted to a jury, and the question, upon review, was whether the evidence was sufficient to support the ultimate finding of the trier of the fact. This court in reviewing that case was not trying the cause de novo. In reviewing the instant case our task is different because the trial of the factual issues was before the trial court without a jury. We must examine and weigh the evidence and reach our own conclusions as to the facts since we are required to review the case upon both the law and the evidence as in actions of an equitable nature. Section 510.310(4), RSMo 1949, V.A.M.S.
Ola Adkins, mother of plaintiff, testified that she met Thomas W. Green along in April, 1919, and kept company with him for almost three months. Plaintiff was born February 3, 1920. The witness stated that Thomas was the father of her child, plaintiff. When the child was six months old, in August 1920, the mother went to the Green home to care for Thomas W. Green's sister who was ill. Witness was married to Thomas in 1922. She had told her daughter that Thomas was the daughter's father. She had told 'each of my kids from the time they could walk and talk.' A child, Leon, sometimes referred to as 'Bell,' was born of the marriage. This son lost his life in World War II. The witness and Thomas were divorced in 1935.
Plaintiff, her mother and her husband, and disinterested witnesses testified that Thomas W. Green treated plaintiff as if she were his own daughter; he addressed her and spoke of her as his daughter; she addressed him as 'Dad,' and she referred to him as her father; her name was entered on the school rolls as 'Alberta Green'; she was known in the family as Alberta Green; Thomas, in making application for old-age assistance in 1940, stated to the ...
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...Santa Fe Trail Transp. Co., Mo., 217 S.W.2d 382; Dye v. School Dist. No. 32, 355 Mo. 231, 195 S.W.2d 874, 878[4, 16]; Lowtrip v. Green, 363 Mo. 619, 252 S.W.2d 524, 527. This is the established procedure in reviewing suits in equity. Lynn v. Coates, Mo., 142 S.W.2d 1014, 1019; Juengel v. Ci......
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...property. Its intent apparently is for the benefit of a child, or children, in relation to their rights of inheritance. Lowtrip v. Green, 363 Mo. 619, 252 S.W.2d 524. As heretofore pointed out, these proceedings are in connection with orders made by the court and the petition of appellant t......
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...234 S.W. 818(4). The three essential elements of such legitimation are actual paternity, intermarriage and recognition. Lowtrip v. Green, 363 Mo. 619, 252 S.W.2d 524(1).' Attention now focuses on the first, and most difficult, of the two questions raised sua sponte by this court. Were the m......
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