Robinson v. Ruprecht

• Decision Date: 19 June 1901
• Citation: 61 N.E. 631,191 Ill. 424
• Parties: ROBINSON et al. v. RUPRECHT et al.
• Court: Illinois Supreme Court

191 Ill. 424

61 N.E. 631

ROBINSON et al.

v.RUPRECHT et al.¹

Supreme Court of Illinois.

June 19, 1901.

Appeal from circuit court, Cook county; E. F. Dunne, Judge.

Bill by David Robinson and others against Martha J. Ruprecht and others. From a decree for defendants, complainants appeal. Affirmed.S. S. Gregory, John C. Spooner, and A. L. Sanborn, for appellants.

Frank Ives and Vincent D. Wyman, for appellees.

BOGGS, J.

This was a bill in chancery filed in the circuit court of Cook county to partition the real estate of which Curtis E. Robinson, Sr., died seised. The appellants, a brother, a sister, and four nieces of the said deceased, filed the bill, and therein alleged that said deceased left neither widow, child, children, descendants of child of children, father or mother, him surviving, and that they and the appellee Nathan S. Robinson, a brother of said deceased, who refused to join in the bill as a complainant, and was thereupon made a defendant, were the only legal heirs of said deceased, and were, under the statutes of descent, the owners, as tenants in common, of the real estate of which he died seised. The bill alleged that the appellees, except said Nathan S., claimed to be the lawful children and only legal heirs of said deceased. The relief asked by the bill was that the legal title to the real estate of which the said deceased was the owner should be declared to be in the complainants and said Nathan S. as tenants in common, and that a decree in partition be entered allotting it to them in severalty, according to their alleged respective interests therein. Prior to the institution of the suit for partition the appellants, as complainants, filed in the circuit court of the United States for the Northern district of Illinois a bill in chancery against these appellees, except said Nathan S. Robinson, who was not made a party complainant or defendant to the proceeding in the United States court, Charles Steinbrecher, and Theodore Schintz. Before the case at bar was reached for hearing in the trial court, counsel for appellants moved to stay further proceedings therein until the cause pending in the circuit court of the United States could be heard and disposed of in the federal court. The ground of the motion was that the two cases involved the same question, and that that in the United States court was the prior proceeding. The denial of the motion by the court is complained of as error. The proceeding in the United States court related only to the personal property of the estate of the said Curtis E. Robinson, Sr. The proceeding at bar has relation only to the real estate. The parties in the two actions were not the same. The prosecution to a final termination of either suit did not involve any conflict of authority between the respective courts in which the suits were pending. It was not error in the state court to decline to await the termination of the litigation in the federal court. The circuit court of Cook county proceeded to the disposition of the cause pending before it, and, after a full hearing, entered a decree declaring the said deceased left, him surviving, the appellees, Martha J. Ruprecht, Bessie L. Howison, and Curtis E. Robinson, Jr., his children and only heirs at law, and ordered that the bill for partition of the premises filed by the appellants be dismissed. This is an appeal to bring the decree of the circuit court in review in this court.

In 1869 said Curtis E. Robinson, Sr., without pretense of marriage, began living and cohabiting with one Johannah Schoeninger in the city of Chicago as though the relation of husband and wife existed between them. The appellee Martha Ruprecht (née Robinson) was born June 22, 1870, while this illicit relation continued. On the 24th day of April, 1873, the said Curtis E., Sr., applied to the clerk of the county court of McHenry county, Ill., for a license authorizing the ceremonies of marriage to be celebrated between himself and said Johannah. A license was issued accordingly, and on the same day the marriage was celebrated between them before a justice of the peace of said McHenry county. They continued to live and cohabit together as husband and wife until the death of said Johannah, which occurred April 13, 1891,-a period of 18 years. They lived during all these years in the city of Chicago, and deported themselves as husband and wife. Curtis E., Sr., survived Johannah but about a year, and died April 20, 1892. The appellees Curtis E., Jr., and Bessie L. Howison were born to them after the celebration of the marriage. Prior to the celebration of the marriage both parties thereto had been previously married. Mary J., the wife of said Curtis E., Sr., by the prior marriage, whom he had separated from in the state of Massachusetts, was then living and undivorced, as he well knew. Gottlieb Schoeninger, the husband of said Johannah, was then in fact living somewhere in the state of Pennsylvania; but it seems to be well established she had been informed, and upon reasonable grounds believed, that he was dead, and in good faith believed she had full right to enter into the marriage relation. On December 27, 1875, Mary J., the legal wife of said Curtis E., Sr., departed this life at her home in the state of Massachusetts; and within a few months thereafter appellee Nathan S. Robinson came from Massachusetts to Chicago and informed said Curtis E. Sr., and said Johannah, that said Mary J. was dead. Gottlieb Schoeninger, husband of said Johannah, survived until the 13th day of May, 1890, at which date he died at Nazareth Pa. He had entered into marriage with another woman in 1870 at Easton, Pa. The fact that said Schoeninger was living at the time of their marriage in McHenry county never reached either said Curtis E., Sr., or said Johannah. Both died resting under the belief which they entertained at the time of the celebration of the marriage between them in McHenry county in 1873,-that he had died previous thereto.

