Trier v. Singmaster

Decision Date17 May 1918
Docket NumberNo. 31983.,31983.
Citation167 N.W. 538,184 Iowa 307
PartiesTRIER v. SINGMASTER ET AL.
CourtIowa Supreme Court

OPINION TEXT STARTS HERE

Appeal from District Court, Washington County; John F. Talbott, Judge.

The plaintiff is the illegitimate child of one Thomas Singmaster, and brings this action to establish her right to participate in his estate, and for partition. Decree for the plaintiff in the court below. Defendants appeal. Affirmed.Mohland & Kuhlemeier, of Burlington, and Eicher & Livingston, of Washington, Iowa, for appellants.

Hamilton & Beatty, of Sigourney, and C. C. Hamilton, of Keota, for appellee.

GAYNOR, J.

Thomas Singmaster died December 31, 1915, intestate. He was a married man at the time of his death, and left surviving him the defendant, Katharine Singmaster, his wife, and the other defendants, his children. He was possessed of a large estate in lands. This action is brought to partition these lands. The plaintiff alleges that she is an illegitimate daughter, and as such is entitled to an undivided interest in his estate. She claims that deceased recognized her as such, and that such recognition was general and notorious.

The plaintiff was born on the 13th day of April, 1889, at the home of Samuel Singmaster, the father of Thomas. Her mother, Mary Rowe, was an unmarried woman, and had for a number of years worked as a domestic at the home of Samuel, whose family then consisted of his wife and his son, Thomas. Thomas was then an unmarried man. Samuel was an extensive farmer and stock raiser, farming a great many acres of land, and employing considerable help in and about his business. Plaintiff's mother, at the time of plaintiff's birth, was about 39 years of age. Plaintiff claims under the provisions of section 3385 of the Code of 1897, which provides:

That illegitimate children “shall inherit from the father when the paternity is proven during his life, or they have been recognized by him as his children; but such recognition must have been general and notorious, or else in writing.”

Katharine Singmaster, who was the wife of Thomas at the time of his death, admittedly is entitled to a one-third interest in the lands sought to be partitioned. Mary Even, Margaret Lillian, and Thomas C. Singmaster, his legitimate children, are entitled to equal shares of the balance of his estate, unless plaintiff has established her claim to an equal share with them in the estate so sought to be partitioned. It follows that if she has established her heirship, she is entitled to share equally with the other children of Thomas Singmaster. This presents two questions: (1) Is the plaintiff, Dora Trier, the illegitimate child of Thomas Singmaster, deceased? (2) Did Thomas Singmaster generally and notoriously recognize her as his child? Both these issues were determined by the lower court in favor of the plaintiff, and the defendants appeal. These questions are questions of fact to be determined from the record before us. The evidence so intermingles these questions that the answers to each must be found in the whole record.

[1] The first question is not difficult of solution. A reading of all the evidence satisfies us that, on the first proposition, the judgment of the court is correct. The evidence supporting plaintiff's claim is, in substance, as follows:

The plaintiff is the child of one Mary Rowe, and was born April 13, 1889. Mary Rowe was living at Samuel Singmaster's at the time the plaintiff was born. Thomas was living there with his father and his mother. Mary was a domestic in the home, and had worked there for some years prior to the birth of the child. Thomas lived with his parents and in the home in which plaintiff's mother worked, during all the time she worked there, and was unmarried. Prior to plaintiff's birth, an agreement of marriage existed between Mary and Thomas. The child was born in the home of Samuel Singmaster. The child and mother were cared for in that home during the confinement, and for several weeks thereafter. During that time, and when the child was but a few days old, Samuel was heard to remark:

“Without any doubt, it is Tom's child, but it's human, and we have to take care of it, but we don't know what to do with it.”

