198 Mo. 328 | Mo. | 1906
This cause is in this court by appeal on the part of the defendants from a decree and judgment in partition of the circuit court of Scotland county, Missouri, in favor of the plaintiff. The petition is in the usual and ordinary form, alleging that on the — day of November, 1902, Conrad Bertram died seized of certain land in Scotland county, Missouri, therein described; that he left surviving him and as his sole heirs at law this plaintiff and the defendants herein; that Elizabeth Bertram is his widow; that three of
On February 2, 1903, the adult defendants filed an answer admitting the death of Conrad Bertram; admitting he died testate and that he was at the time of his death the owner of the lands described in the petition ; that defendants are his legatees and devisees, but deny that the plaintiff was the granddaughter of Conrad Bertram, deceased, or that she was a relative of said deceased. On the same date the minor defendant filed an answer denying all the allegations of the petition.
On the 4th day of August, 1903, the cause was tried before Pión. E. R. McKee, who called to his assistance a jury to pass on the question of fact as to the heirship, which at that stage of the proceeding appeared to be the only question in issue.
The facts as developed upon the trial of this cause were substantially as follows: That in the year 1853 Conrad Bertram, in company with his father, two brothers, Henry and Fred, both younger than himself, Dora Echlebe (the woman whom he afterwards married) and a lady, who was a cousin of theirs, came to this country from Germany, landing at New Orleans. At the time Dora Echlebe had with her a child about two or three years of age, called Dena or Tena, the mother of this plaintiff. The cousin remained at New Orleans and has never been heard from since their arrival; the balance of the party pushed on immediately for St. Louis, where Conrad Bertram followed his trade as a butcher for about a year. Immediately upon their arrival at St. Louis and in October, 1853, Conrad Bertram and Dora Echlebe were married. The
On the part of the plaintiff the testimony tended to show the following facts:
Henry Peltman testified that he was married to the mother of the plaintiff in the name of Dena Bertram ; that he courted her a year, going across the field to where she lived every Sunday — sometimes oftener; that he never heard Conrad Bertram say whether she was his daughter or not; that during their courtship Conrad treated her the same as the other children; that she went by the name of Bertram and that Conrad called her his Dena. That he asked him, ‘‘ Conrad, have you any objections to me and your Dena getting married ? ” To which Conrad replied, “No, Henry, you can get my Dena.” That they were married on January 14, 1867, she marrying under the name of Dena Bertram; that his wife’s mother died the same year and that he and his wife, at the request of Conrad Bertram, went to his house and kept house until Conrad remarried. Witness stated that his wife died about four years after their marriage. Pie further stated that he and Conrad Bertram had some trouble over some land; that witness told him in the presence of Major Cramer,*337 “In the first place I am crippled; in the second place, I am yonr son-in-law.” He, Conrad, wanted to make witness pay more for the land than the price at which Conrad bid it in. Conrad replied: “Yes, Henry, that’s all so; at the same time take character from a man.”
The record of the church register of the marriage of Henry Eeltman and Lena Bertram shows that they were married on the 14th of January, 1867, at Etna, Missouri, by John Breitenstein, a minister of the Gospel. This certificate was filed for record January 25, 1867.
Neighbors and acquaintances who had known the girl in question from her school life up to the time of her death, testified, that she was always known as Lena Bertram, daughter of Conrad Bertram; that she was recognized as his child and that this reputation continued up to the time this suit was brought; that she was introduced as Lena Bertram; that Conrad Bertram treated her as his child and called her his child or his daughter, and that she called him father or papa.
Fred, William and Henry Bertram testified that they were children of Conrad Bertram; that their mother’s maiden name was Lora Echlebe, and that from conversations with their father they learned that he and their mother were acquainted in Germany, but owing to the laws of that country they could not be married there, and that they were married immediately on reaching America; that it was the understanding of the family that Lena was their sister; their father’s child; that their father called her Lena or Tena or his daughter, and that she called him papa like the rest of the children and that they always recognized her as their sister and that she was treated like the rest of the children.
On the part of the defendants the testimony tended to show that Conrad Bertram did not recognize plain
Numerous other witnesses testified on the part of the defendants, but we deem it unnecessary to detail their testimony. It is sufficient to say of it that it tended to show that Conrad Bertram did not regard or recognize plaintiff’s mother as his daughter.
At the close of the evidence the court instructed the jury and the issue of fact presented to them: “Was Conrad Bertram the father of Mrs. Dena Feltman? Was she his child begotten by him!” was submitted to the jury, and they found in favor of the plaintiff, that is, that her mother was- the daughter and child of Conrad Bertram.
