McLean v. McLean
| Decision Date | 09 May 1914 |
| Docket Number | 18,774 |
| Citation | 92 Kan. 326,140 P. 847 |
| Parties | WALTER W. MCLEAN et al., Appellees, v. T. J. MCLEAN et al., Appellants |
| Court | Kansas Supreme Court |
Decided January, 1914.
Appeal from Cowley district court; CARROLL L. SWARTS, judge.
Judgment affirmed.
SYLLABUS BY THE COURT.
1. DESCENT OF KANSAS REAL ESTATE -- Governed by Kansas Statutes. Upon the death of the owner, the descent of his real property situated in this state is governed solely by chapter 33 of the General Statutes of 1909.
2. ILLEGITIMATE CHILDREN--Inheritance--Recognition by Father--Question of Fact. Whether an illegitimate son has been so recognized as such by his father as to constitute a general and notorious recognition of that relation is a question of fact.
A. M. Jackson, of Winfield, and A. L. Noble, of Medicine Lodge, for the appellants.
A. F. Sims, of Howard, G. H. Buckman, and S. C. Bloss, both of Winfield, for the appellees.
The following are the facts, so far as not controverted, of this case: The action is ejectment for the recovery of about four hundred acres of land lying in Cowley and Elk counties owned by one Hardin McLean at the time of his death, in 1910. The appellees, plaintiffs, are an alleged bastard son of Hardin McLean, and those to whom this alleged son has conveyed undivided interests by deed since the death of the intestate; and the appellants, defendants, are those collateral relatives of McLean to whom the land would descend under our statute of descents (Gen. Stat. 1909, §§ 2935-2967) if the alleged bastard son is not qualified to inherit. The only issue in the case is that of the qualification of the alleged illegitimate to inherit by reason of recognition of him as a son by the putative father otherwise than in writing.
The petition, after stating the names and addresses of the plaintiffs, is the usual petition in ejectment. The case was tried to a jury, and a general verdict returned for the appellees, plaintiffs, and judgment followed in accordance with the verdict in their favor.
The appellee, Walter W. McLean, was born in Kentucky in 1877, and remained in that state for about eighteen months thereafter, as did also his mother and the decedent, his putative father. When the boy was about eighteen months old he was removed with his mother and her family to Tennessee, where they remained six or eight years, and then removed to Arkansas, where they resided until the mother's death and where the son resided until after the death of decedent. Shortly after the removal of that family to Tennessee the decedent moved to Kansas, where he remained about ten years; he then returned to Kentucky for about ten years, when he came to Kansas and resided here until about two years before his death, when he removed to Oklahoma, where he remained until a short time before his death, which occurred at Winfield, Kan. Walter W. McLean never heard of or from decedent until after the latter's death, in December, 1910.
The appellants, for the first defense to the petition, admitted the death of Hardin McLean in December, 1910, and alleged that at the time of his death he was a resident in good faith of the county of Osage, in the state of Oklahoma, and further that at his death they were his sole heirs at law; that they inherited, as such heirs, all his property, and were the owners and in possession of the real property in controversy, and further denied all the allegations of the petition. In the second defense they alleged that the decedent was never married, and admitted his residence in Kentucky and removal to Kansas, as alleged in the petition. They further alleged that at the death of Hardin McLean one E. R. McLean, a resident of Osage county, Oklahoma, was by the county court of Osage county, Oklahoma, which court had sole jurisdiction in the premises, duly appointed administrator of the decedent's estate; that he at once duly qualified as such administrator and took possession of all property belonging to the estate found in Oklahoma. They also pleaded the laws of Oklahoma, in force in that state, by which it is provided that "Every illegitimate child is an heir of the person who in writing, signed in the presence of a competent witness, acknowledges himself to be the father of such child." (Compiled Laws of Okla. 1909, § 8987.) They further pleaded the laws of the state of Kentucky, in force in 1877 and ever since, on the question of the inheritance of illegitimate children from the father. In the third defense they allege that the plaintiff, Walter W. McLean (whom they designate as Williford), is not the bastard child of the decedent, and that his coplaintiffs obtained whatever interest they now claim in the real estate in controversy by reason of advancements made to him by them in their joint efforts to perpetrate a fraud upon these defendants, and that all took their respective interests therein with full knowledge of such fraudulent claim. And further, they allege that they are the owners of the legal and equitable title and in possession of the land described in plaintiff's petition, and that plaintiffs have no interest therein.
The case was tried to a jury in the district court of Cowley county in December, 1912, verdict and judgment were for appellees, and a motion for new trial was overruled.
The appellants made numerous assignments of error, but in the argument in their brief they say that the case should be reversed upon the ground that the evidence fails to show such a general and notorious recognition as our statute requires to enable an illegitimate to inherit from the father. This is the principal question remaining in the case.
The rights of the parties depend, first, on whether the laws of Kansas or of Kentucky or Oklahoma are to be applied. It is believed to be a universal rule that the descent of real property is governed by the law of the state or nation within which it is situated. (14 Cyc. 21.)
In accordance with the general rule, we hold that the law of Kansas determines the descent of the property in dispute and that it is entirely immaterial what the law of Kentucky or Oklahoma may be.
Sections 2955 and 2956 of the General Statutes of 1909, relating to inheritance by illegitimate children, read:
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...are numerous cases involving decedents and decedents' estates in which paternity has been the controlling issue. In McLean v. McLean, 92 Kan. 326, 140 P. 847 (1914), the question to be determined was whether plaintiff was the illegitimate son of a decedent, and whether the decedent had reco......
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...stead with respect to the income from the real estate located within this state. As bearing on the general proposition see McLean v. McLean, 92 Kan. 326, 140 P. 847; Martin v. Martin, 93 Kan. 714, 145 P. 565; Hanson v. Hoffman, 150 Kan. 121, 91 P.2d 31; Singer v. Wilson, 151 Kan. 621, 100 P......
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