Thom v. Bailey

• Jurisdiction: Oregon
• Parties: In the Matter of the Estate of James Eibridge Elliott, Deceased. Meta Marie THOM, appearing by and through Dorothy Jane Keil, Guardian of her Estate, Respondent, v. Gladys BAILEY et al., Petitioners.
• Citation: Thom v. Bailey, 257 Or. 572, 481 P.2d 355 (Or. 1971)
• Court: Oregon Supreme Court
• Decision Date: 18 February 1971

Page 355

481 P.2d 355

257 Or. 572

In the Matter of the Estate of James Eibridge Elliott, DeceasedMeta Marie THOM, appearing by and through Dorothy Jane KeilGuardian of her Estate, Respondent, v.Gladys BAILEY et al., Petitioners.

Supreme Court of Oregon, In Banc.

Argued and Submitted Nov. 30, 1970.

Decided Feb. 18, 1971.

William E. Hanzen, Pendleton, argued the cause for petitioners.With him 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.

TONGUE, Justice.

This case involves three separate proceedings on behalf of plaintiff, an illegitimate child, to declare her to be the daughter of the decedent and, as such, entitled to inherit his entire estate.The first proceeding is a proceeding in probate for determination of heirship.The second is a petition in probate to revoke the probate of decedent's will.The third is a suit for declaratory judgment.All three were consolidated for trial.

Defendants, including decedent's mother, have petitioned for review of a decision by the Court of Appeals, which affirmed a decree and orders in probate declaring, in substance, that James Elliott, an unmarried man, was the father of Meta Marie Thom, and that she is his sole heir and as such entitled to inherit his estate of some $100,000.Or.App., 90 Adv.Sh. 1635, 471 P.2d 809(1970).Three questions are presented by this appeal: (1) Whether the Court of Appeals had jurisdiction to hear this appeal; (2) Whether plaintiff sustained her burden to prove that she was the child of decedent; and (3) Whether, under the terms of ORS 109.070(adopted in 1957), the paternity of plaintiff, as an illegitimate child, by the decedent could be established for purposes of inheritance either by declaratory judgment proceedings or by proceedings for determination of heirship--a question of first impression in this court.

Because of the importance of these questions, particularly the third question, we granted defendant's petition for review.

1.Jurisdiction of Court of Appeals.

The Court of Appeals, by the terms of Oregon Laws 1969, ch. 198, § 1, was granted jurisdiction of appeals and proceedings arising under ORS chapters 111 to 121, inclusive, all relating to the estates of decedents.Defendants point out, however, that by § 1 of that Act it was not granted jurisdiction to hear appeals in then-pending suits for declaratory judgments to determine who is entitled to inherit property from the estate of a decedent, including this case, for the reason that probate courts did not previously have jurisdiction to make declaratory judgments until granted such power later in 1969 by the new Probate Code(Oregon Laws 1969, ch. 591)(ORS 111.005 et seq.).

Since, however, the suit for declaratory judgment in this case not only involved the estate of a decedent, but was, by agreement of defendants, consolidated for trial with two probate proceedings over which the Court of Appeals clearly has jurisdiction, we hold that it had jurisdiction over the appeal of the entire consolidated case.

2.Sufficiency of evidence to prove paternity.

The trial court, as well as the Court of Appeals, held that plaintiff had sustained the burden of proof and found that she was the daughter of the decedent.After examining the entire record we agree that plaintiff offered sufficient evidence to support such a finding and that it was a proper finding under the evidence in this case.

It would serve no useful purpose to review all of the evidence in detail, as set forth in an able opinion by the trial court.Because of the importance of the case, however, as well as the novelty of the questions of law presented, we shall briefly summarize the facts.

In April 1953James Elliott met Dorothy Thom in Walla Walla, Washington.At that time he was about 22 years of age, single, and she was about the same age, also single.On the night of April 11th (according to Dorothy Thom)they had a date, during which it is contended that plaintiff was conceived.Elliott, in a subsequent deposition, placed the date as April 18, 1953.

Some time later, upon finding that she was pregnant, Dorothy Thom filed an action for damages for alleged rape against Elliott in Walla Walla, Washingon.She also filed filiation proceedings against him there.