On August 6, 1903, the defendants filed a motion for a new trial, assigning as reasons for such motion that the verdict was contrary to the law and the evidence; that the court erred in submiting the issues to a jury; that the court erred in excluding certain evidence offered by defendants; that the court erred in admitting certain evidence presented by plaintiff; that the court erred in submitting certain instructions asked by plaintiff and in refusing certain instructions asked by the defendants. Up to this time no other issues were raised and this motion was by the court overruled on August 7, 1903.
The record before us does not disclose any further trial of this cause after the filing of the amended answers, nor does it disclose any demand by the appellants for a further trial. The abstract of record as furnished by appellants fails to disclose any testimony upon a.nv issue presented by the amended answers. The vital and important question in this cause seems to have been the issue of the heirship of the plaintiff; therefore, appellants in order to comply with the rules of this court should have set forth, either in narrative form or by questions and answers, all of the testimony of the Avitnesses. It is apparent that this was not done. However, the only evidence preserved as contained in the abstract, relates to the issue of heirship. There is no testimony recited in respect to the nature and character of the exclusive and adverse possession of the defendants, which was specially set up in the amended answers.
On the 21st day of August the court entered of record its finding and decree in this cause, which was as follows:
“Now at this day this cause coming on for trial upon the issues as to whether the plaintiff was the grandchild and legitimate heir of Conrad Bertram, de*340 ceased, and as to whether her mother was the daughter of said Conrad Bertram, and come the jury herein impaneled and charged, and after hearing all the evidence and arguments of counsel, return into the court their verdict heretofore recorded upon this issue, finding that plaintiff was the granddaughter of Conrad Bertram, and that her mother was his daughter, and the court further finds, adopting said verdict and finding, that the plaintiff was and is the granddaughter of said Conrad Bertram, and the court further finds that said Conrad Bertram died intestate as to said plaintiff, having failed to mention or provide for her in his last will; that he died testate as to all the defendants, having made a will; he further finds that he died seized of the lands mentioned in plaintiff’s petition, to-wit: The north half of northeast quarter of section 1, township 64, range 10 west; the southeast one-fourth of the southeast quarter of section 2, township 64, range 10 West; the northwest one-fourth of the northwest one-fourth of the northeast quarter of section 10, township 64, range 10 west; the north half of the southwest quarter of section 36, township 65, range 10 west; and the south half of the southeast quarter of section 36, township 65, range 10 west, all in Scotland county, Missouri. The court further finds that Conrad Bertram in his lifetime made advancements to the following defendants and in the following amounts: William Bertram, Henry Bertram, Fred C. Bertram, Jesse Bertram, Ben C. Bertram, Mary E. Lips, Adam E. Bertram and Louis E. Bertram, the sum of $800 each out of his estate and charged it as an advancement, and that the plaintiff and the other defendants have received nothing by way of advancements. The court finds that by his said will that Conrad Bertram gave to his wife Elizabeth Bertram all of his property, consisting of both real estate and personal property during her natural life or so long as she should remain his widow, except the following: He gave and bequeathed to his*341 children as follows: Adam E. Bertram, $800; Lonis E. Bertram, $800; Burley E. Bertram, $80.0; Irvin A. Bertram, $800; Estella L. Bertram, $800 ; and the court finds that all of said advancements were paid by Conrad Bertram during his lifetime except the last three, and that he further provided in his said last will that if he paid said sum and advancements in his lifetime that the same should be charged to them so paid by him, in his lifetime, and that it was further provided that after the death of his wife, Elizabeth Bertram, he bequeathed to his sons, William Bertram, Henry Bertram and Fred Bertram $100 each, and that the residue and remainder of his estate, both personal and real, was bequeathed to his sons and daughters to be equally divided among them as follows: Jesse A. Bertram, Mary. E. Lips, Ben C. Bertram, Adam E. Bertram, Louis E. Bertram, Burley E. Bertram, Irvin A. Bertram and Estella L. Bertram; that he died intestate as to the plaintiff and that she is entitled to partition to said estate and the court finds that out of the lands of the deceased that parties hereinbefore charged with advancements should bring the same into hotchpot and the said advancements so charged to said parties should be added to the value of said land and the plaintiff be given a full one-twelfth interest, and the remainder be set off according to the terms and conditions of the will heretofore described, that is to say, to the widow during her life or during her widowhood, and the remainder to the heirs according to the terms of said will.
“And the court further finds that the plaintiff’s interest in kind must be assigned to her by the commissioners hereinafter appointed, that is, that they take the whole value of the land in the petition described and add to it the advancements heretofore set forth to be brought into hotchpot in the sum of $6,400, and give to the plaintiff one-twelfth of the land and the advancements and the remainder shall remain subject to*342 the provisions of the will of the late Conrad Bertram and he held and enjoyed by the defendants as provided by the will hereinbefore set forth, and that the following commissioners he appointed to set off and assign plaintiff’s interest: C. E. Smith, J. K. Shacldett and Fred Mohr. And that the said commissioners make a report of their proceedings at the next regular term of the circuit court of Scotland county, Missouri.”
