McKellar v. Harkins
| Decision Date | 01 April 1918 |
| Docket Number | No. 32141.,32141. |
| Citation | 183 Iowa 1030,166 N.W. 1061 |
| Parties | MCKELLAR ET AL. v. HARKINS ET AL. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Clayton County; A. N. Hobson, Judge.
Suit in partition of lands. The real contest, however, is one of ownership. All parties claim as heirs of Hugh McKellar, also known in the record as Hugh McKellar, Jr. McKellar died intestate and unmarried, seised of the lands involved herein. The parties are divided into two contesting groups. The first group, including the plaintiffs and the first-named five defendants, comprises the surviving brothers and sisters and the children of one brother deceased. This group claims the full title by collateral inheritance. The second group comprises the last five named defendants. They are the children of Clara Johnson Adams, deceased, an alleged illegitimate child of Hugh McKellar. This group claims the full title by direct in heritance through their mother. There was a decree for the second group. The other parties have all appealed. Affirmed.Eugene H. Garnett, of Chicago, Ill., and D. D. Murphy & Son, of Elkader, for appellants.
R. E. & V. T. Price and W. W. Davidson, all of Elkader, for appellees.
The five defendants referred to in the briefs as the “Adams” defendants are the legitimate children of Clara Johnson Adams. They aver that Clara Johnson Adams was the illegitimate child of Hugh McKellar, and that the paternity was proved in the lifetime of McKellar; and they aver also that the paternity was recognized by McKellar in writing. In support of the allegation of paternity and the proof thereof in the lifetime of McKellar, reliance is had upon certain bastardy proceedings had in the circuit court of Clayton county against McKellar on complaint of Elsa Johnson, wherein trial was had and verdict of guilty rendered and judgment entered on September 26, 1876. By this judgment McKellar was adjudged to pay certain installments for the support of the child. Clara Johnson Adams was such bastard child of Elsa Johnson. In support of the allegation that the paternity was recognized by McKellar in writing, reliance is had upon certain articles of adoption whereby one Svenson and wife adopted the child, and whereby McKellar as the purported father thereof consented to such adoption.
These facts, being found in favor of these defendants by the trial court, became the basis of the decree in their favor. The allegations here referred to were both denied and avoided by the plaintiffs and the appealing defendants. For them it is contended that McKellar always denied and never admitted the paternity; that the judgment against him in the bastardy proceeding was at a later date vacated and rendered wholly nugatory; that because of such vacation it is not available to these defendants as evidence that the alleged paternity was proved; that the article of adoption referred to contained no recognition of the paternity by McKellar; that, on the contrary, it implied a denial of such paternity; that by the adoption, the child Clara became a part of the family tree of her adoptive parents, and her right of inheritance was confined thereto; that in any event her heirs could only inherit through her as a part of such family tree; that even though the child Clara could have inherited from McKellar if she had survived him, yet she predeceased him, and therefore did not inherit from him; that her statutory right to inherit did not carry to her children a right to inherit from McKellar for want of statutoryprovision to that effect; that even though the statute conferred upon her the right to inherit from McKellar as her putative father in case of her survival, yet no power of transmitting such right of inheritance through her to her children was conferred by the statute, nor was any relationship created between her legitimate children and McKellar.
It is further urged that there was a want of mutuality, in that in no event could McKellar have inherited from the child, and for such reason a strict construction of the statute should prevail in favor of the legitimate heirs and against the illegitimate and her heirs. Such is the general nature of the contest. The mere facts are not in dispute. The inferences and conclusions therefrom are in conflict. The contest is argumentative, and in the main pertains to questions of law.
