Milburn v. Milburn

• Decision Date: 08 December 1882
• Citation: 60 Iowa 411,14 N.W. 204
• Parties: MILBURN, BY HER NEXT FRIEND, v. MILBURN.
• Court: Iowa Supreme Court

60 Iowa 411

14 N.W. 204

MILBURN, BY HER NEXT FRIEND,

v.MILBURN.

Supreme Court of Iowa.

Filed December 8, 1882.

Appeal from Linn circuit court.

The defendant and proponent filed in the probate court a paper purporting to be the will of her deceased husband, Hosea Milburn, and asked that the same be admitted to probate. The plaintiff and contestant filed and pleaded certain matters which she claimed amounted to a revocation of the will, and objected to its probate. To the matter pleaded by the plaintiff the defendant demurred, and the same was sustained. The plaintiff appeals.J. B. Young, for appellant.

Blake & Hormel, for appellee.

SEEVERS, C. J.

The defendant pleaded the will should not be admitted to probate because “since the making of said pretended last will and testament, to-wit, on or about the _________ day of September, A. D. 1874, at the residence of the said Hosea Milburn, in said county of Linn, this contestant was born; that she is the daughter of the said Hosea Milburn by Mary E. Baird, (now Mary E. Brown,) and was recognized by the said Hosea Milburn as his child, and such recognition was general and notorious.” This defense was overruled, and the only question to be determined is whether the court erred in so doing.

It must be regarded as the settled rule in this state that the birth of a legitimate child to the testator subsequent to the making of a will, and before the testator's death, will alone operate as an implied revocation of the will. McCullum v. McKenzie, 26 Iowa, 510;Negus v. Negus, 46 Iowa, 487;Fulton v. Chidester, Id. 588.

It is provided by statute: “Illegitimate children inherit from their mother, and the mother from the children. They shall inherit from their father whenever the paternity is proven during the life of the father, or they have been recognized by him as his children; but such recognition must have been genuine and notorious, or else in writing.” If the recognition is mutual, a father may inherit from his illegitimate child. Code, §§ 2465, 2466, 2467. Counsel agree that at common law an illegitimate child could not inherit from either parent. This being so, it is evident the common-law rule has been radically changed by statute; for under the statute such a child may inherit from its mother as if it was legitimate. If there are both legitimate and illegitimate children they inherit from the mother share and share alike, and if an illegitimate child has been recognized by its father it will inherit from him share and share alike with the legitimate children. For the purpose of inheritance an illegitimate child, when recognized by its father, stands on precisely the same footing as if it were legitimate. If ...