Markey v. Markey

• Decision Date: 15 May 1899
• Citation: 79 N.W. 258,108 Iowa 373
• Parties: BARTHOLOMEW MARKEY, JR., Appellant, v. PETER MARKEY and MARY MARKEY
• Court: Iowa Supreme Court

79 N.W. 258

108 Iowa 373

BARTHOLOMEW MARKEY, JR., Appellant, v. PETER MARKEY and MARY MARKEY

Supreme Court of Iowa, Des Moines

May 15, 1899

Appeal from Plymouth District Court.--HON. GEORGE W. WAKEFIELD Judge.

PLAINTIFF alleges in his petition that about May 1, 1879, Bartholomew Markey died intestate, seised in fee of a certain eighty acres of land, described, and that he "left surviving him, as his children and only heirs at law, the plaintiff and the defendant Peter Markey, his half-brother, and the deceased also left surviving him, as his widow, the defendant Mary Markey;" that the plaintiff and defendants are each entitled to one undivided one-third part of said land; and asking judgment confirming said shares, and for partition. The defendants answered, denying "that plaintiff is an heir at law" of said deceased, or entitled to any interest in said land. After the evidence was submitted, the plaintiff amended his petition, alleging that deceased "did, during his lifetime, always recognize the plaintiff as his son and as his child, and represented himself as the father of plaintiff, and such recognition was a general and notorious recognition of such relationship." Defendants answered this amendment denying the allegations thereof, and averring that whatever recognition, if any, was made, was in the state of Illinois and that by the law of Illinois, in force at the time plaintiff could not, as an illegitimate son of deceased, inherit property by virtue of any recognition from his father. Other allegations are made in the petition and answer as to the rents of the land and other matters, which, in view of our conclusion on the issue of plaintiff's heirship, need not be set out. Decree was rendered dismissing plaintiff's petition, and judgment for cost rendered against him, from which he appeals. The defendant Mary Markey having departed this life pending this action, the controversy is solely between this plaintiff and the defendant Peter Markey.

Affirmed.

* Whether one may claim as a legitimate son and recognized bastard is not decided, because the petitions here do not aver that claimant was illegitimate.--Reporter.

E. T. Bedell and Ira T. Martin for appellant.

I. S. Struble for appellees.

OPINION

GIVEN, J.

I.

Appellant moves to strike appellees' additional abstract, and to tax the cost thereof to appellees on the grounds that the denial of appellant's abstract is not sufficiently specific; that the matter set out does not add to or take from appellant's abstract, and does not show that appellant's abstract is defective. The denial is sufficiently specific, and a comparison of the abstracts shows that the additional abstract is necessary to a full understanding of the case. The motion is overruled.

II. Appellant, in his original petition, claims as child and heir at law of deceased, and in his amendment because deceased did, during his lifetime, generally and notoriously recognize the plaintiff as his son. Question is made whether the plaintiff may, in view of the allegations of his petition, also rest the claim upon the allegations of his amendment. Whether he may claim as legitimate son and also as a generally and notoriously recognized illegitimate son we do not determine. It will be observed that plaintiff does not allege in his petition or amendment whether he is the legitimate or illegitimate son of deceased, and we therefore proceed to consider the case on its merits on both claims.

III. Plaintiff introduced the deposition of Ellen Sharkey, aged seventy years, sister of the deceased, and for many years a resident of Chicago, Ill. If the testimony of this witness is to be credited, there can be no doubt that the plaintiff is the legitimate son of deceased. She testifies that about sixty years ago she was present at the marriage of her brother to Bessie McIntee, in the chapel in parish Markilone county Monaghan, Ireland; that plaintiff was born as the fruit...