Zachmann v. Azchmann

• Decision Date: 18 February 1903
• Citation: 66 N.E. 256,201 Ill. 380
• Parties: ZACHMANN v. AZCHMANN et al.
• Court: Illinois Supreme Court

201 Ill. 380

66 N.E. 256

ZACHMANN

v.AZCHMANN et al.

Supreme Court of Illinois.

Feb. 18, 1903.

Appeal from circuit court, Cook county; Elbridge Hanecy, Judge.

Action by Albertina Zachmann against William Zachmann and others. From a judgment in favor of the defendants other than Gertrude Zachmann, the plaintiff appeals, and the defendant Gertrude Zachmann assigns cross-errors. Reversed.

Magruder, C. J., dissenting.

H. W. Dikeman, for appellant.

Ernest Severy, guardian ad litem, for cross-appellant Gertrude Zachmann.

Thomas J. Holmes, for appellee William Zachmann.

James Maher, for appellee Mary Mace.

BOGGS, J.

This was a proceeding in chancery for the partition of the real estate of which Christian Zachmann died seised, among his heirs at law. The decree rendered in the cause denied to appellant, the widow of the deceased, dower or homestead in the real estate, and also decreed she was not entitled to the award out of his personal estate given by the statute to the widow of a deceased husband, on the ground the terms and conditions of an antenuptial agreement, entered into by and between the appellant and the deceased, her husband, provided she should accept and be paid the sum of $1,000 out of the estate of the husband in full of all her interest in the estate, whether by way of dower, homestead, or widow's award. The decree further declared the appellee Gertrude was not a daughter of said deceased, and not entitled to share in his estate as an heir, and that John Zachmann, deceased, was a son of the deceased, and that Mary Mace, the daughter and only heir at law of John, was an heir of said deceased, Christian Zachmann. Errors assigned by the appellant, and cross-errors assigned by the appellee Gertrude, a minor, by her guardian ad litem, bring the correctness of these findings before us for review.

As the question of the force and effect of the antenuptial agreement depends to some extent upon whether said Gertrude is the daughter of said deceased, the finding of the decree upon that point will be first considered. Gertrude Zachmann was born December 9, 1891. The appellant was her mother, and at the date of her birth was the lawfully married wife of said deceased, Christian Zachmann. The husband and wife were living together at the time of the birth of Gertrude, and so continued to live together as husband and wife during the remainder of the lifetime of the husband. He died July 3, 1901, at which time Gertrude was of the age of about 9 1/2 years. During all of the time intervening between her birth and the death of said Christian, Gertrude resided in the family of Christian and the appellant as their daughter, and was in all respects treated by said Christian as his child. He provided for her in all of her wants, and called her his daughter, and in the draft of a wall, written by himself, but never legally executed, he called her his daughter, and devised to her one of the two pieces of real estate here sought to be partitioned, and bequeathed to her, as his daughter, whatever money should remain after the payment of his debts and funeral expenses. She lived in his family as his daughter at the time of his death, and the proof is ample that he entertained the affection of a father for her. Every act and every expression of the deceased having any bearing upon the question of her paternity indicated her legitimacy, and the record is barren of proof having any tendency to show he had any doubt that he was her father. The only fact relied on to cast doubts upon her parentage was that her mother had been married to said Christian but about 15 days at the time of her birth, and that the appellant, her mother, had only 20 days before her marriage with Christian been granted a divorce from one Wilhelm Juergens, her former husband. It appears from the transcript of the record of the decree of divorce that the said Wilhelm Juergens, defendant in said divorcecase, had been notified of the pendency of the bill for divorce by publication. Whether he was a nonresident of the state, or on due inquiry could not be found, was not disclosed. There was no proof whatever in the record in the case at bar that said Juergens and the appellant had lived together at or within the period of conception of the said Gertrude, nor is there any proof as to the whereabouts of said Juergens at any time. Gertrude was born of the body of the appellant while the latter was the lawful wife of said Christian Zachmann, and every child born in lawful wedlock is presumed to be legitimate. Illinois Land & Loan Co. v. Bonner, 75 Ill. 315; 5 Cyc. 626. ‘A legitimate child is he that is born in lawful wedlock, or within a competent time thereafter.’ 1 Blackstone's Com. 446. A minor child reared in the family of a lawfully married husband and wife who are living together as husband and wife, and is treated and recognized as their lawful offspring, is prima facie to be regarded as the child of the husband, and the burden of disproving such parentage is cast upon those denying it. Metheny v. Bohn, 160 Ill. 263, 43 N. E. 380. The conception of Gertrude was antenuptial, but her birth was postnuptial. The presumption which arises from birth in lawful wedlock is not overcome by proof merely of antenuptial conception. Coke's Litt. 344a. Conception during wedlock is not essential to the presumption of legitimacy which arises from birth in wedlock. Rex v. Luffe, 8 East, 198; Dennison v. Page, 29 Pa. 420, 72 Am. Dec. 644. The mere fact that the legal relation of husband and wife still subsisted between the appellant and the said Juergens when Gertrude was conceived is not sufficient to overcome the presumption that she was the child of Christian Zachmann, arising from the fact that her mother was the lawful wife of Zachmann when she gave birth to Gertrude. This presumption is further strengthened by the fact that Gertrude was born within 15 days after the marriage between her mother and Zachmann,and was received by Zachmann, who knew all the facts relied on to cast doubts on her parentage, as his child, and was cared for and nurtured by him as his daughter during the remainder of his lifetime. The court erred in holding the presumption that Gertrude was the legitimate child of Christian Zachmann had been overcome. The decree should have declared said Gertrude to be the daughter of said Christian Zachmann, deceased, and of such to be entitled to share in his property as one of his children.

