Stoltz v. Doering

• Decision Date: 22 January 1885
• Parties: MARY E. STOLTZ et al.v.HENRY DOERING.
• Court: Illinois Supreme Court

112 Ill. 234

1885 WL 8146 (Ill.)

MARY E. STOLTZ et al.

v.HENRY DOERING.

Supreme Court of Illinois.

Filed at Jan. 22, 1885.

APPEAL from the Circuit Court of DeKalb county; the Hon. C. W. UPTON, Judge, presiding. Mr. HARRY RUBENS, and Mr. EDWARD ROBY, for the appellants:

A charge of illegitimacy must be supported by direct and irrefutable evidence. It must be conclusively proved. Canjolle v. Ferrie, 23 N. Y. 90.

No evidence of reputation in a community can be received to show illegitimacy. The evidence of a servant in the family as to reputation in the family is inadmissible. Reputation, if proved, can only be proved by a member of the family, or by proving the declarations and statements of blood relations. Berkely Peerage case, 4 Campb. 419; Hubback on Succession, 654-656; 1 Phillips on Evidence, (C., H. & E. notes,) 270, 273; 2 Id. 279-281; 1 Greenleaf on Evidence, sec. 103, note 1.

The testimony denying the marriage of John Doering to the mother of defendant, is wholly inadmissible. 1 Greenleaf on Evidence, sec. 103, note 1; 1 Phillips on Evidence, (C., H. & E. notes,) 270-273; 2 Id. 279-281; Hubback on Succession, 654-656; Berkely Peerage case, 4 Campb. 419; Pier v. Pier, 2 H. L. C. 354.

As to a marriage at common law, and the evidence tending to prove it, see Hebblethwaite v. Hepworth, 98 Ill. 132; Port v. Port, 70 Id. 486; Canjolle v. Ferrie, 23 N. Y. 107; 2 Greenleaf on Evidence, sec. 462; 1 Bishop on Marriage and Divorce, secs. 13, 457, note, 1521.

The letters also show that every member of Doering's family recognized the defendant as a legitimate daughter, and they are evidence of that fact. 1 Greenleaf on Evidence, secs. 104-106; Berkely Peerage case, 4 Campb. 416.

The long continued adverse possession of the land by the husband, under claim of right, is a bar to the action. It is not necessary that any deed should pass, but only that there should be an adverse claim, which has a color of right or title for its support. Chickering v. Failes, 26 Ill. 507; Griffin v. Marine Co. 52 Id. 145. There was the actual residence thereon, and title deducible of record from the United States, sufficient under the statute of 1835. Martin v. Judd, 81 Ill. 488; Jandon v. McDowell, 56 Id. 53.

Counsel also contended that as Mrs. Stoltz was made and treated as a legitimate heir of her father, and as such succeeded to his estate in Germany, she should also take as his heir here. Ross v. Ross, 129 Mass. 243; Miller v. Miller, 91 N. Y. 315; Miller v. Williams, 66 Ill. 91; Keegan v. Geraghty, 101 Id. 26.

Mr. A. J. HOPKINS, Mr. N. J. ALDRICH, and Mr. F. H. THATCHER, for the appellee:

Foreign laws, when relied on, must be pleaded and proved. This is the only way they can be noticed. Chumasero v. Gilbert, 24 Ill. 294; Chenot v. Lefevre, 3 Gilm. 640; Smith v. Whittaker, 23 Ill. 367; Palmer v. Marshall, 60 Id. 290.

Under the English law, illegitimate children can not take by descent, for they have not, in law, inheritable blood. 4 Kent's Com. 436; 1 Blackstone's Com. 458; Blacklaws v. Milne, 82 Ill. 505.

The law of descent is the subject of legislative control until the estate becomes vested by death. Cooley's Const. Lim. 359.

The descent and heirship of real estate are governed exclusively by the law of the country in which it is actually situate. Story on Conflict of Laws, secs. 483, 434, 448, 454, 430; Wharton on Conflict of Laws, sec. 296; United States v. Crosby, 7 Cranch, 115; McCormack v. Sullivant, 10 Wheat. 203; Lingen v. Lingen, 45 Ala. 412.

