Markey v. Markey

GiveN, J. 1 — I. Appellant moves to strike appellees’ additional abstract, and to tax the cost thereof to appellees on the grounds that the denial of appellant’s abstract is not sufficiently specific; that the matter set out does not add to or take from appellant’s abstract, and does not show that appellant’s abstract is defective. The denial is sufficiently specific, and a comparison of the abstracts shows that the additional abstract is necessary to a full understanding of the case. The motion is overruled. 2 II. Appellant, in his original petition, claims as child and heir at law of deceased, and in his amendment because deceased did, during his lifetime, generally and notoriously recognize the plaintiff as his son. Question is made whether the plaintiff may, in view of the allegations of his petition, also rest the claim upon the allegations of his amendment. Whether he’ may claim as legitimate son and also as a generally and notoriously recognized illegitimate son we do hot determine. It will be observed that plaintiff does not allege in his petition or amendment whether he is the legitimate or illegitimate son of deceased, and we therefore proceed to consider the case on its merits on both claims. 3 III. Plaintiff introduced the deposition of Ellen Sharkey, aged seventy years, sister of the deceased, and for many years a resident of Chicago, Ill. If the testimony of this witness is to be credited, there can be no doubt that the plaintiff is the legitimate son of deceased. She testifies that about sixty years ago she was present at the marriage of her brother to Bessie Mclntee, in the chapel in parish Markilone, county Monaghan, Ireland; that plaintiff was born as the fruit of such marriage, in her father’s house; that she was present at the birth, and helped rear the plaintiff after his mother’s death, which occurred when he was about thirteen months of age. She also states that she was present at the death of plaintiff’s mother. This witness [376] is uncorroborated as to the fact of the marriage, the birth of the plaintiff at her father’s house, and the death of his mother, and is directly contradicted by several witnesses who had equal opportunity to know the facts if they had existed. She is also shown by several witnesses to be a woman of dissolute habits and bad moral character. We need not say more as to the evidence on this branch of the case than that it fails to convince us that the plaintiff is the legitimate son of the deceased. 4 IV. Under section 2466 of the Code of 1873 illegitimate children inherit from their father “whenever the paternity is proven during the life of the father, or that have been recognized by him as his children, but such recognition must have been general and notorious or else in writing.” It appears that the plaintiff was left in the family of Peter Markey, father of the deceased, in Ireland, and was reared and had his home there when not elsewhere at work, until he reached the age of nineteen or twenty. At that time (1857) he came to this country, and went to the home of the deceased, in Illinois, where he remained part of the time up to 1859. The evidence relied upon as establishing recognition is substantially as follows: Plaintiff testifies to frequent acts of recognition while in Illinois, and that the deceased furnished him with clothing and spending money, and collected his wages for work done for others. He also testifies: “He wrote to me, and paid my passage to this country, in 1857, to Chicago'. I wrote, and he sent- me five dollars to Williams & Geyer, steamboat agents in New York, Black Ball Line. He bought clothes for me at Wayne station. He at times sent me some money.” Plaintiff named some fifteen persons to whom he says the deceased introduced him as his son. Also that deceased introduced plaintiff’s wife as his daughter-in-law, and kept her at his house. Five witnesses testified to deceased’s having spoken of or to the plaintiff as his son on a number of occasions while residing in Illinois. There is no evidence of any recognition [377] while the parties resided in Ireland, nor after they separated in Illinois, nor of any communication between them. This evidence of recognition cannot, in the nature of things, be controverted, and for that reason it should be carefully scrutinized, and received with caution. As said in Crouch v. Hooper, 16 Beav. 182: “It is also necessary to remember that in these cases, from the nature of the evidence given, it is not subject to any worldly sanction, it being obviously impossible that any witness should be convicted of perjury for speaking of what he remembers to have been said in a -conversation with a deceased person.” See Laurence v. Laurence, 164 Ill. 367 (45 N. E. Rep. 1073). While it must be said that there is evidence tending to establish recognition, yet, in view of its nature, the length of time that has elapsed, the long periods in which there was no communication between the deceased and the plaintiff, this evidence fails to convince the mind to that degree of certainty that should obtain in such matters that the deceased ever did generally and notoriously recognize the plaintiff as his son. In view of all the circumstances, the fact that plaintiff bought him clothes, furnished him food and shelter, and on one or two occasions collected his wages, does not necessarily indicate the recognition of him as his son. We conclude upon the whole record, that the decree of the district court is correct, and it is aeeirmed.