Benson v. Roberson , 1976 Okla. LEXIS 666 ( 1976 )

BARNES, Justice.

This is an appeal by Appellant, John Michael Benson, a minor, by and through his next best friend and legal guardian, Maxine House, from an order of the Trial Court sustaining a demurrer to Appellant’s Objection to Distribution of the Estate of John H. Benson. The Court ordered said estate distributed in accordance with the will, thus excluding the child of the deceased: The Trial Court further held John Michael Benson a bastard child and that the decedent did not voluntarily acknowledge paternity of Appellant in writing before a competent witness or otherwise legitimize said child through his acts, conduct, or words.

The pertinent facts are as hereinafter related. John H. Benson died testate on October 3, 1972, leaving Gwen G. Winters, now Roberson, Appellee, as his sole devisee and legatee. The Last Will and Testament of John H. Benson, deceased, was duly admitted to probate on October 24,1972.

During his lifetime, John H. Benson, while single and approximately twenty-four years of age, was the defendant in a paternity suit filed in the District Court of Kingfisher County, Oklahoma, on July 1, 1959, by one Barbara Buie. Following a jury verdict finding defendant guilty as charged, the Court decreed the defendant to be the “father of John Michael Benson, the bastard child of Barbara Buie.” On February 10, 1960, the County Court of Kingfisher County ordered John H. Benson to support the male child born to Barbara Buie, by making payments of $100.00 per month. In that proceeding, John H. Benson denied paternity of John Michael Benson, Appellant herein; but made support payments for several years pursuant to the Court’s order. Thereafter, a Motion to Modify was filed and a lump sum settlement of $5,500.00 was entered into, relieving him of' further support of John Michael Benson.

It was stipulated in the instant case that were attorney Harry C. Evans to testify he would state he prosecuted the aforementioned paternity complaint before a jury as County Attorney of Kingfisher County and was subsequently retained as private counsel by John Benson for the purpose of negotiating a settlement of all claims of John Michael Benson, the bastard child, and his natural mother, Barbara Buie. It was further stipulated Evans would testify that decedent never acknowledged paternity during the prosecution of the bastardy complaint, during the settlement negotiations, nor at any time thereafter.

Following the paternity suit, Appellant remained in the custody of his natural mother until her death in 1971 and subsequently was supported by his maternal aunt in California.

While John H. Benson’s estate in itself consisted of assets of a relatively nominal amount, he was the sole beneficiary of his mother’s estate, Ruth Hildreth Benson. This estate consists of numerous mineral interests in several Oklahoma Counties, a 100-acre farm in Kingfisher County, Oklahoma, approximately $22,000.00 cash, and certain stocks and personal properties.

After the death of John H. Benson became known, Appellant’s maternal grandmother was appointed his guardian in Oklahoma and filed an Objection to Final Account and Distribution of Assets of John H. Benson. From an adverse ruling therein, Appellant brings this appeal.

Appellant first contends that he is the child and sole heir of John H. Benson and therefore entitled to the distribution of the entire estate. Appellant relies in part on the deposition testimony of John H. Benson and Ruby Taylor. Ruby Taylor, the maid who worked for Ruth Hildreth Benson for twenty years and knew her son, John H. Benson, from the time he was a small boy, testified:

“Q. Did John ever talk to you about that baby, Mrs. Taylor?

“A. He said, yes, it was his baby, he was pretty darn sure it was his baby.”

Her testimony further reflects that Barbara Buie stayed in Ruth Hildreth Benson’s house for several months before the baby was born. Deposition testimony of John H. Benson reflects that in 1957 he had sexual relations with Barbara Buie several times a week when they were dating steadily.

Appellant urges the applicability of 84 O.S.1971, § 132, which provides:

“When any testator omits to provide in his will for any of his children, or for the issue of any deceased child unless it appears that such omission was intentional, such child, or the issue of such child, must have the same share in the estate of the testator, as if he had died intestate, and succeeds thereto as provided in the preceding section.”

We find from our review that the will of John H. Benson exhibits nowhere an intention to omit Appellant herein.