The antenuptial contract entered into between Christian Zachmann and the appellant was produced in evidence. It expressly provides appellant shall not claim the allowance or award allowed to a widow by the statute or dower or homestead in the lands owned by him, and expressly waives and releases her right to claim such award, dower, or homestead in consideration of the payment to her of $1,000 out of the estate of the husband. The agreement was signed by Christian and by the appellant, and appended thereto is the certificate of Ada C. Williams, notary public, showing that both of the parties to the agreement had acknowledged the same before her, and the certificate contains a clause showing that the appellant and said Christian each acknowledged that they had waived, released, and relinquished all rights of dower and homestead. The acknowledgment is in compliance with the requirements of section 27 of the conveyance act, with relation to the waiver and release of the estate of homestead in lands. We have found, and herein declared, that the evidence established that Gertrude Zachmann was the daughter of said appellant and said Christian Zachmann, deceased, and is one of the heirs at law of said Charistian. She was less than 10 years old at the time of the death of her father. The appellant, said Christian, and the child, Gertrude, lived together as a family at the time of the death of said Christian. The antenuptial contract, at the date of the death of said Christian, was purely executory, and was repudiated by the appellant, who claimed her widow's award and dower and homestead in the real estate of the deceased. It was contended in the trial court that the antenuptial contract could not be regarded as executory. This contention was based upon the insistence that it appeared from the proof that the appellant received from Christian, during his lifetime, the sum of $350 on the antenuptial contract. The chancellor found adversely to this contention, and that finding was clearly correct. The money paid to the appellant by the said Christian was shown to have been handed to her for the purpose of discharging claims against said Christian, and paying household bills and family expenses. The sum of $67, alleged to have been received by the appellant from Mrs. Cull for the rent of a portion of the homestead property after the death of Christian, was not received as a payment on the amount specified to be paid in the antenuptial contract. The appellant had repudiated the antenuptial agreement, and received the rents under the belief she was entitled thereto until her dower and homestead in the real estate of her deceased husband should be assigned to her. The legality of this claim to the rents need not be here adverted to. It is sufficient for the present purposes that the amount so collected did not constitute a payment on the antenuptial contract.

The family of the deceased, Christian Zachmann, at the time of his death, consisted of himself, the appellant (his wife), and their daughter, Gertrude. The family of the appellant, the widow of Christian, after his death, consisted of herself and the said Gertrude, the daughter of herself and her deceased husband. Did the unexecuted antenuptial contract bar the right to the award which section 74 of chapter 3, entitled ‘Administration,’ etc., provides shall be set apart for widows of deceased husbands whose estates are administered in this state? We think not. In Phelps v. Phelps, 72 Ill. 545, 22 Am. Rep. 149, it...