Brislen v. Huntley

ALLREAD, J.

Epitomized Opinion

Published Only in Ohio Law Abstract

This was an action to partition certain land in Dayton. Brislen claimed one-half of the property in question by descent from Emily McGhee. Huntley claimed that plaintiff had no interest in the porperty and also set up by way of defense a, settlement by the plaintiff with the administrator of Einily McGhee and a release by her of her interest in the estate. In her answer the defendant also asked that her title be quieted. The evidence disclosed that Edna -Huntley was an adopted daughter of the deceased, Emily McGhee, the latter being a saloonkeeper during most of her life. There was no direct evidence that the plaintiff was a daughter of Emily McGhee except the declarations of the deceased herself that Margaret Brislen was her daughter, which declarations were reinforced by a most deliberate recital in a deed of conveyance. There was some evidence indicating that Margaret Brislen was not a daughter of the deceased. The release was signed by Margaret Brislen before the conveyance containing a recital that she was a daughter of the deceased had been found. As an appeal was taken from the Common Pleas Court of Montgomery, the Court of Appeals, in rendering a decree for plaintiff, held:

1. In the nature of circumstances surrounding Emily McGhee it was impossible to secure direct evidence as to the relationship of Margaret Brislen to her; consequently the declarations of the deceased were most reliable and the bqst evidence obtainable, and as these declarations showed that Margaret Brislen was the daughter of the deceased, she was entitled to one-half interest in the real estate' in question.

2. As the principal evidence of relationship was disclosed after the release was signed, the release would not operate as a conveyance nor as a bar to plaintiff’s right to a further interest in the property in question.

Decree of partition granted.