Depositions were taken of both parties to the damage action.In these depositions she testified that she was forcefully ravished and he admitted having intercourse with her, but denied paternity.He claimed that although she did not resist his advances, the act of intercourse was not consummated by him.At that time Elliott hired a detective in an effort to produce evidence that Dorothy Thom had intercourse with other men during the period in question, but was not successful in producing any such evidence.Blood tests were also taken at his request, but were inconclusive.

A settlement was then agreed upon under which Elliott paid her $7,250 in return for a release of all claims, dated September 27, 1954.Both proceedings were then dismissed, with prejudice.

On December 29, 1953, plaintiffMeta Marie Thom was born at a hospital in Walla Walla.Based upon information supplied by her mother, Dorothy Thom, plaintiff's birth certificate left 'blank' the name of her father, although her mother testified that she told her doctor that Elliott was the father.Plaintiff's custody was retained by her mother, who later married another man.At the time of the trial plaintiff was 15 years of age.

In November 1956 Elliott was married.He and his wife then attempted, without success, to have children.In December 1957(over four years after the admitted act of intercourse) Elliott visited a doctor, who took a specimen of his semen.Upon examining it, no sperm was found.He then prescribed vitamins and gave hormone shots to Elliott.In 1961 Elliott was divorced.His wife later remarried and became the mother of three children.

James Elliott never remarried and died on April 24, 1967.The cause of death was cancer of the testicles.His mother, Gladys Bailey, who had been named as the executrix of a will made prior to his divorce, then undertook to probate that will.These proceedings were then filed.

In these proceedings it is admitted that James Elliott died intestate.His mother contends, however, that she is his sole and only heir and is entitled to inherit all of his estate.She also denied that plaintiff is his daughter.

On trial of these consolidated proceedings, in addition to evidence of the facts already stated, plaintiff's mother again testified to the act of intercourse and fixed the date as April 11, 1953.She also denied having intercourse with any other man during the period in question, although admitting intercourse with two other men at other times, one in July 1953.She also admitted that she later considered a possible scheme (which she never actually attempted) to 'hang' the paternity of the baby on the of these men.

Defendants then offered medical opinion testimony that although 'possible,' it was unlikely that plaintiff was conceived by intercourse on April 11, 1953, in view of the date of the last previous menstrual period of her mother on March 23, 1953(according to the medical records), and the date of birth of the baby on December 29, 1953, although admitting some 'variation' in such matters.

Defendants also offered testimony that James Elliott, when 10 or 12 years of age, had mumps in some unknown degree of seriousness.Defendant then offered the testimony of a general practicing physician that mumps in a boy of that age can cause sterility and that based upon that fact, together with the absence of sperm at the time of the subsequent test by the same witness in December 1957, it was his opinion that James Elliott was sterile at the time of his admitted intercourse with plaintiff's mother in April 1953.

In reply, plaintiff called as witnesses a specialist in obstetrics and gynocology and a specialist in urology, who testified that the manner in which the test was made by defendant's witness in December 1957 was not reliable; that, in any event, the absence of sperm at that time may well have been the result of a temporary 'blockage,' which can result from various causes; that it thus did not necessarily follow that James Elliott was sterile in April 1953, at least without knowledge and consideration of additional facts, and that if he had been previously rendered sterile as the result of mumps, it would be expected that his mother would have been aware of that fact and that his testicles would have atrophied and would not later appear to be normal.

Defendant's witness admitted that at the time of his examination in December 1957, plaintiff's testicles appeared to be normal, but contended that they'do not necessarily shrink' when sterility is caused by mumps.No autopsy evidence was offered.Neither did defendant call as a witness the doctor who treated Elliott during his terminal illness, apparently because that doctor was also deceased.

While it may be that plaintiff's evidence did not establish the paternity of James Elliott beyond all reasonable doubt, we find that it was sufficient to establish that fact by a preponderance of the evidence, and even by 'clear and convincing' evidence, if that test be required in such proceedings.As held by this court in Cook v. Michael, 214 Or. 513, 527, 330 P.2d 1026(1958), the test of 'clear and convincing evidence' means that the truth of the facts asserted is 'highly probable.'In our opinion, the testimony of plaintiff's witnesses was sufficient to satisfy that test and we agree with the findings of the trial judge.

We have often said that the trial judge, based upon his observation of the witnesses and their demeanor, is in a far better position than this court to pass upon the credibility of...