Record v. Ellis

• Decision Date: 08 April 1916
• Docket Number: 20097[a1]
• Citation: 97 Kan. 754,156 P. 712
• Parties: RECORD v. ELLIS ET AL.
• Court: Kansas Supreme Court

156 P. 712

97 Kan. 754

RECORD v. ELLIS ET AL.

No. 20097^[a1]

Supreme Court of Kansas

April 8, 1916

Syllabus

Upon the question of recognition, and especially upon the affirmative of that question, almost all of the evidence was by deposition. Held, that on appeal such evidence will be reviewed.

The testimony examined, and found not to support a finding of general and notorious recognition by the father of the plaintiff’s sonship as required by the statute (Gen. Stat 1909, § 2956).

Additional Syllabus by Editorial Staff.

As used in Gen. St. 1909, § 2956, providing that illegitimate children shall inherit from the father whenever they have been recognized by him as his children, but such recognition must have been general and notorious, or else in writing, "general" means "extensive," though not "universal," and "notorious" is synonymous with "open."

Appeal from District Court, Meade County.

Action by Notley E. Record against Carl Ellis, as an individual and as administrator, etc., and others. From a judgment for plaintiff, defendants appeal. Reversed, with directions to enter judgment for defendants.

West and Marshall, JJ., dissenting from the first syllabus and corresponding portion of the opinion.

Francis C. Price, of Ashland, and H. Llewelyn Jones, of Meade, for appellants.

Albert Watkins and A. C. Scates, both of Dodge City, and C. C. Barker, of Denver, Colo., for appellee.

OPINION

WEST J.

The defendant, the administrator of the estate of William Ellis, deceased, appeals from a decision adjudging the plaintiff competent to inherit from the decedent. The questions of paternity and of general and notorious recognition are involved. Gen. Stat. 1909, § 2956.

The plaintiff, Notley E. Record, son of Mary Record, was born in Pendleton county, Ky., January 12, 1873. William Ellis, born and raised in the same neighborhood, was a single man about 30 years of age at this time, and engaged to marry Miss Lydia B. Pribble, who lived in the neighborhood. On February 26, 1873, Mary Record, a single woman living in the neighborhood, made complaint charging the decedent with being the father of her child. A warrant was issued and returned on March 20th, not executed. Soon after its issuance Ellis went to Indianapolis, where in March he was married to Miss Pribble. They lived there until the following year when they moved to a farm in Morgan county, Ind., and remained there until 1884, when they moved to Clark county, Kan., near the Meade county line, in which vicinity Ellis and his wife lived together until his death in 1911, two sons, Frank and Carl, having been born to them. During these years Ellis made a number of visits to the old neighborhood in Kentucky, at which times he made statements and admissions which fully settle in favor of the plaintiff the question of paternity, and which amounted to a recognition. It does not appear, however, that, with one exception, any one ever heard William Ellis acknowledge the paternity in Indiana, where he lived for 10 years or in Kansas, where he lived for 27 years, and his wife and sons up to the time of his death claimed to have had no knowledge or information concerning the matter, although the wife, a cousin of Mary Record, had gone with him on a visit to the old neighborhood in 1883, and again in 1906, and the eldest son had visited in Kentucky with friends and relatives in 1904. One witness who was visiting the decedent in Kansas testified that Ellis requested him to say nothing to the children here about his life back there, but the intended significance of this remark is a mere matter of inference. Keeping the secret thus well in the neighborhood where he spent much of his married life and raised his children, the question remains whether the recognition shown elsewhere fills the requirement of the statute.

