Simpson v. Blackburn

• Decision Date: 18 April 1967
• Docket Number: No. 1144,No. 32735,1144,32735
• Citation: 414 S.W.2d 795
• Parties: Geneva Leona SIMPSON, Plaintiff-Respondent, v. George E. BLACKBURN, Clarence D. Blackburn, William Russell Blackburn, Grace M. Kezer, James Merlin Kelsick, Individually and as Administrator of the Estate of Omer Creighton Blackburn, Estate, in the Probate Court of Audrain County, Missouri, Defendants-Appellants.
• Court: Missouri Court of Appeals

Page 795

414 S.W.2d 795

Geneva Leona SIMPSON, Plaintiff-Respondent, v. George E. BLACKBURN, Clarence D. Blackburn, William Russell

Blackburn, Grace M. Kezer, James Merlin Kelsick,

Individually and as Administrator of the Estate of Omer

Creighton Blackburn, Estate No. 1144, in the Probate Court

of Audrain County, Missouri, Defendants-Appellants.

No. 32735.

St. Louis Court of Appeals, Missouri.

April 18, 1967.

Don C. Carter, Sturgeon, Paul W. Bennett, Vandalia, for appellants.

Granville Collins, Fulton, William W. Van Matre, Jr., Van Matre & Van Matre, Mexico, for respondent.

CLEMENS, Commissioner.

This law suit is an effort by plaintiff Geneva Leona Simpson to be declared an heir of Omer C. Blackburn, who plaintiff claims was her great uncle. The trial court found for plaintiff, and the defendant administrator and other heirs appealed to the Supreme Court, asserting that the issue involved plaintiff's claim to a one-seventh share of a $200,000 estate. The transcript did not affirmatively show the value of the estate, and the Supreme Court transferred the case to this court.

Two-sevenths of Omer C. Blackburn's estate will pass to the heir or heirs of his deceased brother, John A. Blackburn. John A. Blackburn left one daughter, defendant Grace M. Kezer. His only son, Clark P. Blackburn, predeceased him. Plaintiff claims she is the legitimated, adulterine bastard child of Clark Blackburn, her mother's paramour, whom her mother later married. The defendants contend plaintiff is the child of James Cecil Gilman, to whom plaintiff's mother was married at the time of plaintiff's birth.

The ultimate issue is one of law: Is plaintiff an heir of Omer C. Blackburn? That turns on the factual issue of her paternity. If plaintiff is the child of James Gilman, husband of her mother when plaintiff was conceived and born, she is not a Blackburn heir. But if plaintiff is the actual and recognized child of Clark Blackburn, her mother's paramour, then plaintiff is an heir of Omer C. Blackburn.

To establish this claimed status, plaintiff relies on § 474.070 V.A.M.S. It declares that if a man has a child by a woman whom he afterward marries and recognizes the child to be his, the child is thereby legitimated. This statute applies not only to a child born out of wedlock, but also to a child, like plaintiff, born in wedlock but sired by a man who was not her mother's husband. Nevins v. Gilliland, 290 Mo. 293, 234 S.W. 818(4). The three essential elements of such legitimation are actual paternity, intermarriage and recognition. Lowtrip v. Green, 363 Mo. 619, 252 S.W.2d 524(1). The defendants concede these legal principles but contend, primarily, that the evidence is insufficient to show that Clark Blackburn was the plaintiff's father. Defendants invoke 'the strongest presumption known to the law': that a child born in wedlock is the child of the marriage. Bernheimer v. First Nat. Bank of Kansas City, 359 Mo. 1119, 225 S.W.2d 745(10).

With these principles of law to be applied to the facts of the case, we shall detail the evidence.

We first note the scope of our appellate review. We must view the case upon both the law and the evidence, weigh the evidence, and render such judgment as the trial court ought to have given. The judgment shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the witnesses' credibility. Civil Rule 73.01(d), V.A.M.R. The trial judge was steeped in the atmosphere of the trial, saw and heard the witnesses, heard the arguments of counsel, and was in a position to interpret and appreciate the evidence with all its shades of meaning better than we can do merely by reading and studying a written report of it. He had in his presence the living thing; we have but a dead image of it.

Plaintiff's mother, nee Laura McNanny, married James Gilman in 1921. They lived on a rented farm in Callaway county. Laura testified that she ceased having marital relations with her husband in 1922 and in 1924 began an adulterous relationship with a neighbor, Clark Blackburn. Laura became pregnant and left her husband. Seven months after the separation Laura gave birth to plaintiff, on April 6, 1925. Then seven months after the birth, Laura was divorced from James Gilman; four days later she and Clark Blackburn were married. Details of this part of the case will be developed later, after we relate the evidence concerning Clark Blackburn's recognition of plaintiff as his daughter.

