Smith v. Smith

• Decision Date: 05 July 1919
• Docket Number: 22,268
• Citation: 105 Kan. 294,182 P. 538
• Parties: ROY SMITH, Appellant, v. WILLIAM P. SMITH et al., Appellees
• Court: Kansas Supreme Court

182 P. 538

105 Kan. 294

ROY SMITH, Appellant, v. WILLIAM P. SMITH et al., Appellees

No. 22,268

Supreme Court of Kansas

July 5, 1919

Decided July, 1919.

Appeal from Douglas district court; CHARLES A. SMART, judge.

Judgment reversed and cause remanded.

SYLLABUS

SYLLABUS BY THE COURT.

1. DESCENTS AND DISTRIBUTIONS--Illegitimate Child--Inheritance. Under the statute of descents and distributions, an illegitimate child who has been duly recognized by his father may inherit through the father from his collateral kindred the same as a child born in lawful wedlock.

2. SAME -- Illegitimate Child -- Paternity -- Recognition by Father. In this action the paternity of an illegitimate child was established beyond question, but the sufficiency of the recognition by his father to enable him to inherit from and through the father was contested. Upon the evidence, it is held that the recognition of the father was so general and notorious as to meet the requirements of the statute.

R. M Hamer, H. E. Ganse, and W. W. Parker, all of Emporia, for the appellant.

John J. Riling, and E. T. Riling, both of Lawrence, C. C. Crabbe, E. W. Johnson, H. H. Crabbe, all of London, Ohio, and J. E. Bowman, of Springfield, Ohio, for the appellees.

Johnston, C. J. Burch, J. dissenting.

OPINION

JOHNSTON, C. J.:

This case was brought for the partition of real property, and the principal questions presented for determination are, first, whether Roy Smith, the illegitimate son of Robert Smith, was so recognized by his father as to be entitled to inherit from him; and second, whether, under the statute, an illegitimate child may inherit from the collateral kindred of his father.

There is little of any controversy as to the paternity of the plaintiff. At the trial counsel for defendant, in answer to a question asked by the court, stated that the evidence in the case would persuade the court that Robert Smith was in fact the father of the plaintiff, but it was and is strongly contended that the recognition of paternity by the father was not general and notorious. About forty years ago, the plaintiff was born near London, Ohio. His father, Robert Smith, resided with his parents, Jacob and Amanda Smith, near London. Plaintiff's mother, Felecia Phillips, lived with her parents, who were neighbors of the Smith family. Robert and Felecia were lovers, frequently associating together in courtship, and were engaged to be married. Robert had suffered a stroke of some kind, and for that reason their marriage was postponed. Some time about 1879 the plaintiff was born, and he was given his father's name. About two or three years after the birth of plaintiff Robert suffered another stroke and died suddenly. Shortly after the death of Robert his parents took the plaintiff into their home, treating him and speaking of him as a grandson. In his will Jacob Smith left land and money to plaintiff, designating him as "Roy Smith, son of Felecia Phillips, who lives with me." Property was also left him by his grandmother. A guardian of the person and estate of plaintiff was appointed in 1895, and in the record of the appointment by the court it is recited that he was sixteen years old and the son of Robert Smith. The trial court gave judgment for the defendant, but as substantially all of the testimony is in depositions, this court must examine the evidence and determine the questions of fact for itself. Although the paternity of the plaintiff was shown beyond question, that is not sufficient to establish his right of inheritance. There was no proof that the relationship was acknowledged in writing, and to inherit it must therefore be shown that the recognition of the father was general and notorious. (Gen. Stat. 1915, § 3845.) The proof of recognition is not as full and satisfactory as might be desired, but it is the view of the court that, under the circumstances, it was sufficient to meet the requirements of the statute. The brief time which plaintiff's father lived and the long period that has elapsed since the occurrences sought to be shown made it somewhat difficult to prove recognition. In McLean v. McLean, 92 Kan. 326, 140 P. 847, where a like question was under consideration, it was said:

"The circumstances of each case are, of course, different, and the gist of the decisions is that the extent of recognition necessary to meet the statutory requirements depends in some measure upon the circumstances of each case. Where frequent opportunities for such recognition are presented for a long period more is required than where such opportunities are less in number or in a more limited time." (p. 330.)