On the 22nd day of August, 1903, the defendants filed their second motion for new trial, which motion was by the court overruled. This was followed by a motion in arrest of judgment, which was also overruled. From the decree and judgment in this cause the defendants prosecuted their appeal to this court, and the record is now before us for consideration.
OPINION.
The record in this cause presents hut one proposition for our consideration, and that is the sufficiency of the testimony upon the issue presented to warrant the trial court in finding that plaintiff was the granddaughter and legitimate heir of Conrad Bertram, deceased, and that her mother was the daughter of said Conrad Bertram.
Learned counsel for appellants devote most of their brief and argument to the proposition that plaintiff cannot maintain partition under the pleadings and facts of this case. It is sufficient to say upon that proposition that while this court has not expressly ruled that partition might he resorted to as a proper remedy for a pretermitted heir, yet such remedies have been entertained. Hockensmith v. Slusher, 26 Mo. 237, was a partition suit by pretermitted heirs to have their interests in the estate of the testator assigned to them. While it was ruled upon the disclosures of the record in Hill v. Martin, 28 Mo. 78, that partition was not the proper remedy, for the apparent reason that the estate had
In McCracken v. McCracken, 67 Mo. 590, the right of a pretermitted heir was asserted by a suit in ejectment. It was contended in that case that ejectment would not lie as it is contended in the case at bar that partition cannot be maintained. This court, in responding to the contentions, indicated very clearly that it did not regard any of the remedies, either of ejectment, partition or contribution, as exclusive; but that the circumstances and conditions surrounding the estate must indicate the proper remedy to be pursued. It was said by the court in that case, in discussing the propositions before it, that “it is urged, however, by the counsel for the defendant that pretermitted heirs cannot maintain ejectment, but must proceed under the 47th section of the Statute of Wills, or by bill in equity, for contribution. Waiving the fact that this objection should have been presented by the answer, and cannot be made for
In Bradley v. Bradley, 24 Mo. 311, there was a will made and executed by Thomas P. Bradley in which he omitted to make any provision for his children, but devised his entire estate to his widow, Ann Bradley. In that ease the proceeding to assign dower to the widow was entertained, notwithstanding the widow in her answer denied all rights to the children in and to the estate of the deceased, and alleged that she was the sole and exclusive owner of all the land that the testator had at his death, and that she was the sole tenant thereof and that none of the other parties to the suit had any interest in it. While it must be frankly conceded that in this and other cases the question now presented by learned counsel for appellant was not raised, nor discussed, yet the fact that such proceedings have been entertained by the courts must be regarded at least as some authority that they were correctly recognized and that such proceeding was one
Section 4649, Revised Statutes 1899, provides a summary remedy for contribution under certain conditions; but as was ruled by this court in McCracken v. McCracken, supra, we do not see any valid or legal reason why, under certain circumstances, in order to assert the rights of a child omitted from the will, provided for in section, 4611, supra, either an action in partition, ejectment or in equity for contribution might not be resorted to.
Aside from what has been said upon the proposition as to plaintiff’s right to assert her claim by an action in partition, it is manifest that upon the disclosures of the record defendants are in no position to contest such right upon this appeal. When this case was' called for trial both plaintiff and defendants appeared, and the record before us, except in the second motion for new trial, which was filed on the 22nd day of August, 1903, some two weeks after the issue as to heir-ship was determined, is absolutely silent as to any challenge of the right of plaintiff to maintain this action. The record in this, cause indicates conclusively that there was only one controverted question in this pro
Whether this proceeding is to be regarded as one in partition or an action in equity for the assignment of plaintiff’s interest in the estate of her grandfather, as recognized by section 4611, we are unwilling, under the disclosures of the record before us, to reverse this cause for the reasons, upon this branch of the case,- so earnestly and ably presented by counsel for appellants.
