Orthwein v. Thomas

• Decision Date: 05 April 1889
• Citation: Orthwein v. Thomas , 127 Ill. 554, 21 N.E. 430 (Ill. 1889)
• Parties: ORTHWEIN v. THOMAS et al.
• Court: Illinois Supreme Court

127 Ill. 554

21 N.E. 430

ORTHWEIN

v.THOMAS et al.

Supreme Court of Illinois.

April 5, 1889.

Appeal from circuit court, St. Clair county; GEORGE W. WALL, Judge.

R. F. Wingate, for appellant.

M. Millard and William P. Launtz, for village of Brooklyn.

Charles W. Thomas and C. H. Patton, for other appellees.

SHOPE, J.

This was a proceeding in equity to establish title, and for the partition of all that part of United States survey No. 764, in St. Clair county, lying between Water street, in the village of Brooklyn, and the Mississippi river, being 1,995 feet long north and south, and about 2,000 feet wide, and which has been formed by accretion since 1837, when the village was platted. The complainants in the original bill claim to be the owners of the premises in question in fee, as tenants in common, under mesne conveyances from Thomas Osborn. The village of Brooklyn, one of the defendants, claims the premises by virtue of a town plat, made and recorded by Thomas Osborn and his immediate grantees in 1837, and as accretions to Water street; and the appellant, also one of the defendants, claims an undivided 33-35ths interest in the same premises, under mesne conveyances from the heirs of Susannah Osborn.

Answers were filed to the bill; and defendant Orthwein exhibited his cross bill, which was also answered; replications were filed; and testimony taken under the original and cross bills and answers; and upon the hearingboth the original and cross bills were dismissed. The defendant Orth wein alone perfected his appeal, and brings the record into this court, assigning for error the dismissal of his cross-bill.

Hannah Hillman, or Hannah Ratcliff, the same person, is the common source of title. Hannah Hillman was the daughter of James and Fanny Hillman. About 1808 she removed from Pennsylvania, and settled in St. Clair county. She bought the militia claim of John Moredock, No. 610, for 100 acres of land, which was located upon United States survey No. 764, which is the tract of land to which the land in controversy is an accretion, and upon which she settled about 1813, occupying it as a residence while she lived, and owned it in fee at the time of her death, in 1822. She died intestate, leaving surviving one child, Susannah, born in 1786, who, in 1807, intermarried with Thomas Osborn. Susannah and her husband moved upon this land of her mother's about 1816, and also occupied it as a residence from that time till the death of Susannah, in 1832. Susannah died intestate, leaving surviving her husband, Thomas Osborn, and six children. It appears that Hannah Hillman emigrated to this state with one William Ratcliff; that they here lived together upon this survey as man and wife until Hannah's death. There is no direct evidence of their marriage.

The first serious question presented is as to the legitimacy of Susannah. She was the daughter of said Hannah, but the original bill charges that she was a bastard, and incapable of taking by descent the lands owned in fee by her mother at the death of the latter. When Hannah died, her father and mother, James and Fanny Hillman, were still living in Pennsylvania; and the theory of the bill is that James and Fanny Hillman took by descent, as heirs of their daughter, Hannah, survey No. 764, and that Susannah took nothing. At the time of Hannah's death, in 1822, the common law had not been modified by statute, and a bastard could not inheriteven from its mother. It is true that, from the earliest organization of civil government in the territory northwest of the River Ohio, the descent of property had been regulated by written law. The rule of descent was first declared in the ordinance of 1787; and the act of March 23, 1819, (Laws 1819, p. 230, § 21,) in force in 1822, was a literal transcript of the second section of the ordinance. And although the rule had meantime been thrice declared by legislative authority, viz., by the governor and judges of he territory northwest of the Ohio river, in 1795, (Ter. Laws 1795, p. 92, § 4:) by the legislature of the Indiana territory, in 1807, (Rev. St. Ind. Ter. 1807, p. 77,) and by the governor and judges of the Illinois territory, in 1809, (1 Pope, Dig. p. 207, § 22,)-in every instance the persons first taking from the ancestor were described as ‘children.’

Susannah was the child of Hannah, and within the letter of the statute; but, if illegitimate, she would nevertheless be excluded from the inheritance,-for, under the rule of construction as applied to statutes, the words ‘child’ and ‘children’ embrace only legitimate children. Blacklaws v. Milne, 82 Ill. 505. It was not until 1829 that the rule of the common law was so modified in this state as that illegitimates could inherit from their mother, (R. L. 1829, p. 207, § 47,) and this has been the rule of descent from that time to the present.