Clark Blackburn and Laura were married and lived together from November 11, 1925, until he was granted a divorce from her in 1934. A month or so after their marriage Clark and Laura Blackburn took plaintiff, then eight months old, to the farm home of his parents, John A. and Sally Blackburn. Laura testified this was done because Clark was nervous around children. Some arrangement for plaintiff's permanent care was made, and plaintiff thereafter made her childhood home with John and Sally Balckburn.

During her childhood the plaintiff was verbally acknowledged as Clark Blackburn's daughter by him and by his parents, and at times by his only sister, defendant Grace Kezer.

Plaintiff's name 'Geneva Leona Blackburn' is consistent with her claim of recognition by Clark Blackburn. The name 'Geneva Blackburn' was used when plaintiff started school. Plaintiff's original birth certificate showed only the surname 'Gilman.' Then in 1938, when plaintiff was thirteen years old, the name 'Geneva Leona' was added to her birth certificate. (The documentary evidence to support this addition had been destroyed.) 'Geneva Leona' was the same name Clark Blackburn had given several years before to a previous daughter who died in infancy. Next, in 1944, a new birth certificate was issued showing plaintiff's name as 'Geneva Leona Blackburn.' This certificate was issued on the strength of Clark Blackburn's affidavit of July 11, 1944, whereby he swore: 'I further certify that Geneva Leona Blackburn was born April 6, 1925, and that I am her father.'

Plaintiff offered other documentary evidence to show recognition. In 1934, when plaintiff was nine years old, Clark Blackburn sued Laura for divorce. In his verified petition he stated that one child, Geneva Leona Blackburn, had been born of the marriage and was being reared by his parents. He prayed for her custody. At the divorce trial Clark Blackburn testified to his paternity of plaintiff as he had alleged in his petition. By the decree, Clark was divorced from Laura and granted custody of the child. By Clark Blackburn's will, executed in 1938 and probated in 1949, he bequeathed one dollar 'to my daughter, Geneva Leona Blackburn.' By then Clark had divorced Laura and married Nellie Martin, to whom he left the residue of his estate. The defendants showed that a month before his death in 1949, when plaintiff was twenty-four years old, Clark Blackburn executed another affidavit. Therein he accused plaintiff of 'making trouble' for his family and denied he had ever recognized or claimed her as his daughter.

So much for Clark Blackburn's own conduct showing recognition of plaintiff as his daughter. As said, his family participated in this recognition. They usually spoke and referred to one another by such family names as 'Daddy,' 'Grandfather,' 'Grandmother,' and 'Aunt Grace.' Plaintiff was usually spoken of as 'my daughter,' 'our granddaughter' or 'Clark's daughter.' Evidence of other conduct of the Blackburn family bears out plaintiff's claim of recognition as Clark Blackburn's daughter.

For nine years plaintiff went to the Fulton public schools under the name of Geneva Blackburn. The records showed 'Parent or Guardian--John A. Blackburn.' Then in 1938 plaintiff moved to Wellston to the home of defendant Grace Kezer, who enrolled her in high school. Added information on the Wellston school records showed Laura's parents were 'C.P. and Laura Blackburn,' and that she was living with 'Grace M. Kezer--aunt,' at 6335 Wellsmar avenue. Mrs. Kezer denied giving this information to the school and denied referring to plaintiff as her niece.

On three occasions before this lawsuit plaintiff participated without objection in probate proceedings as an heir of the Blackburn family. The first probate proceeding concerned the will of John A. Blackburn, Clark's father. By his will, executed and probated in 1948, John A. Blackburn gave land and money 'to my great grandsons,' named children of plaintiff. He also gave plaintiff a dwelling for use during the minority of one of her children. Next, there were probate proceedings of the will of Clark Blackburn, previously mentioned. In applying for letters testamentary in 1949, Clark's widow, Nellie Blackburn, named plaintiff as his daughter. Last, in 1955 Maude O. Hazlett died intestate. She was predeceased by her sister, Mrs. John A. (Sally) Blackburn, mother of Clark Blackburn, also deceased. On information given to the administrator by someone, he listed Grace Kezer as the daughter and only living child of Sally Blackburn and plaintiff as the daughter and only child of Clark Blackburn, deceased son of Sally Blackburn. With Grace Kezer's knowledge of this information, she and plaintiff shared equally in one-tenth of the distribution of Maude Hazlett's estate.

Defendant Grace Kezer and three other witnesses testified to conversations with Clark Blackburn in which he said plaintiff was not his child. These conversations were somewhat vague as to times and circumstances. At least part of them were made after the apparent breach of relationship between Clark Blackburn and the plaintiff that had occurred when he made his last affidavit in 1949, a month before he died. These statements were offset by ten other witnesses who testified for plaintiff. They quoted Clark Blackburn's and other Blackburns' statements referring to plaintiff as Clark and Laura's daughter.

This was the evidence of Clark Blackburn's recognition of plai...