As to common law marriage, reference is made to Bishop on Marriage and Divorce, (6th ed.) sec. 262. That copula does not make them married, see Peck v. Peck, 12 R. I. 435; Cheeney v. Arnold, 15 N. Y. 345; Duncan v. Duncan, 10 Ohio St. 181; Holmes v. Holmes, 1 Abb. 525. When marriage is inferred from cohabitation, the presumption may be destroyed by evidence of the subsequent and long continued separation of the parties. 2 Greenleaf on Evidence, sec. 464.

There is no bar shown under any statute of limitations, there is no color of title under the act of 1839, and there is no connected chain of title deducible of record under the act of 1835.

Mr. JUSTICE CRAIG delivered the opinion of the Court:

This was an action of ejectment, brought by Henry Doering, in the circuit court of DeKalb county, against Mary Elizabeth Stoltz, and Jacob Stoltz, her husband, to recover a certain tract of land in DeKalb county, which was owned originally by John Doering, who died intestate, seized of the land, in 1860. The cause was tried, by agreement, before the court, without a jury, and judgment was rendered in favor of the plaintiff, and defendants appealed.

Mary Elizabeth Stoltz, as appears from the evidence, was the daughter and only child of John Doering, who died seized of the land; but she was an illegitimate child, and upon this ground, plaintiff, who was a brother and next of kin of deceased, contends that the daughter can not inherit from the father, and that he, as sole heir of his brother, is entitled to recover. The plaintiff resides in Germany. The defendants were residing in this country at the time John Doering died, and upon his death they went into the possession of the land, and have remained in possession ever since, paying all taxes, and claiming to be the owners.

It appears from the evidence, that in 1831 John Doering, then a young unmarried man, resided in the province of Hesse Darmstadt, Germany; that he became acquainted with a girl residing at the same place, named Mary Webber. These parties became attached to each other, and were engaged to be married, and in April, 1832, Mary Webber gave birth to a female child,--now Mary Elizabeth Stoltz, the defendant in this action. John Doering was the father of the child. He never, however, married Mary Webber, but, in 1834, left Germany and came to this country. He settled in DeKalb county, where, in 1845, he purchased the land in question. It is plain, from the evidence, that Doering always, after the birth of Mary Elizabeth, recognized and treated her as his daughter. In 1849 he had her brought to this country at his own expense, and introduced her to his friends and acquaintances as his child and daughter. Indeed, in the record of births and baptisms of the evangelical diocese of Meichs, in Germany, where Doering and Mary Webber resided, and where the child was born, John Doering acknowledged, in a public manner, in writing, over his own signature, that he was the father of the child.

The public acknowledgment of John Doering, in connection with the action taken in the parochial church by the mother and father of the child, it is contended, gave her the right of inheritance under the laws of the province in Germany where they resided, and as she became entitled to inherit there, she became the heir of John Doering, and as such entitled to inherit his property wherever situate. Conceding that the defendant, under the laws of the province in Germany where she was born and baptized, could inherit property situated in that province from John Doering, does that fact confer upon her the right of inheritance here?

At common law a bastard has no right of inheritance. In the eyes of the law, bastards are not regarded as children for civil purposes. Blackstone, (vol. 1, page 458,) in discussing the rights of bastards, says: “The rights are very few, being only such as he can acquire, for he can inherit nothing, being the son of nobody, and sometimes called filius nullius, sometimes filius populi.” In Blacklaws v. Milne, 82 Ill. 505, it was held that the common law rule which excluded illegitimate children from inheriting, was in force in this State. Under our statute in force at the time of the death of John Doering, a bastard could not inherit from a father unless such father had married the mother of the child, and acknowledged the child as his own. Under section 65, chapter 109, Gross' Statutes of 1869, a bastard might inherit from the mother, but this statute confers no right of inheritance from the father.

The first question then to be determined is, whether the rights of the defendant, Mary Elizabeth Stoltz, are to be determined by the laws of the province of Germany, where she was born and baptized, or are those rights to be determined by the laws of this State, where the land involved is located. The general rule in regard to the descent of real estate is, that it is governed by the law of the country where it is located. Story on Conflict of Laws, states the law on this subject (sec. 483,) as follows: “The descent and heirship of real estate are exclusively governed by the law of the country within which it is actually situated. No person can take except those who are recognized as legitimate heirs by the laws of that country; and they take in...