Reed-Smith v. Lockridge

• Decision Date: 06 March 1937
• Docket Number: 33231.
• Citation: 65 P.2d 345,145 Kan. 395
• Parties: REED-SMITH v. LOCKRIDGE et al.
• Court: Kansas Supreme Court

65 P.2d 345

145 Kan. 395

REED-SMITH v. LOCKRIDGE et al.

No. 33231.

Supreme Court of Kansas

March 6, 1937

Syllabus by the Court.

Court or jury is not required to believe or accept as true testimony of witnesses although not contradicted by direct evidence.

Where evidence is all documentary or by deposition, Supreme Court can examine and weigh it and can review record.

Where evidence is oral and documentary, and conflicting, Supreme Court reviews record only sufficiently to ascertain whether there is substantial competent evidence to support judgment.

In action to establish heirship of alleged illegitimate child evidence held to sustain judgment refusing to establish heirship (Mo.St.Ann. § 315, p. 200).

1. A court or jury is not required to believe or accept as true the testimony of witnesses merely because there was no direct evidence contradicting the same.

2. Where evidence is all documentary or by deposition, this court can examine and weigh it as intelligently as the district court, and hence we review the record. Where however, the evidence is oral and documentary, and conflicting, this court reviews the record only sufficiently to ascertain whether there is substantial competent evidence to support the judgment, and is not concerned with evidence unfavorable to the judgment.

3. The record, in an action to establish the heirship of an alleged illegitimate child, examined and held, the judgment of the trial court cannot be disturbed.

Appeal from District Court, Clay County; Edgar E. Bennett, Judge.

Proceeding by Pearl Reed-Smith against R. M. Lockridge, administrator of the estate of Kathleen I. R. Todd, deceased, and others. From an adverse judgment, the plaintiff appeals.

W. T Roche, of Clay Center, and Richard C. Southall, of Kansas City, Mo. (J. H. Wilson, of Salina, of counsel), for appellant.

C Vincent Jones, of Clay Center, for appellees.

WEDELL Justice.

This was an action to establish heirship. Appellant first filed an application in the probate court of Clay county, in which she asked to be listed as an heir of Kathleen I. R. Todd, deceased. The application was denied and she appealed to the district court. The result was the same and from that judgment she appeals.

A brief statement relative to the relationship of parties to the action may be helpful. R. M. Lockridge, was made party defendant, as administrator of the estate of Kathleen I. R. Todd, deceased. Kathleen Todd died intestate in Clay county, leaving no direct heirs. One of her brothers was John Reed. He died in 1925. He had married a Mrs. O'Shey, who was the mother of appellant, Pearl Reed-Smith. The mother, Mrs. O'Shey, died in 1928. The other defendants, Anna E. Ready, and Charles K. Reed, are children born to the marriage of John Reed and Mrs. O'Shey.

The contention of appellant is she was an illegitimate child of John R. Reed, and under facts to be narrated was entitled to inherit from the estate of the deceased, equal shares with the other two children of John Reed. She contends John R. Reed had access to her mother, Mrs. O'Shey, during a period of abandonment by O'Shey, and that the continuous absence of O'Shey was for a sufficient length of time to preclude O'Shey from being her father. Appellant was born July 9, 1882, in the state of Missouri, where the parties were then living. Mrs. O'Shey was divorced from O'Shey on November 15, 1884. The service was by publication. She later married John R. Reed. Appellant contended below an agreement in writing had been executed in the state of Missouri between John Reed and her mother, prior to their marriage, which was framed and hung on the wall behind the marriage certificate. It was explained this agreement had been lost in the flood of 1903. The substance of it, as stated by the witness McFadden, was alleged to be as follows: "I, John Reed, hereby acknowledge the baby, Pearl, as mine and promise to adopt her and raise her under my name the same as though she had been born after we were married."

McFadden testified he signed the alleged agreement as a witness, but that it was not signed by John Reed, or the mother of appellant, at the time he saw it and signed as a witness. The substance of the instrument according to appellant's testimony was: "I hereby acknowledge the child, Pearl Reed, as my own and agree to raise the child as my own child just the same as though her mother and I were married at the time she was born."

Appellant asserts the law of Missouri is controlling, but that she should also prevail under the laws of Kansas. The Missouri statute relied upon is section 315, R.S. of Missouri 1929 (Mo.St.Ann. § 315, p. 200). It provides: "If a man, having by a woman a child or children, shall afterward intermarry with her, and shall recognize such child or children to be his, they shall thereby be legitimated."

The evidence was oral, documentary, and by depositions. Appellant proceeds here on the theory there was ample evidence to justify her recovery under the statute and decisions of both Missouri and Kansas. If that were the test on appeal in this state, we might agree with appellant. When the evidence is all documentary or by deposition, this court can examine the evidence and weigh it as intelligently as the district court, and hence we do review it. Federal Agency Inv. Co. v. Baker, 122 Kan. 460, 252 P. 262; Adams v. Morgan, 142 Kan. 865, 871, 52 P.2d 643. That, however, is not the rule where evidence is both oral and documentary and is conflicting. Adams v. Morgan, supra.

It will serve no useful purpose to narrate the evidence in detail. It has been carefully examined to ascertain whether the...