Pfeifer v. Wright

41 F.2d 464, 73 A.L.R. 932, 1930 U.S. App. LEXIS 2812

• Court: Court of Appeals for the Tenth Circuit
• Decided: June 12, 1930
• Docket: 156
• Status: Published

Opinions

LEWIS, Circuit Judge.

This appeal is from an order sustaining a demurrer to and dismissing appellant’s bill of complaint. She claims an interest as heir in the estate of James H. Wright, who resided in Creek county, Oklahoma, for several years just prior to his death, which occurred about March 1, 1928. The issues are, (1) whether appellant, decedent’s illegitimate child, was made legitimate under Kansas statutes and thus his heir to property in Oklahoma under the laws of that state, and (2) whether decedent was intestate of any of his estate.

The bill shows'that appellant was the illegitimate child of deeedent, that she was bom September 5, 1883, in Kansas, where her mother and father then resided on adjoining farms in Wilson county. At her birth her mother was 18 years and her father 20 years of age, they were children of reputable neighbors, they were lovers and intended and expected to marry; but the parents-of the mother went to the home of James soon after the child was bom and notified his parents that they would not permit their daughter to marry him. At the request of James the child was given his name, she being thereafter known as Minnie Wright until she grew up and married E. Q. Pfeifer. The mother continued to reside in Wilson county until her death, when her child was about 14 years of age. James H. Wright continued to live with his father’s family for about seven years after the birth of the child, when he went away. When Minnie was quite young he took her to his father’s home on different occasions, where she was kept for a while, sometimes for weeks. He taught her to address him as father, to address his father and mother as grandfather and grandmother, and to address his brothers and sisters as uncles and aunts. He would at times take her about the neighborhood and introduce her as his daughter. He showed a fatherly affection for Minnie from her birth until his death, and she addressed him as father on. all occasions. He provided for her support and maintenance during her childhood, and assisted her during all his lifetime. When Minnie married E. G. Pfeifer the decedent purchased a farm in Wilson county at a cost of about $9,000 and gave Mrs. Pfeifer and her husband the possession and use of it without charge. About two years before his death he and his wife, Rosa B., the appellee, visited Mrs. Pfeifer at her home on the farm and while there they eonveyed by deed a life estate in the farm to her and the remainder in fee to her children. He provided funds for Mrs. Pfeifer’s daughter to attend high school and normal school and always referred to her children as his grandchildren. In his letters to her he would address her as “My dear Daughter.” He loft no other children or descendants of children, nor did his father or mother survive him.

The said acts, conduct and treatment of appellant by the said James II. Wright constituted, it is alleged and claimed, general and notorious recognition of appellant as his daughter, and were sufficient under provisions of the Kansas statute to legitimate her and give to her the status of a lawful child of decedent, thus constituting her an heir to him according to the laws of Oklahoma, where all of his property was situate at the time of his death. In that respect the bill alleges:

“The said public acknowledgment so made on the part of the said Wright was sufficient to satisfy the law of the state of Kansas of the eertainty that the said Wright was the father of the plaintiff. The said public acknowledgment operated to attach to the plaintiff the social status of a legitimate daughter of the said Wright. One of the incidents of such social status of the plaintiff as the daughter of the said Wright, was to inherit from her father according to a child born in wedlock, real and personal property, according to the laws of the descent and distribution of the state in which the property was situated at the time of the death of her father. The plaintiff states, that her social status, under the rule of the comity of law among the several states, as a daughter of the said Wright, as established and recognized by the laws of the state of Kansas, is entitled to force and effect in the state of Oklahoma. The plaintiff alleges that she is entitled to inherit property from her father in the state of Oklahoma according to the law which relates to the descent of property from the father to his children bom in wedlock.”