In addition to various statements concerning his relations with Mary Record and concerning the failure of the constable to execute the warrant, an old farmer and schoolteacher testified that in 1875 in Indiana, when working with Ellis, the latter would frequently say in a reminiscent way and sometimes in a jesting way: "I wonder how my boy, or how my Kentucky stock, is coming on back in Kentucky; my Kentucky stock, or my boy." Sometimes he would use the name "Not" or "Notley," and refer to him as "my boy." He also testified that he heard Mrs. Ellis frequently ask something about her husband’s Kentucky stock (this was denied by Mrs. Ellis); that when he would accuse Ellis of lying about having such a boy he would say, "I am not." Another witness testified that in 1878, in the old neighborhood, on meeting Ellis, he said, "How is my boy?" and on being asked, "What boy?" he replied, "My boy Not." Another, that on Christmas, 1883, at a wedding, while the witness and decedent’s father-in-law and others were sitting together, Ellis asked the witness: "How is my boy getting along? Is he big enough to do some work? I want to take him West with me to raise corn." The same witness, a brother of Mary Record, testified that in 1909 Ellis came into his booth at a fair at Falmouth, Ky., and asked where the plaintiff was, and requested witness to give him his address, saying: "It is funny I can’t find that boy. He is roaming around in the West the same as I am." One witness deposed that before Ellis left he told witness’ father that the child was his, and what he was working for was to get away and get shut of it; that on his return visits the witness frequently talked to Ellis about the matter, and he often inquired about the boy; that he heard a conversation between Ellis and the father of witness in which he said he would give the boy something when the time came, but his wife objected to it. Another, that he saw Ellis on a return visit probably in 1893, rode with him 2 or 2 1/2 miles, and asked him if he had seen his boy since he had come in. He said "No," but he would like to see him. He said: "Well I would like to see that boy; I would like to take him home with me, if he would go. I have got hold of a good deal of land down there in Kansas which some day will be valuable, and I could give Not a start if he would go home with me." Another testified that he saw the foot race when the constable went to arrest Ellis; that in talking about the matter on a return visit Ellis said it was his boy; that when the boy was about 12 or 13 years old, while witness and Ellis and others were at a certain store, the boy came in for his mail. Some one remarked that that was his boy, and Ellis said: "I reckon it is." Notley Record testified that he never saw Ellis but once in his life, and that was when he was about 16; that he had known of his being in the neighborhood at other times, but if he saw him he did not know him; that in the instance mentioned he just happened to meet him at the crossroads store; the storekeeper winked at Ellis, and "I knowed I was trapped then; I had always shunned him; " and Ellis there gave him a cigar.

What is meant by the requirement that the recognition must be general and notorious?

The Supreme Court of Iowa, whose statute is identical with ours, has ruled that "general" means "extensive," though not "universal," and "notorious" is synonymous with "open" (Van Horn v. Van Horn, 107 Iowa, 247, 77 N.W. 846, 45 L. R. A. 93); also that, as defined by Webster, "general" means "common to many, or the greatest number, widely spread; prevalent, extensive, though not universal; " and "notorious," "generally known and talked of by the public; universally believed to be true; manifest to the world." In Watson v. Richardson, 110 Iowa, 673, at page 691, 80 N.W. 407, at page 414, it was said that:

"Both of these words are used in the statute with the design of emphasizing the thought that the understanding of the father’s recognition should be as extensive as the immediate community of his residence, and within the common knowledge of the public."

In other instances the approved definitions were:

"Extensive, common to many, or the majority, but not universal." "Not concealed, open, generally or commonly known or spoken of." McCorkendale v. McCorkendale, 111 Iowa, 314, 82 N.W. 754; McNeill v. McNeill, 166 Iowa, 680, 148 N.W. 643.

The recognition required is not that of heirship, but sonship. Alston v. Alston, 114 Iowa, 29, 86 N.W. 55. It need not be in a state which permits bastards to inherit. Van Horn v. Van Horn, supra.

In a recent decision it was held that it is not necessary that it (the recognition) should have been universal or made known to all or a majority of the community, but it was sufficient where the proof showed that the father frankly admitted the relationship when there was occasion for him to speak, and made no attempt to conceal the same, though it also appeared that there were many of his friends, relatives, and acquaintances who had no knowledge thereof. Tout v Woodin, 157 Iowa, 518, 137 N.W. 1001. In that case there was testimony that the putative father visited the mother while still in bed, held the child in his arms, and brought or sent supplies for its use. It was said that his statements were not made in confidence, but openly and without apparent reserve, and on so many different occasions that the recognition must be held general and notorious, although a number of acquaintances more or less intimate with him testified that they had never heard him admit the paternity of the child. But there were some 20 distinct acts and statements of recognition. The rule therein announced was quoted with approval in Hays v. Claypool et al., 164 Iowa, 297, 145 N.W. 874, but it was held in the latter case that it was necessary to show that the father acknowledged his parentage openly in his intercourse with his neighbors, associates, and...