I. McKellar defended the bastardy proceeding. As a witness he denied illicit relations with the complainant. The verdict and the judgment went against him. By the judgment he was ordered to pay $1 per week until the 1st day of the May, 1877, term of the court “at which time such order for future provision for said child shall be made as shall then seem proper to the court.” He was also adjudged to pay the costs. The payments therein ordered were duly made. On May 19, 1877, it was further ordered by the court that McKellar continue to pay $1 per week for the support of the child “until the further order of this court.” On January 17, 1879, it was further ordered by the court that the defendant pay 50 cents per week in lieu of $1 per week for the period of one year. On January 10, 1881, the following order was entered by the court:
“And it is hereby ordered and adjudged by the court that the judgment in this case rendered in this court January 17, A. D. 1879, be and the same is hereby vacated from this date on the execution by the necessary parties of the proper instrument in writing authorized by the statute for the adoption of children, said instrument to be one whereby the said child, Clara Johnson, shall be adopted by Olaus Svenson and his wife, Sophia; said Hugh McKellar and the clerk of the circuit court of Clayton county to signify their consent thereto by signing said instrument and said Hugh McKellar to pay this day to the said Sophia Svenson the sum of $60; then the judgment in this cause to be vacated.”
On the same day the following article of adoption was executed, pursuant to which the custody of the child passed to the adoptive parents:
“Know all men by these presents, that we, Olaus Svenson and Sophia Svenson, his wife, of the town of Clermont in the county of Fayette in state of Iowa, in consideration of the sum of sixty dollars in hand paid by Hugh McKellar of the township of Highland in the county of Clayton in the state of Iowa, and in accordance with the order of the district court of said Clayton county this day made, do adopt as our own Clara Johnson aged four years and confer upon said child all the rights, privileges and responsibilities which would pertain to her if born to us in lawful wedlock and I, Hugh McKellar, an unmarried man, having the care and providing for the wants of said child, and being by the judgment of said court at its September term, 1876, declared to be the father thereof, do consent to the adoption aforesaid of the said Clara Johnson by the said Olaus and Sophia Svenson, the said child to be hereafter called and known as Clara Svenson, and is to be given to the said Olaus and Sophia Svenson for the purpose of adoption as their own child, the mother of said child being Elsa Johnson, and I, J. F. Thompson, clerk of the circuit court of said Clayton county, Iowa, do hereby give my consent to the adoption as aforesaid.
In witness whereof, we have hereunto subscribed our names this 10th day of January A. D. 1881.
Olaus Svenson.
Sophia her X mark Svenson.
Hugh McKellar.
J. F. Thompson,
Clerk of Circuit Court.”
[1] The case for the appellees rests largely upon the following sections of the Code:
Section 3384 provides:
“Illegitimate children inherit from their mother, and she from them.”
Was the record in the bastardy proceeding including the verdict and judgment, available to the appellees as proof of the paternity of the child? Further, was it available to the appellees as evidence that the paternity was proven during the life of the putative father? To answer these queries in the negative would be to render this part of section 3385 meaningless. No other form of proceeding is readily conceivable under our statutes whereby such proof could have been made in his lifetime.
It is argued that the judgment entry did not declare the paternity. This fact was found by the verdict of the jury, rendered in the light of the instructions of the court. In terms, the judgment of the court required the defendant to pay the costs and to pay the installments already mentioned for the support of the child. The finding of guilt was essential to the entering of any judgment whatever against the defendant. We do not think it was essential to the validity of the judgment that it should have contained a recital of the verdict or of the fact of defendant's guilt. The more strenuous contention of the appellants is not at this point, and we pass it without further discussion.
[2] Section 4722 of the Code of 1873 provided:
“The court may, at any time, enlarge, diminish or vacate any order or judgment rendered in the proceeding herein contemplated, on such notice to the defendant as the court or judge may prescribe.”
Pursuant to the foregoing statute the circuit court made the successive orders of May 19, 1877, January 17, 1879, and January 10, 1881, already referred to. We have set out the last order of the court in full because much of the contention of appellants is based upon it. It is urged that the order of January 10, 1881, was such a vacation of the original judgment as to render it entirely nugatory, and therefore not available to the appellees as evidence for any purpose whatever. It is ordinarily true that the vacation of a judgment involves the setting of the...
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State v. Chavez
...it in statutory form. ***” [5] That illegitimate children have no inheritable blood is but a fiction of the common law (McKeller v. Harkins, 183 Iowa 1030, 166 N.W. 1061) and has no application to our statutes, which are of civil law origin. They were adopted verbatim from the statutes of K......
- McKellar v. Harkins