Thom v. Bailey

• Decision Date: 04 November 1970
• Citation: Thom v. Bailey, 471 P.2d 809, 3 Or.App. 97, 90 Adv.Sh. 1635 (Or. App. 1970)
• Parties: In the Matter of the Estate of James Elbridge Elliott, deceased. Meta Marie THOM, appearing by and through Dorothy Jane Keil, guardian of her estate, Respondent, v. Gladys BAILEY, Robert James Bailey, Maurine Elliott Williams and Mary Lee Bailey Farley, Appellants. Meta Marie THOM, appearing by and through Dorothy Jane Keil, guardian of her estate, Respondent, v. Gladys BAILEY and Robert James Bailey, her husband, Maurine Elliott Williams and John Doe Williams, her husband, Mary Lee Bailey Farley and John Doe Farley, her husband, Appellants, Carol Joan Elliott Ames and John Doe Ames, her husband, Defendants. In the Matter of the Estate of James Elbridge Elliott, deceased. Meta Marie THOM, appearing by and through Dorothy Jane Keil, guardian of her estate, Respondent, v. Gladys BAILEY, Robert James Bailey, Maurine Elliott Williams and Mary Lee Bailey Farley, Appellants, Carol Joan Elliott Ames, Proponent.
• Court: Oregon Court of Appeals

Page 809

471 P.2d 809

3 Or.App. 97

In the Matter of the Estate of James Elbridge Elliott, deceased.

Meta Marie THOM, appearing by and through Dorothy Jane Keil,guardian of her estate, Respondent, v.Gladys BAILEY, Robert James Bailey, Maurine Elliott Williams and Mary Lee Bailey Farley, Appellants.

Meta Marie THOM, appearing by and through Dorothy Jane Keil,guardian of her estate, Respondent, v.Gladys BAILEY and Robert James Bailey, her husband, Maurine

Elliott Williams and John Doe Williams, her

husband, Mary Lee Bailey Farley and John

Doe Farley, her husband, Appellants,

Carol Joan Elliott Ames and John Doe Ames, her husband, Defendants.

In the Matter of the Estate of James Elbridge Elliott, deceased.

Meta Marie THOM, appearing by and through Dorothy Jane Keil,guardian of her estate, Respondent, v.Gladys BAILEY, Robert James Bailey, Maurine Elliott Williams and Mary Lee Bailey Farley, Appellants,Carol Joan Elliott Ames, Proponent.

Court of Appeals of Oregon, Department 1.

Argued and Submitted April 27, 1970.

Decided June 25, 1970.

Rehearing Denied July 21, 1970.

Review Granted Nov. 4, 1970.

William E. Hanzen, Pendleton, argued the cause for appellants, on the briefs were Isaminger & Hanzen, Pendleton, and George W. Roberts, Walla Walla, Wash.

Robert W. Collins, Pendleton, argued the cause for respondent, with him on the brief were Sherwood & Tugman, Walla Walla, Wash.

Before SCHWAB, C.J., and FOLEY and BRANCHFIELD, JJ.

FOLEY, Judge.

This is a probate proceeding in which the trial court found that the plaintiff, Meta Marie Thom, was the daughter of the deceased, James Elbridge Elliott, and as such was his sole heir and entitled to inherit his entire estate.Defendant, the personal representative of James Elbridge Elliott's estate, appeals, contending that the trial court erred (1) in denying her motion to dismiss the proceedings, and (2) in finding that the evidence supported plaintiff's claim.

James Elbridge Elliott died intestate on April 24, 1967.He and Dorothy Jane Thom(now Keil) were never married, but had had sexual intercourse once during April 1953.A daughter, Meta Marie Thom, the plaintiff here, was born out of wedlock to Dorothy Jane Thom on December 30, 1953.

After Elliott's death probate proceedings were commenced with Gladys Bailey, Elliott's mother, as personal representative.Thereafter Meta Marie Thom filed a claim of heirship and petition for determination of heirship asserting that she is the natural daughter of James Elbridge Elliott and as such is his sole heir and is entitled to receive all property of his estate.She also filed a complaint in equity praying that the court enter a decree declaring her to be the sole heir.The parties stipulated to a consolidation of the equity and probate cases.The defendant, Elliott's mother, denied the paternity and moved for a dismissal of the proceedings, contending that paternity must be formally established under ORS 109.070, and that a determination of heirship under ORS 117.510 et seq. is not such a method of establishing paternity.The circuit court denied the motion and found for plaintiff.

As pointed out in Walker v. Sheriff, Or.App., 90 Adv.Sh. 1069, 468 P.2d 655(1970), the procedure for determining heirship, provided in ORS 117.510 et seq., is to be utilized if there is doubt or uncertainty as to who are heirs.That is precisely the procedure followed here.The trial court properly denied the motion to dismiss the proceedings.

As to the second assignment of error, a detailed examination of the facts will be necessary.

Plaintiff's mother, Dorothy Jane Thom, first met James Elbridge Elliott in early April 1953.He was 24, she was 23, and both were single.She testified that the next time she saw Elliott was April 11, 1953.(Elliott, by deposition given in September 1954, said it was April 18, 1953.)They agree that on this second meeting they took a midnight ride in Elliott's automobile and parked on a back road.She claims she was raped and that the sex act occurred.Elliott's version of the incident as related in his deposition was to the effect that she was more or less cooperative.He stated that he had intercourse with her, but denied that he reached a full sexual climax.

Plaintiff was born on December 30, 1953, being a nornal, full term baby.She was born within the possible range of gestation if an act of sexual intercourse occurred in April 1953.

In 1954plaintiff's mother commenced an action against Elliott for damages, alleging that she became pregnant and gave birth to a child as a result of the rape.Elliott's deposition, mentioned previously, was given in connection with this civil action for damages.A filiation proceeding was also filed.The civil action was settled prior to trial by the payment of $7,250 to plaintiff's mother by Elliott, and the filiation proceeding was also dismissed as part of this settlement.

Defendant's principal defense in the current case is that in April 1953 Elliott was sterile.Defendant testified that her son had the disease of mumps when he was 10 or 12 years of age.Medical testimony was presented that the inflammation of the testes sometimes caused by mumps could cause sterility in a male.However, no testimony was given concerning the length or severity of Elliott's mumps, or whether he suffered from such inflammation of the testes.

Elliott was married in 1956.He and his wife wanted children but she was unable to become pregnant, so they visited Dr. Bohlman in 1957.He analyzed a specimen of Elliott's semen and found no sperm.It...