This brings us to the consideration of the only proposition which we regard as being properly before us upon this appeal, that is, as to the sufficiency of the testimony to support the finding of the court, that plaintiff’s mother was legitimated under the provisions of section 2917. Revised Statutes 1899, thereby becoming a legal heir of Conrad Bertram. Section 2917 provides that “if a man, having by a woman a child or children, shall afterwards intermarry with her, and shall recognize such child or children to be his, they shall thereby be legitimated. ’ ’
The rules of law applicable to this statute and to the proposition now in hand as to the nature and character of the showing to be made by a child in order to fall within the provisions of the statute, are nowhere more clearly stated than in Adger v. Ackerman, 115 Fed. 124. In that case the proposition as to the legitimacy of a boy, under the provisions of section 2917, was involved. On the one hand it was contended that under the statute the recognition by the husband of the children as his own, was conclusive evidence that he was their father. This contention was regarded as sound by a majority of the court; however, it is only necessary for us to say that we fully concur in the views of the late learned and eminent Missouri judge, that is, Judge Thayer, who gave expression to his views in that case on the proposition in a separate concurring opinion. His construction and interpretation of the provisions of the statute is so clear and so directly applicable
“I concur, however, in the order affirming the decree below for the following reasons: The Missouri statute (E. S. 1899, sec. 2917), quoted in the foregoing opinion, declares that ‘ if a man, having by a woman a child . . . shall afterward intermarry with her and shall recognize such child . . . to be his,’ it shall thereby be legitimated. This statute, in my opinion, in effect makes the fact that a man recognizes a child, born out of wedlock, as his offspring, after he has married the mother, persuasive, if not conclusive, evidence that he is the father of such child. The question is pertinent, why did the Legislature require recognition unless it was to be taken as evidence of paternity from one who was most liable to-know the fact? It cannot be reasonably claimed that the Legislature intended that recognition should have no probative force, as respects the question of paternity, and that this latter fact must be established otherwise than by recognition. No legislature would be apt to sanction such a doctrine, and, if it had been the intention of the Legislature to formulate that rule, nothing would have been said concerning recognition, but the statute would have simply declared that if a man has by a woman a child, and subsequently marries her, the child shall be deemed legitimate. Besides, the rule which denies that recognition has any probative force or only slight weight, as bearing on the question of paternity, would leave an illegitimate child in practically the same helpless and unfortunate condition which such children occupied before the statute was enacted, since it would frequently be impossible for a child to prove its paternity otherwise than by recognition. The statute in question was inspired by an humane purpose. It was intended primarily for the benefit of those who were so unfortunate as to be born out of wedlock, and who, for that reason,*349 were made outcasts by the common law, and looked upon as having no inheritable blood. As the statute is remedial, and was enacted mainly for the benefit of illegitimate children, it should be construed liberally so as to afford them the utmost protection. Looking at the statute from any point of view, I am impressed with the idea that the words of the statute, ‘and shall recognize such child to be his, ’ would have had no place therein unless it had been intended that recognition should be regarded as the very highest evidence of paternity. I am of opinion, therefore', that the Legislature intended to give to acts of recognition the effect of evidence of a very decisive character, upon the theory that a man who marries a woman who has an illegitimate child is most interested in knowing and is most liable to know whether the offspring is his, and would not be prone to recognize it as his offspring unless it was his. Statutes of other States have been framed upon the same theory; that is to say, making recognition evidence of paternity. For example, in Michigan, the written acknowledgment by a man that an illegitimate child is his, he having married the mother, in and of itself renders the child legitimate. [Comp. Laws Mich. 1897, sec. 9067.] Statutes of a very similar character have been adopted in Iowa, Minnesota, Montana, Alabama, and possibly some other States. [Code Iowa, 1897, sec. 3150; Gen. St. Minn. 1891, sec. 3887; Rev. St. Mont. 1895, sec. 302; Code Ala. 1896, sec. 374.] In the present case it is not necessary to adopt the extreme view that recognition of an illegitimate child by a man who has married its mother is conclusive proof of paternity which no evidence can overturn, and hence, that the legitimacy of a child born out of wedlock, if it is recognized, by force of the statute is placed on a firmer foundation than the legitimacy of a child born in lawful wedlock, and no decisive opinion need be expressed on that point. I think that it is true, however, that by the recognition of a child born out of wedlock, under the circumstances*350 aforesaid, such a child is placed in the same favorable position as one born during wedlock; that it can only be rendered a bastard, after such recognition, by the same kind of proof which is required to overturn the legitimacy of a child born in the course of wedlock; and that it is entitled to the benefit of the same presumptions.”
The law as announced in that ease is decisive of the question involved in the case at bar. While it may be said that the testimony upon the question of Conrad Bertram’s recognition of the plaintiff’s mother was conflicting, yet that there was ample testimony showing his recognition of her as his daughter to fully support the finding of the trial court no one will seriously deny.
We have indicated in the statement of this cause a sufficient part of the testimony on the part of the plaintiff to show that the finding of the trial court upon the issue presented was based upon substantial evidence, which, in our opinion, fully supports such finding.
Following the interpretation of the statute so clearly and correctly announced in Adger v. Ackerman, supra, and applying the rules therein announced to the facts of this case, we see no escape from the conclusion that plaintiff, under the law, is the granddaughter of Conrad Bertram, deceased, and as such is entitled to the interest in her grandfather’s estate decreed by the trial court.
We have indicated our views upon the propositions presented by the record, which results in the conclusion that the judgment of the trial court should be affirmed, and it is so ordered.