However, other statutes pertinent to this case are 84 O.S.1971, § 215 :

“Every illegitimate child is an heir of the person who in writing, signed in the presence of a competent witness, acknowledges himself to be the father of such child; . . . and inherits his estate, ... in the same manner as if he had been born in lawful wedlock; . . .”

and 10 O.S.1971, §55:

“The father of an illegitimate child by publicly acknowledging it as his own, receiving it as such, with the consent of his wife, if he is married, into his family, and otherwise treating it as if it were a legitimate child, thereby adopts it as such, and such child is thereupon deemed for all purposes legitimate from the time of its birth. The status thus created is that of a child adopted by regular procedure of court. . . .”

For legitimation, Appellant relies primarily on the case of In the Matter of the Estate of Allison LaSarge, deceased, 526 P.2d 930 (Okl.1974), in which this Court said:

“The policy of the law is to favor legitimation of children born out of. wedlock. The severity with which the law formerly dealt with illegitimate children has been tempered both by statute and judicial construction. The effect of legitimating a child under 10 O.S.1971 § 55 is to make such child legitimate from birth and to give the child the right of inheritance.”

In the LaSarge case, supra, the father of the child had a paternity case filed against him and entered a guilty plea thereto. The Court held the illegitimate child did inherit from his father by virtue of the father’s having complied with 10 O.S.1971 § 55, supra. The Court referred to the fact there was a public record of the paternity proceedings and said therein:

“It would seem that the plea of guilty was sufficient to constitute public acknowledgment. It is a matter of public record regardless of the other actions of decedent.”

Appellant suggests that the deposition testimony of John H. Benson, the maid, Ruby Taylor, and the appearance docket indicating support payments made by Appellant, including the final lump sum payment of $5,500.00, constitutes public acknowledgment by John H. Benson that Michael Benson was his child. He relies on the following language from the La-Sarge case, supra:

“There is no express definition in the statute of the phrase ‘public acknowledgment’, but the phrase has been generally employed in the ordinary or commonly understood sense of disclosing facts of paternity without concealment to relatives, friends, acquaintances, and other third persons. It is generally held that the recognition need not be universal or so general and public as to have been known by all. Trier v. Singmaster, 184 Iowa 307, 167 N.W. 538, 541 (1918).”

While Appellant argues that the appearance docket and trial ■ docket journal are public records and may constitute a public acknowledgment, the record reflects Appellant has wholly failed to produce an instrument in writing acknowledging paternity which would invoke the provisions of 84 O.S.1971 § 215, supra.

Furthermore, after carefully reviewing the LaSarge case, supra, we find it to be distinguishable from the case at bar in that there a plea of guilty was entered to a bastardy complaint, while in the instant case John H. Benson entered a plea of not guilty. Moreover, the putative father in LaSarge legitimized the child by his conduct publicly and by his actions, including acknowledgment ■ of paternity to the Court, a priest, various relatives, and merchants in the town.

10 O.S.1971, § 55 was construed by this Court in Thompson v. Thompson, 177 Okl. 437, 60 P.2d 615 (Okl.1936), where we said in the first and second syllabi:

“1. To establish claim of legitimation, claimant must establish ^illegitimacy, paternity, that father publicly acknowledged claimant to be his children during minority, reception into father’s family with wife’s consent given with knowledge of illegitimacy, and treatment of claimant as legitimate.

“2. The burden of proof to establish all elements of legitimation is upon the claimant.”

In Hunter v. Hunter, 206 Okl. 573, 244 P.2d 1140, we alluded to the sufficiency of evidence of public acknowledgments:

“While there is some evidence that he acknowledged to certain individuals that he was the father of the child, yet he never did so publicly. Also the appellant’s mother, and others, gave evidence of such public acknowledgment, and acceptance into her home while deceased purportedly lived with her in the alleged common-law marital relationship but such evidence, if true, was insufficient.”

. Appellant also contends the payments of ‘support in settlement of the bastardy proceeding indicate acknowledgment of paternity. Those monthly payments were made as a result of the Court’s order and thus could not be considered voluntary support. We do not think the bastardy proceeding reflects an acknowledgment of paternity but merely settlement of the obligations imposed by reason of the adverse finding to John H. Benson in the proceeding.