Under the common law an illegitimate child was held to be films nullius or filius populi, it was without right even to the name of its natural father, and being without inheritable blood it could acquire nothing except by its own efforts. From an early day the states began to regard and deal with this-unfortunate condition in a more humane and just way, as did the civil law (see Brightly’s notes to Stevenson v. Sullivant, 5 Wheat. 207, 5 L. Ed. 70), which provided several methods by which the child’s status could be changed to that of a lawful child, thus effecting legitimation and placing the child in all respects upon the same footing as if begotten and born in wedlock. In England at the common law legitimation could be effected only by act of Parliament; but by whatever method made, when made, the child is invested with all the rights of a lawful child. Its civil and social status becomes that of a lawful child of the natural father, and the child and father thereafter stand in their relations to each other as though the birth had been during wedlock. Statutes of the several states all following the general purposes of the civil law are not uniform on the subject — some require marriage of the mother and putative father and recognition of the child, or receiving it into the family. That seems to be the general type, but others may be-less exacting to effect legitimation. None of them appear to require court procedure. That omission, it is said, is in avoidance of perpetuating the shame. So uniformly,"proof of compliance with statutory requirements, when the question arises, rests in pais. Laws of the domicile of the father at the time he acts determine the effect of his aets, and if his aets are such as to effectuate legitimation as declared by those laws) the status of the child is thereby changed from illegitimate to legitimate. That status, when once changed, is said to be indelible, and is to be accepted in other jurisdictions' for the purposes of descent of real property and the distribution of 'personal property of the father. Wharton on the Conflict of Laws (3d Ed.) vol. 1, p. 552; Ross v. Ross, 129 Mass. 243, 37 Am. Rep. 321; Miller v. Miller, 91 N. Y. 315, 43 Am. Rep. 669; Irving v. Ford, 183 Mass. 448, 67 N. E. 366, 65 L. R. A. 177, 97 Am. St. Rep. 447; Dayton v. Adkisson, 45 N. J. Eq. 603, 17 A. 964, 4 L. R. A. 488, 14 Am. St. Rep. 763; In re Presley’s Estate, 113 Okl. 160, 240 P. 89; Fowler v. Fowler, 131 N. C. 169, 42 S. E. 563, 59 L. R. A. 317; In re Forney’s Estate, 43 Nev. 227, 184 P. 206, 186 P. 678, 24 A. L. R. 553; 12 C. J. p. 460. Under Oklahoma statute, where a decedent leaves a wife and only one child, and no lawful issue of other child, they take in equal shares intestate property of the deceased husband and father.

But, in addition to statutes in many states providing conditions on which an illegitimate child becomes legitimate, there are also statutes providing conditions on which an illegitimate child may become an heir to its father. This is so in the states of California (Blythe v. Ayres, 96 Cal. 532, 31 P. 915, 924, 19 L. R. A. 40), Iowa (Brisbin v. Huntington, 128 Iowa, 166, 103 N. W. 145, 5 Ann. Cas. 931), North Dakota (Eddie v. Eddie, 8 N. D. 376, 79 N. W. 856, 73 Am. St. Rep. 765), and Oklahoma (Comp. Stats. Okl. 1921, § 11303), and perhaps others. That is there are statutes giving an illegitimate the right to inherit from the father as an illegitimate on named conditions; and other statutes legitimating illegitimates on conditions named, thus giving to them the status of lawful children, and then their right to inherit from the father is because they have been made lawful children and inherit as such. The Oklahoma statute cited above embodies both conditions. It names those on which an illegitimate may inherit as such from its father; and it also names conditions, different in kind arid requiring the subsequent marriage of the mother and father, on which the child is made legitimate. The bill does not allege compliance with conditions which permit an illegitimate to inherit as such under the Oklahoma statute. In that respect the statute requires that the father shall acknowledge his paternity in writing signed in the presence of a competent witness. Holloway v. McCormick, 41 Okl. 1, 136 P. 1111, 1114, 50 L. R. A. (N. S.) 536.

It is not contended by appellee that the facts stated in the bill of complaint do not bring appellant within the literal terms of the Kansas statute, but appellee contends that the Kansas statute is not one of legitimation, that it does not purport on compliance with its conditions to change the status of the child from illegitimate to legitimate, that it is only a statute of descent and applicable only to property in Kansas, that it can have no extraterritorial force or effect and therefore appellant cannot inherit as the decedent’s child in Oklahoma. There is not now, nor has there- ever been so far as we are advised, a statute of Kansas which specifically deals with the subject of legitimation; but since an early day, and ever since the Revision of 1868 that state has had in force the statute on which appellant relies. The sections, as they are numbered in the Revision of 1923, are 22 — 121, 22 — 122, 22 — 123, and 22 — 124. Appellant relies principally upon the second numbered section. The four sections read thus:

“Illegitimate children inherit from the mother, and the mother from the children.

“They shall also inherit from the father whenever they have been recognized by him as his children; but such recognition must have been general and notorious, or else in writing.

“Under sueh circumstances, if the recognition of relationship has been mutual the father may inherit from his illegitimate children.

“In thus inheriting from an illegitimate child, the mother and her heirs take preference of the father and Ms heirs.”

The inquiry then is, whether on the facts stated in the bill this statute legitimated appellant, so as to give her the status of a lawful child, and thus make her an heir to decedent as such; or whether the statute only made her an heir to decedent as an illegitimate, effectual only as to property in Kansas.