If, then, the complainants have shown that Susannah was illegitimate, the estate of Hannah descended ‘in equal parts to the next of kin in equal degree,’ namely, to the father and mother, brothers and sisters, (if any,) and their descendants. Act March 23, 1819. For the purpose of showing illegitimacy, reliance is placed upon a deed from James and Fanny Hillman, executed and acknowledged by them in Allegheny county, Pa., February 19, 1825, to Thomas Osborn. This deed recites: ‘Whereas, Hannah Ratcliff, wife of William Ratcliff, of said state of Illinois, daughter and heir of the said James Hillman, departed this life in the month of October, 1822, leaving the said James Hillman, her father, and Fanny his wife, her heirs at law: now, for the purpose of vesting said Thomas Osborn and Susannah, his wife, who is the daughter of said Hannah Ratcliff, with all the real estate, to-wit, lands, tenements, hereditaments, of which the said Hannah Ratcliff was possessed at the time of her death, situate and being in the state of Illinois, aforesaid, and for the sum of $1 to us in hand paid by the said Thomas Osborn, at and before the ensealing and delivery hereof, the receipt of which is hereby acknowledged, have granted, bargained, and sold to the said Thomas Osborn and Susannah, his wife, and their heirs and assigns forever, all lands, tenements, hereditaments, of whatever nature or kind, which descended to us at the death of our daughter Hannah Ratcliff, late of the state of Illinois, deceased.’

It is manifest that the recitals of fact in this deed operate by way of estoppel upon Thomas Osborn, and, after its record in the proper county, August 9, 1827, upon his grantees. As was said in Pinckard v. Milmine, 76 Ill. 453: ‘We recognize the doctrine of estoppel by the recitals in a deed, and that a party claiming under such deed cannot be permitted to deny any fact admitted to exist by such recitals;’ citing Byrne v. Morehouse, 22 Ill. 603;Rigg v. Cook, 4 Gilman, 336. And adding: ‘The principle of these cases is that whatever rights legitimately arise on such admitted facts may at all times be asserted, whether it be to obtain or defend the possession of such rights.’ Thomas Osborn would not have been permitted, nor can the appellees, his remote grantees, now be heard, to deny the facts recited in this deed, namely, that Hannah Hillman and William Ratcliff were man and wife, and that Susannah Osborn was the daughter of Hannah Ratcliff. Hannah Ratcliff was, then, a married woman, and Susannah Osborn was her only child. In contemplation of law, Susannah is presumed to have been born in lawful wedlock, and this presumptionmust prevail until the legal presumption of legitimacy, which attaches to every child, is overcome by clear and convincing proof; and the burden of showing illegitimacy is, by the law, cast upon those who allege it.

The doctrine announced is fully sustained by the authorities. In Strode v. Magowan's Heirs, 2 Bush, 621, 627, it is said: ‘The law presumes that every child in a Christian country is prima facie the offspring of a lawful, rather than of a meretricious, union of the parents, and that, consequently, the mother, either by actual marriage or by cohabitation and recognition, was the lawful wife of the father; and, in the absence of any negative evidence, no supplemental proof of legal marriage will be necessary to legitimate the offspring. Mere rumor is insufficient to bastardize issue, or require positive proof of actual marriage. If the presumption be false, repellant facts may be generally established; and, if no such facts can be clearly proved, the presumption from mere filiation should stand.’ So in Wilkinson v. Adam, 1 Ves. & B. 422, it is said by Lord ELDON that the rule cannot be stated too broadly, that the description, ‘child,’ ‘son,’ ‘issue,’-every word of that species,-must be taken prima facie to mean legitimate child, son, issue, and that to this extent all the cases go. So, too, in Caujolle v. Ferrié, 23 N. Y. 91: ‘It being shown and conceded that the respondent was the son of the decedent, * * * the presumption of law was that he was her legitimate son; and those who assume the fact of illegitimacy have cast upon them the onus of establishing it.’ And the cases cited by the court go to this extent: that the law is unwilling to bastardize children, and throws the proof on the party who alleges illegitimacy; and, in the absence of evidence to the contrary, a child eo nomine is therefore a legitimate child. Nor does the law require an acknowledged and conceded child to prove an act of marriage to maintain his legitimacy. The presumption and charity of the law are in his favor, and those who wish to bastardize him must make out the fact by clear and irrefragable proof; that the presumption of law is not lightly to be repelled; it is not to be lightly broken in upon or shaken by a mere balance of probabilities; the evidence for repelling it must be strong, satisfactory, and conclusive. And in another case cited, (Piers v. Piers, 2 H. L. Cas. 331,) it is said: ‘Presumptions of this sort, in favor of marriage,...