Comer v. Comer

Guernsey, P. J. This is an appeal on questions of law from a judgment of the Common Pleas Court of Logan County, in an action brought under the provisions of Section 2741.01 et seq. of the Revised Code to contest the will of one George F. Comer. The action was tried to the court, without benefit of jury and over the objection of the plaintiff, appellant herein, Nelson Comer, on the preliminary issue of whether the plaintiff came within the classification of persons prescribed by the statutes as having the right to maintain the action. In the judgment appealed from the court found on this issue against the plaintiff and ordered the action dismissed. Evidence was adduced to the effect that plaintiff was born on December 6, 1911, to one Mary Reineke, then unmarried; that the record of birth showed his father to be one Harley Kostorfer (sic); that approximately seven months thereafter, on July 23, 1912, plaintiff was baptized; that the baptismal record showed him to be baptized under the name of Nelson Harley John Comer, was silent as to the name of any father, but showed on the margin thereof the names, Reineke, Rostorfer, and Comer; that prior to the birth of plaintiff his mother had *531 been courted by one Harley Rostorfer; that prior to the birth the decedent, George Comer lived in the same neighborhood as plaintiff’s mother and was acquainted with her; that on January 14, 1913, decedent married plaintiff’s mother; that thereafter defendant, Russell L. Comer, was born to this marriage and, except as hereafter appears, plaintiff and defendant were raised as brothers and often referred to by decedent as his “boys” and his “sons”; that on October 31, 1930, plaintiff made application for a marriage license and decedent and plaintiff’s mother gave their consent in writing to the proposed marriage as “parents.” of plaintiff; that shortly prior to his death in 1960 decedent executed a will in which he referred to plaintiff as his stepson; and that during the lifetime of decedent various equivocal declarations were made by him as to whether he was the father of plaintiff and expressions were made by relatives of both plaintiff’s mother and decedent as to plaintiff’s pedigree. Appellant assigns error of the trial court in the following particulars: “1. For error of the court in determining as a matter of law that the plaintiff did not have the interest required to maintain a will contest action. “2. The trial court erred in depriving the appellant of a jury trial on the issue of whether or not appellant was an heir-at-law of George Comer. “3. For error in the admission of evidence over the objection of plaintiff. “4. The findings, conclusions and judgment of the trial court are against the manifest weight of the evidence.” On the hearing of this appeal plaintiff conceded that under existing authority and on the circumstances of this case he would have no right to contest the will of decedent unless his relationship to decedent was that of a natural son. We accept this concession of plaintiff and do not further consider the first assignment of error. With respect to the second assignment of error the case of Zinn v. Ferris, Exr., 15 C. C. (N. S.), 148, 24 C. D., 113, which was affirmed by the Supreme Court without opinion in 88 Ohio St., 555, is the controlling authority. It was held in that case that the question of whether plaintiff has a right to *532 pursue a will contest action is properly tried by the trial court as a preliminary issue and without the benefit of a jury. See, also, Wilson v. Wilson, 8 Ohio App., 258. With reference to the third assignment of error we are likewise in agreement that same has no merit. The validity of the fourth assignment of error depends upon the application of the rules set forth by the Supreme Court of Ohio in the case of Eichorn v. Zedaker, 109 Ohio St., 609, wherein the court held: “By virtue of Section 8591, General Code, in order to establish legitimacy of a child born out of wedlock, it is necessary to prove not only the acknowledgment by the husband after marriage, but also that the husband is in fact the father of such child. An acknowledgment, clearly and unequivocally made, showing the recognition of such child as his child, is sufficient to establish the parentage.” The majority of this court are of the opinion that the first sentence of this syllabus sets forth a substantive rule of law and that the second sentence thereof sets forth merely a rule of evidence applicable to the rule of law. We are further of the opinion that it is implicit in this rule of evidence that the same shall apply to satisfy the requirements of the rule of law only when there is no evidence of probative value to the contrary. In arriving at this conclusion we are mindful of the words of Chief Justice Marshall in his opinion in this case, at page 619: “* * * An examination of the many cases cited and some not cited discloses that, while in many states it is necessary to establish paternity, yet in no case where the governing statute is similar to the Ohio statute is it stated that clear and unequivocal acknowldgment is not evidence of paternity, or that such acknowledgment is not sufficient proof in the absence of rebutting testimony. “* * * This record clearly showing the finding that J. F. Eichorn repeatedly acknowledged Killian as his son, and the record showing no competent evidence of nonaccess, we are not called upon to determine whether a clear unequivocal acknowledgment would establish the status of legitimacy in the face of clear evidence of nonaccess.” (Emphasis added.) In the instant case even were we to consider that any one *533 or more of the declarations of decedent were, in themselves, unequivocal (which we do not decide) there was other evidence of probative value and affirmative in character to the effect that that plaintiff was not the natural son of decedent. On this state of the evidence reasonable minds could differ as to the inferences to be drawn therefrom. Under such circumstances this court cannot, as a matter of law, arrive at a different conclusion on the evidence than did the trial court. State, ex rel. Squire, Supt., v. City of Cleveland, 150 Ohio St., 303. Our conclusions are not altered by the usual policy of the law in favor of the legitimacy of children. As stated in the leading case of Miller v. Anderson, 43 Ohio St., 473, the conclusive presumption of legitimacy does not apply when the marriage takes place after the infant’s birth, and even when marriage takes place before birth the conclusive presumption is not applicable to matters of heirship and inheritance where the rights of persons other than the child are involved. For these reasons it is the opinion and conclusion of the majority of this court that the trial court did not commit any prejudicial error in the particulars assigned and that the judgment of the trial court must, therefore, be affirmed. Judgment affirmed. Middleton, J., concurs.