184 Iowa 307 | Iowa | 1918
“They 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 Eve, Margaret Lillian, and Thomas O. 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 themi 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 fav.or of the plaintiff, and the défendants appeal.
These questions are questions of fact, to be determined from the record before us. The evidence so intermingles these questions that the answer to each must be found in the whole record.
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:
“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 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 were paid for-by the Sing-masters, — 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 bom, Thomas still declared his purpose to marry her, but deferred the consummation of his 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
“I remember of hearing of the plaintiff’s birth at the Singmaster home. I lived near by 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 Thomias 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 was 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, “Dow 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:
*313 “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 Bo we (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 hehr. 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 occurred before Thomas was married.
It appears that Mary Rowe, plaintiff’s mother, frequently came to the home of Samuel Singmaster in company with the little girl, remained there for several hours, ate dinner with the family; and at no time does it appear that any of the members of the family objected to her visits. It is true that the record discloses that, later, — the time does not definitely appear, — Thomas sought to avoid her on these visits. It is not a violent assumption to say that this was after Thomas had formed a purpose not to abide by his promise to marry plaintiff’s mother, if such declared purpose was ever honestly formed in his mind. It is true that many witnesses testified for the defendant that, covering many years following the birth of plaintiff, as late as 1915, they joked Thomas about his relationship with Mary Rowe, and that he denied that plaintiff was his child; and some say that he denied that he had any illicit relationship with Mary Rowe.
That the plaintiff is Thomas’s child, the record submitted furnishes plenary proof. Through him she came into the world, under the handicap of illegitimacy — in the eyes of the world, the bastard offspring of illicit intercourse. Though innocent hersel'f, she rests under the handicap of her mother’s sin, forced through life to bear the burden of her mother’s shame; while her father, in the eyes of the world,
“Though this is true, you cannot divide his paternity with his legitimate offspring, unless, forsooth, he has deigned to recognize you as the offspring of his illicit love; and more than that, you cannot share unless this recognition on the part of your father was general and notorious.”
So the burden rests upon this unfortunate child, driven out though she is in character and life, by the sins of those for whose sins she is in no way responsible, to meet the requirements of the law.
It may be said that none of the facts relied upon, standing alone, in and of itself shows such recognition as the statute requires. It may be that the record discloses, at some time, a studied effort on the part of Thomlas to avoid a public recognition. The plaintiff, with her mother, for 26 years lived in the same neighborhood in which Thomas resided. Some time after plaintiff’s birth, Thomas pledged himself to another woman; subsequently bound himself to her by the solemn vows of marriage. Through her, he brought children into the world. Many of the witnesses who testified to denials on the part of Thomas are not clear as to the date when these denials were made. Much of the testimony- rests in the uncertain memory of men' who had no occasion to remember distinctly the time when or the
Twenty-seven years intervened between the birth of this child and the giving of the testimony found in this record. Many incidents are set out in the testimony which we cannot here reproduce. Many things, trivial in themselves when disassociated from their immediate environment, tell us nothing; but, considered in the light of tne attendant facts and circumstances apparently trivial, tell us much. We are not bound to take the testimony of any witness as true, and we do not do so. That which is true is always consistent with its natural environment. Recognition is a mental process. The condition of the mind is made manifest 'by overt acts or speech. The condition of the mind sometimes finds general recognition, even though effort be made to conceal. A recognition fully and fairly made, leaving a lasting impression on the minds of those with whom the putative father comes in contact in his daily and social life, remains as a permanent recognition. It need not have been universal, or so general and public as to have been known by all. If his conduct among his neighbors and as
“It was also shown by many witnesses that, throughout the Timber Creek neighborhood, the appellant was generally reputed to be the child of Campbell. * * * We recognize that testimony of this kind cannot be determinative of the question * * * but it is competent evidence as bearing upon the question of paternity, when supplemented by substantive facts tending to show that such reputed relation actually existed (citing authorities).”
As supporting our conclusions in this case, — though no case is exactly like another, — see Blair v. Howell, 68 Iowa 619; Van Horn v. Van Horn, 107 Iowa 247; Alston v. Alston, 114 Iowa 29, 30; Robertson v. Campbell, 168 Iowa 47; Luce v. Tompkins, 177 Iowa 168.