Van Horn v. Van Horn

107 Iowa 247 | Iowa | 1899

Deemer, J.

Appellee was born in the state of New Jersey in January of the year 1854. His mother was Sarah Ann 'Scales. She died in the year 1859, at the age of 31. About the year 1857 Peter Van Horn, deceased, moved to Howard county, where he resided most of the time until his death. As we have said, he was unmarried, and the defendants are his brothers and sisters, who claim his property by right of inheritance. Appellee claims that Peter Van Horn was his father, and that the deceased recognized him as his son while both lived in the state of New Jersey, both orally and in writing, and that he is entitled to inherit as such. At common law bastards could not inherit from either parent. They were regarded as nullius films, or filius populi. This rule has been changed by statute in this state, which provides that “they [illegitimate children] shall inherit from tire father whenever the paternity is proven during the life of the father, or they have been recognized by him as his children, but such recognization must have been general and notorious or else in writing.” Code 1873, section 2466. They may always inherit from the mother. Code 1873, section 2465. These statutes were enacted prior to the year 1851, as they are found in the Code of that year as sections 1415 and 1416. They were in force at the time of the plaintiff’s birth, and he is entitled to the benefit thereof, provided he has shown that the deceased father generally and notoriously recognized him as his child or made such recognition in writing..

1 At the threshold of the case we are met with the proposition that the court erroneously sustained plaintiff's demurrer to that part of the answer pleading the affirmative defense, and this same proposition is made the basis of objections to some of the evidence adduced. It is said that recognition of plaintiff by the deceased in the state of New Jersey, which state has no statute allowing an illegitimate to inherit, does not give plaintiff the right of succession; and several cases are cited in support of the contention. None of them, however, seem to be exactly in point. The case of Crane v. Crane, 31 Iowa, 296, sheds ño light on the question. In re Sunderland's Estate, 60 Iowa, 732 involved the construction of section 2454, of the Code of 1873, which provides that the heirs of an intestate’s deceased child may inherit in the same manner as though the child had outlived its parents. The question there determined was whether or not a child adopted under the laws of the state of Louisiana was such an one as the statute contemplated. A majority of the court held it was not. Hartinger v. Ferring, 24 Fed. Rep. 15, simply holds that sections 1415 and 1416 of the Code of 1851 are not retroactive. Smith v. Derr's Admr's, 34 Pa. St. 126, holds that a decree of a foreign state legitimatizing an illegitimate child was not binding upon the courts of Pennsylvania in determining the right of succession ox descent of real property situated in that state. In Blythe v. Ayres, 96 Cal. 532 (31 Pac. Rep. 915), Garoutte, J., writes an able opinion covering the entire ground, and he concludes that statutes similar to the one upon which plaintiff relies are statutes of descent, and that the domicile or status of the child and the extraterritorial operation of state laws are wholly immaterial matters. And this, it seems to us, is the correct doctrine. It is written on the hornbook of the law that, as a general rule, the succession of personal property is regulated and governed by the law of the owner’s domicile, while that of real property is governed by the law'of the place where it is situated. 3 Washburn Real Property (3d ed.), p. 16, section 32, and cases cited; Tied-man Real Property, section 664. The statute under consideration is undoubtedly a statute of descent, and must, like other statutes in derogation of the' common law, be liberally construed, with a view to promote its objects and assist the parties in obtaining justice. Code 1873, section 2528. It is quite immaterial, then, where the acts of recognition relied upon occurred; for, if plaintiff brings himself within the terms of the statute, he is the legal heir of the deceased, and entitled to inherit. Such seems to be the conclusion arrived at by the supreme court of the United States in Investment Co. v. Caldwell, 152 U. S. 65 (14 Sup. Ct. Rep. 504). See, also, Caldwell v. Miller, 44 Kan. Sup. 12 (23 Pac. Rep. 946); Harvey v. Ball, 32 Ind. 98; Miller v. Miller, 91 N. Y. 315. It may be that the plaintiff’s status is to be determined by the law of his mother’s domicile, or, in the event of her death, by that of his own, or of his father’s; but with that question we have nothing to do. The sola inquiry here is, is he entitled to inherit the real estate and personal property situated in this state, under the facts presented in evidence? Our conclusion is that the laws of New Jersey are wholly immaterial to this inquiry, and that the trial court was right in sustaining plaintiff’s demurrer. What, then, must plaintiff do in order to establish his heirship> ? This query is answered by turning to the statute, which says, in substance, that paternity must be proven during the lifetime of the father, or that the father must have recognized him as his child, either in writing or generally and notoriously. In construing this statute we have held that this recognition need not be made in the shape of a formal avowal, but may be sufficiently established by letters and correspondence. See Crane v. Crane, supra. And we have also said, in construing the words “general and notorious,” as used in this statute, that “general” is not equivalent to universal, and that “general” means extensive, though not universal; that “notorious” is synonomous with open, and should be construed with reference to the circumstances and surroundings of the parties.

2 With the rules of law thus settled, we now turn to the evidence, and, without setting it out in detail, state our conclusions therefrom as follows: Plaintiff’s mother lived with the father of the deceased as his housekeeoer during the summer and fall of 1853. Deceased, who was then a young man, waited upon her and escorted her to various entertainments. After the birth of plaintiff, deceased visited the mother many times, and spoke of the child as his son. He also gave the mother money with which to purchase clothing for it. It also appears that bastardy proceedings were instituted in the state of New Jersey against the deceased, and .that under these proceedings the mother received aid for the support of the child until she died. One of the defendants made affidavit in which she stated that deceased generally recognized plaintiff as his son, and that such fact was generally known in the neighborhood. Another sister, who is also a defendant, made 'a similar affidavit. Other witnesses testify that while deceased lived in New Jersey he generally called and treated plaintiff as his son, and that he was generally so recognized in the community. In the year 1888 the deceased returned to New Jersey on a visit, and while there inquired after plaintiff, spoke of him as his son, and called him such openly and in the presence of many people. A great number of witnesses testify to having heard of the bastardy proceedings, and say, in effect, that this was common knowledge of the community. Soon after coming to Iowa, the deceased spoke to several people about having an illegitimate son in New Jersey, and so described him as to leave no doubt that he referred to plaintiff. As late as the year 1895 the deceased spoke of plaintiff as his son to his neighbors in Iowa. Prom about the year 1876 until 1885 or 1886, deceased was in the insane hospital at Independence. During the latter years of his life, deceased introduced plaintiff as a relative, sometimes as a nephew and sometimes as a son. There are many other acts of recognition and notoriety, which need not be referred to, as we have said enough to show the general tenor of plaintiffs evidence. Defendants introduced evidence tending to show that deceased denied that plaintiff was his son, and also to the effect that it was not a notorious fact in the community in which he lived. While giving full force to the evidence, it seems to us that there can be no doubt that plaintiff is the son of Peter Van Horn, and that deceased’s recognition of him as such was general and notorious within the meaning heretofore given those terms by this court. We have gone over the entire record with care, and have many times resorted to the transcript; and, without further extending this opinion, it is sufficient to say that, disregarding all improper and irrelevant evidence, of which there was much, we still think that plaintiff has brought himself within the letter of the statutes and is entitled to inherit. The decree of the district court is therefore aeeirmed.