Regarding the issue of equating a judicial determination of paternity to a public acknowledgment of a child by a putative father, we find no decisions reported in this jurisdiction. However, we find the following cases from other jurisdictions highly persuasive.

In the California case of In re Estate of Ginochio, 43 Cal.App.3d 412, 117 Cal.Rptr. 565 (1974), the Court had occasion to apply California Civ.Code, § 255, which is almost identical to 84 O.S.1971 § 215. In that case the putative father denied paternity and in a subsequent trial the issue was again contested. The paternity action against Edward Ginochio was determined adversely to the putative father and judgment established-paternity and ordered support. Thereafter, Edward Ginochio died testate leaving a will dated after the paternity action, which instrument omitted the illegitimate child. The child contended that a judicial determination of paternity is equivalent to an acknowledgment by the father in writing within the meaning of California Civ.Code, § 255. The Court of Appeals, in affirming a decision of the Superior Court, stated:

“While paternity is a precondition of legitimation by adoption under Civil Code, section 230, and the judicial determination thereof is conclusive in such a proceeding (Adoption of Pierce (1971) 15 Cal.App.3d 244, 249, 93 Cal.Rptr. 171 ; Garcia v. Garcia (1957) 148 Cal.App.2d 147, 306 P.2d 80), it is to be observed that the establishment of paternity is neither a statutory requisite to obtain inheritance rights under section 255, nor can it serve as a substitute for the statutory mandate which requires in clear and unequivocal terms that the father acknowledge ‘himself to be the father’ in writing, signed in the presence of a competent witness. In light of the clear statutory language, appellant’s contention that the judicial determination of paternity should he equated with the public acknowledgment of the child, which by definition postulates a voluntary act on the part of the father, is contrary to law (cf. In re Estate of Pakarinen (1970) 287 Minn. 330, 178 N.W.2d 714, 715, app. dism., 402 U.S. 903, 91 S.Ct. 1384, 28 L. Ed.2d 644), and cannot be accepted.” (Emphasis ours)

The California Court then considered the issue of whether the putative father acknowledged the child in the prescribed statutory fashion so as to legitimate the child for inheritance purposes :

“The foregoing discussion inevitably leads to the conclusion that the legal issue of whether or not appellant became Edward’s heir does not turn on the judicial determination of paternity, but rather on the factual question whether or not he was acknowledged by Edward in the prescribed statutory fashion. To this question the record at hand gives a definite and unequivocal answer. It shows beyond any shred of doubt that Edward was declared Seane’s father against his own will. He denied paternity in the action which was brought by Marietta to establish the parent-child relationship. Although he paid the child support ordered by the court, at no time did he admit that he was Seane’s father. He never lived with or visited the child, the child was never received into his family, and Edward never signed any writing acknowledging publicly or privately that he was the father of the child. In view of this record, we are compelled to hold that appellant has not been legitimated in any manner authorized by law and therefore failed to qualify as Edward’s heir under section 255.”

In the case of In Re Karger's Estate, 253 Minn. 542, 93 N.W.2d 137 (1958), the Minnesota Supreme Court said in the fifth syllabus:

“5. An adjudication of paternity does not of itself create any right of inheritance by a child from his putative father and such adjudication is not the equivalent of a written declaration of paternity as prescribed in § 525.172.”

In that case involving paternity proceedings a jury adjudged the decedent to be the father of appellant. Again the Court had before it a statute similar to Oklahoma’s Section 215, requiring that the illegitimate child could inherit from the father only if the latter had in writing acknowledged he was the child’s father before attesting witnesses.

We find Appellant’s position is not supported by the facts herein or law. We conclude the Trial Court was correct and should be affirmed.

Affirmed.

WILLIAMS, C. J., and DAVISON, BERRY and SIMMS, JJ., concur. HODGES, V. C. J., and IRWIN, LAVENDER and DOOLIN, JJ., dissent.