68 Iowa 619 | Iowa | 1886
Lead Opinion
It is shown, beyond controversy, that he was greatly attached to the plaintiff’s mother; that he visited her frequently; assisted her with money; and indulged in such intimacy as to afford the strongest ground for belief that his relation to her was meretricious. We do not deem it necessary to set out the evidence tending to show the alleged paternity of the plaintiffs. It is sufficient to say that it leaves no reasonable doubt upon our minds. That the defendants themselves had little, if any, doubt of it, is indicated by their conduct towards their father during the last years of his life.
The only difficulty, if there is any, arises upon the question as to whether Bowen’s recognition of the children was general and notorious, within the meaning of the statute.— Code, § 2166. It is proven that Bowen sometimes denied that the plaintiffs were his children. In such denial he certainly did not recognize them. It is claimed, therefore, that his recognition was not general, but, at most, was limited and partial. But everything is limited and partial which is not universal, and “'general” is not equivalent to “universal.” Webster says that the word “general” means “extensive, though not universal.” We think that the evidence shows clearly that Bowen’s recognition of the plaintiffs was general. They were not only born during his intimacy with the mother, but he visited the mother immediately after her confinement with one of them, and manifested especial interest in the new-born child. He settled her bills, provided for the children, and afterwards took the mother and children into his own family. He became deeply attached to the children, and in all his treatment of them he had precisely the bearing, as far as was observable, of an affectionate father towards his children. He addressed each as “My son,” and spoke of himself to them as “Your papa.”
We are aware, as is urged by defendants, that such words
The circumstances relied upon are that no witness was found who saw the deed in the grantees’ possession prior to the grantor’s death; that it remained unrecorded until after his death; that the grantor remained in possession of the
It may or may not have been understood that the deed was not to be recorded during the grantor’s life, and while he was entitled to the possession and enjoyment of the land. But, even if there was no such understanding, it does not seem unnatural that the deed should have been withheld from the record during the time that the grantor was entitled to the possession and enjoyment of the land, and expected to pay the taxes. The very matter of the assessment might have constituted a sufficient motive, if there had been no other. The offer of sale by the grantor may have been made with the grantees’ consent, and with the purpose on his part of giving them the proceeds. So long as the deed was not recorded, and the grantor was rightfully in possession, all parties might have thought it advisable that a sale, if made, should be made in his name. He liad, too, a life-estate in the property, and a clear title could not be given without his joining in the deed. It must be borne in mind, too, that the grantees were children of the grantor, and that business between parties thus related is not usually done in quite the same way in which it is done between others. It seems to us, therefore, that the circumstances relied up>on are consistent with the supposition that the- deed was delivered, aud that the presumption arising from possession was not overcome.
But the plaintiffs insist that there was evidence that the
Modified and Affirmed.
Dissenting Opinion
dissenting. — I concur in that part of the opinion which sustains the validity of the deed to the defendants, or some of them, but I cannot concur in the conclusion that the children were so generally and notoriously recognized by the deceased that they may inherit liis estate. A great portion of the evidence seems to be intended to raise a presumption that the deceased was the father of the plaintiffs. This evidence is referred to in the opinion of the majority. The fast that there is ground to believe that he was their father has nothing to do with the case. As their paternity was not proved in his life, and he has not recognized them in writing, they cannot inherit unless they prove general and notorious recognition as his children by the deceased. See Code, § 2466. About all the evidence of recognition found in the record is that he was kind to the plaintiffs, called them, when addressing them, “my sons,” and used other endearing expressions towards them, and, in some instances, admitted that he was their father. But on the other hand he declares to other persons that he is not their father, and makes statements of his physical condition which would render it impossible for him to become the father of a child. Now, can itbe said that one generally recognizes a child as his own who sometimes admits he is its father, and at other times denies it, and says that he is incapable of becoming a father?