Wo are unable to say that the statute relied on discloses a legislative intention to change the status of a child from, illegitimate to legitimate. Its only purpose, so far as we are able to discover from its terms, is to give to an illegitimate child as such the right to inherit from the father on the conditions named. But the claim of appellant seems to bo that the Kansas Supreme Court has construed it to bo a legitimation statute, that compliance with it legitimates the child. , If that be so we willingly accept the construction, as it is our duty to do.

The first case in which the Supreme Court of Kansas dealt with this statute is Brown v. Belmarde, 3 Kan. 41, and said of the second quoted section, supra, that it “shows that it is not necessary that children be legitimate in order to inherit from the father. The issue of a man and his mistress might inherit from the father, if recognized as his children in the manner pointed out by the statute; yet the issue would nevertheless be illegitimate. The recognition would not make them legitimate, but merely give to them the quality of inheritors.” It may be said that these comments of the court were in a sense dictum, because it was later pointed out that the father had died before the statute was enacted, and as to that the court said: “At the time the recognition must have taken place, there was no law in force giving to that act sueh an effect. To give it any legal effect whatever there must have been some law in existence prescribing what that effect should be. The aet of 1859 cannot reach back and attach to an action, which at the time of its performance was entirely indifferent, such grave, legal consequences.” Moreover, another statute of Kansas provided that the common law of England should be the law of the land and rule of decision, and the court decided that case according to the rules of the common law on the subject of illegitimacy affecting the right of inheritance, and hence the court held that the third instruction requested at the trial of that case, which deraigned title through the illegitimate son from the putative father, was properly refused; because according to the common law the illegitimate was without inheritable blood. But in that case the statute was brought under consideration, and it became the duty of the court to pass on it. Nor have the views thus expressed in that case been modified , since or changed. There are only two other eases that can be said to have any reference to or bearing on the point, Smith v. Smith, 105 Kan. 294, 182 P. 538, and Fett v. Riemann, 124 Kan. 539, 262 P. 16, 17. The question presented in the Smith Case was whether, under the Kansas statute, recognition by the father gave to the illegitimate child the right of inheritance through the father from his collateral kindred, to the same extent as a child bom in lawful wedlock, and the child’s right to so inherit was sustained. There are some broad expressions in the opinion to the effect that when all of the sections quoted supra, are considered they indicate a legislative purpose to take away the disqualification resulting from illegitimacy and to give an illegitimate the status of a general heir. However, the property there involved was situate in Kansas ; there was nothing said about the child’s social status or whether it had been made legitimate under the statute; and for purposes of that case its rights were the same under the statute, as construed, whether it inherited as an illegitimate or as a legitimate child. The court did not say its status as general heir was because the statute had legitimated it. In the Eett Case the court had for decision the question whether restrictions on the rights of inheritance of an adopted child, laid by the laws of Illinois, where the child was adopted, should be applied to the descent and distribution of property left by a brother of the adoptive father. The court rejected this restriction as to property in Kansas of collateral kindred. The Kansas statute gives an adopted child the same rights of person and property as a legitimate child. In the opinion the,court called attention to the hostile attitude of the common law toward the subject of legitimation and adoption of children, and in that connection said: “Our lawmakers deliberately crossed over to the side of the civil law — an historical fact which gives a keynote to the general trena of decisions of this court throughout its entire history.” Obviously, the issue we have here was not decided in that case. These three Kansas cases are the nearest in approach to a construction of the statute, as now contended for by appellant. The first one, in so far as it has weight, is against the contention. The other two cannot be said to construe the statute as a legitimation statute. We are clearly of opinion that the Kansas court has not so construed the statute, and we are unable to so construe it.

James H. Wright left an estate all in Oklahoma valued at more than one million dollars. After making a number of small bequests amounting to a little over six thousand dollars he closed his will with this paragraph: “And I give and bequeath to my wife, Rosa B. Wright, the balance of my property both real and personal to be used by-her so. long' as she lives and enjoys the same.”

It is appellant’s contention that appellee took only a life estate, and that subject thereto the remainder vested by decedent under the Oklahoma statute in appellant and appellee share and share alike. But inasmuch as it is our conclusion that appellant was not legitimated under the Kansas statute and cannot take as an heir of decedent property in Oklahoma, she cannot maintain this suit— being without interest; and we therefore think it unnecessary and inappropriate that we pass upon the will for the purpose of determining the estate devised and bequeathed to Mrs. Wright.

The judgment is affirmed.