The cohabitation of said Curtis E., Sr., and said Johannah was meretricious in its inception. The celebration of the marriage contract between them in 1873 in McHenry county did not change their adulterous relation, for the reason that the said Curtis E., Sr., had, as he well knew, a legal wife. They, however, continued to live together as husband and wife for nearly 16 years after the death of said Mary J., the wife of said Curtis E., Sr., and for about a year after the death of Gottlieb, whose death removed the only impediment to their legal marriage. Their children, Martha, Curtis E., Jr., and Bessie, the appellees, were treated and acknowledged by both parents as true and lawfully begotten children during all those years.

Sections 2 and 3 of chapter 39 of our statutes, entitled ‘Descent’ (Hurd's Rev. St. 1899, p. 653), are as follows:

‘Sec. 2. An illegitimate child shall be heir of its mother and any maternal ancestor, and of any person from whom its mother might have inherited, if living; and the lawful issue of an illegitimate person shall represent such person, and take, by descent, any estate which the parent would have taken, if living. * * * Second. The estate, real and personal, of an illegitimate person, shall descend to and vest in the widow or surviving husband and children, as the estate of other persons in like cases. Third. In case of the death of an illegitimate intestate, leaving no child or descendant of a child, the whole estate, personal and real, shall descend to and absolutely vest in the widow or surviving husband. Fourth. When there is no widow or surviving husband, and no child or descendants of a child, the estate of such person shall descend to and vest in the mother and her children, and their descendants-one-half to the mother, and the other half to be equally divided between her children and their descendants, the descendants of a child taking the share of their deceased parent or ancestor. Fifth. In case there is no heir as above provided, the estate of such person shall descend to and vest in the next of kin to the mother of such intestate, according to the rule of the civil law. Sixth. When there are no heirs or kindred, the estate of such person shall escheat to the state, and not otherwise.

‘Sec. 3. An illegitimate child, whose parents have intermarried, and whose father has acknowledged him or her as his child, shall be considered legitimate.’

The law raises the presumption that Gottlieb, the legal husband of said Johannah, was the father of her children. The presumption is not, however, conclusive, but is rebuttable. It appeared in the proof that there was no possibility of access to the mother on the part of the said Gottlieb at the time of the conception of either of these appellee children. In the course of nature, he could not have been the father of either of them. In such state of case, the presumption cannot prevail. 1 Greenl. Ev. § 128, note ‘c’; 3 Am. & Eng. Enc. Law (2d Ed.) 876, 877. The said Curtis E., Sr., was properly regarded by the chancellor as the father of the appellees Martha J. Ruprecht, Curtis E. Robinson, Jr., and Bessie L. Howison.

The contention of the appellants is that if it be conceded that the said Curtis E., Sr., was the father of said appellees, they were at birth illegitimate; that they were begotten and born while their parents were living in a state of adultery, and for that reason said section 3 does not apply to them. The argument is that, at the common law, legitimation of children born out of wedlock was unknown, and that all legislation admitting illegitimate children to the right of succession, being in derogation of the common law, must be strictly construed, and hence that such legislation should not be construed to apply to children born of parents who at the time of the conception and birth of such children, in violation of their marriage vows and of the Criminal Code of the state, were living in a state of adultery. Counsel cite,...