Many witnesses stated that it was a matter of general report in the neighborhood, and among the people with whom Robert mingled, that he was the father of plaintiff. A witness named Rea, testified that he knew the father and mother of plaintiff, and that on one occasion when he met Robert Smith on the highway near the Phillips home, he had the baby in his arms, and that he talked with him for a time, and during the conversation he spoke of the baby as his boy. He took the baby back to the Phillips home and returned to assist the witness in driving cattle. Reason Castle, a servant on the Smith farm, stated that he knew Robert well, and that while riding home from town in a wagon he heard Robert say to another person in the wagon that the child was his baby, and he wanted to take care of him. The same witness said that he was living at Smith's after Robert's death, and that Jacob Smith directed him to hitch up the team, saying he was going to bring Robert's son to his home to be taken care of by his grandmother, and that he could take care of him at home cheaper than anywhere else. That evening the boy was brought to the Smith home, and Jacob afterwards spoke of him as his little grandson. Another witness, Scott Wheeler, who lived in the neighborhood, and was well acquainted with Robert Smith and Felecia Phillips, said that he had a conversation with Robert after the baby was born, during the time that it was common report in the community that Robert was the father of the child, in which Robert stated that the baby was his son, and he would marry the mother, only his father would not let him do so. This witness testified that he was present when the baby was brought to Smith's home, and that the defendant, who was present, was greatly displeased at the act, and Jacob remarked, "Will is mad because I brought Bob's boy here." And afterwards the defendant remarked to the witness, "Well, they had to bring that damned boy of Bob's here." John Phillips, a brother of Felecia, testified that Robert Smith continued to visit at the Phillips home after the baby was born, and that he would hold the baby in his arms and call him his boy. He also testified that in the Phillips home there was talk to the effect that Robert and Felecia were to be married, but that Robert had a stroke before the baby was born and the marriage was therefore postponed. Another witness, Lloyd Wheeler, testified that he had seen Robert and Felecia together in the town of London many times after the birth of the baby and when it was generally said that Robert was the father of plaintiff. The circumstances tend to show that Robert must have made a like acknowledgment to his father and mother, thereby inducing them to take the boy into their home and to speak of and treat him as Robert's son. If Robert had denied the relationship, it is quite unlikely that the grandparents would have taken into their family one reputed to be Robert's son, and whom they believed was the bastard son of another. Letters were written by Robert's mother to Felecia, the import of which was that she recognized that plaintiff was Robert's son, and that she had a duty to perform in caring for him. In her letters she attempted to allay any fear of Felecia that Roy would not be well cared for. She asked for his exact age, saying "I will have it written in the Bible. I do not know how old he was when Bobby died or I could tell." There was evidence given in behalf of the defendant, some of which tended to discredit a part of the plaintiff's evidence, but most of it was of a negative character, to the effect that the witnesses knew Robert Smith and had not heard of his recognition of the plaintiff.

The proof necessary to establish the recognition required by statute depends, as we have seen, upon the circumstances of each case. In McLean v. McLean, supra, where the paternity of the child was contested, the recognition was sustained, although there was no more proof of it than there was in the present case. In relation to the acknowledgment necessary to meet the requirements of the statute, it has been said:

"While such recognition must have been general and notorious, and the proof thereof must be sufficient to convince the mind, it is not necessary that it should have been universal or made known to all or to a majority of the community, but it is sufficient where the proof shows that the father frankly admitted the relationship when there was occasion for him to speak and made no attempt to conceal the same, although it also appears that there are many of his friends, relatives, and acquaintances, who have no knowledge thereof," etc. (7 C. J. 949.)

Much reliance is placed by defendant on the case of Record v Ellis, 97 Kan. 754, 156 P. 712, and that authority does tend to sustain the theory of the defendant. In that case, however, the evidence of recognition was not so persuasive and convincing as in the present one. There the alleged father lived about forty years after the child was born, ten years of that time was spent in Indiana, where he was married, and there was no proof of acknowledgment of paternity in Indiana,...