The record shows that during the time plaintiff's mother was confined at the home of Samuel, Thomas visited her in her room; talked marriage with her; said that he would marry her if it were not for his mother's interference; shed copious tears; kissed plaintiff's mother, and recognized the child as his. Upon recovering from her confinement, she was taken to the home of one Mrs. Diggs, and there cared for by Mrs. Diggs. It appears that she was taken to Mrs. Diggs at the request of Samuel Singmaster, and the expenses incident to her care at this home paid for by the Singmasters. It does not definitely appear whether by Samuel or by Thomas. Plaintiff's mother testified that Thomas is plaintiff's father, and that after the child was born Thomas still declared his purpose to marry her, but deferred the consummation of this purpose in deference to his mother's wishes and her declared opposition to such union. It is suggested in the record that his mother desired Thomas to marry the woman who he subsequently married, and who was his wife at the time of his death. Thomas continued a single man for 11 years after the birth of this child. During this time he frequently visited the plaintiff and her mother, both while at Mrs. Diggs' home and while she resided at other places not far distant from the Singmaster ranch. He was seen to caress the child; was seen frequently in conference with her mother. The mother frequently visited the home of Samuel, and was received there apparently on friendly terms, at least without objection. He was seen to give the plaintiff and her mother money. He was seen visiting the mother and carrying with him parcels, and was known to remain there for some time. The record shows that it was generally understood in the community, and was a matter of common talk, that Thomas was the father of the plaintiff; that this was not confined to a gossiping public, but to have been the thought in the minds of all the members of the Singmaster family and all who worked in and about the Singmaster ranch. This all occurred 27 years ago, and all the witnesses lived in and about the locality in which plaintiff was born; lived there at the time of the occurrence of her birth. None of them indicated doubt as to the parentage of this plaintiff, and there is nothing disclosed in this record that would lead the mind to believe that any member of the Singmaster family ever doubted the paternity of this child. Indeed, there is much in the record to indicate that during all these years the members of the Singmaster family believed that Thomas was the father of this child. Samuel so expressed himself soon after the child was born. No man knew Thomas better than his father. No man had a better opportunity to observe the relationship that existed between Mary and Thomas. No one was in a better position to form a correct idea as to the true relationship existing, and yet, soon after the child was born, he said, “It is no doubt Thomas's child.” Further than that, the record discloses that this plaintiff bears a strong resemblance to some of the Singmaster family, notably to a sister of Thomas's. One of the Singmasters testified to a strong resemblance to one of Thomas's sisters. This witness was a daughter of Thomas's sister. She testified that the plaintiff resembled her mother's sister, and that in the Singmaster family Thomas was generally reputed to be the father of the plaintiff. She said:

“I remember of hearing of the plaintiff's birth at the Singmaster home. I lived nearby at the time. I visited the Singmaster home frequently since her birth, and know that it was reputed generally in the family that Thomas was the father of the plaintiff. The resemblance between Dora and Mrs. Ramge [sister of Thomas] is very strong. Their eyes and expression are very much alike in many ways.”

Another witness testified to the same effect. There are other incidents appearing in the record which confirm us in the belief that Thomas was the father of this plaintiff, and recognized her as such. It appears that at one time before the birth of plaintiff he was warned against his relationship with plaintiff's mother, and told “that he better look out or he would get his foot in it,” and he replied “that he didn't think so; that she was too old.” Another time after the birth, one of his friends asked him, “How did you happen to get caught in the scrape,” and he remarked, “Lots of fellows get their foot in it if they keep on.”

Another witness who said he was acquainted with all the parties to the suit, and had known Thomas Singmaster 35 or 40 years, and had lived in the neighborhood of the Singmaster home, testified that he had a conversation with Thomas Singmaster. The date of the conversation is not given, but it is apparent that it occurred some time prior to his marriage with the present Mrs. Singmaster. This witness says:

“I told Thomas it would be better if he was married, and then he would have somebody in the house to look after him. He asked me if I had heard that Mary Rowe [plaintiff's mother] was blaming him, and I told him I had. He said he hated it, but he didn't deny it; he hated it, and wished it had not happened; that he would not hate it so much if it was not for his father and his mother.”

Another witness testified that in the Singmaster home she had a conversation with Thomas's brother, Charlie. The plaintiff was a little girl at the time, and was present. Thomas was in an adjoining room but a short distance away. The conversation was carried on in tones loud enough for Thomas to hear. She said to Charlie, “Don't you think the little girl looks like her father Thomas?” and Charlie said he thought she did, and Thomas made no response. The plaintiff was then a little girl, and the conversation...

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