McCorkendale v. McCorkendale

Sherwin, J. [316] 1 2 3 [315] On the seventeenth day of May, 1896, Neil McCorkendale died intestate, seised in fee of the land in controversy. He left surviving him his widow, Mary McCorkendale, one of the defendants herein. No children were born to Neil and Mary McCorkendale. The parents of the deceased died before the seventeenth day of May, 1896. The plaintiffs are his brothers and sisters, and brought this action to quiet their title to the undivided one-half of the land in question; alleging that one Janet Armour, and her son, Lawrence Armour, were in possession of a part of the land, claiming an interest therein adverse to the plaintiffs. Each of the defendants, Mary McCorkendale, Janet Armour, and Lawrence Armour, filed a separate answer, all alleging that Lawrence Armour is the son of Janet Armour and the illegitimate son of Neil McCorkendale, and alleging further that Neil McCorkendale during liis lifetime had recognized him as his child, in writing and otherwise, and that such recognition was general and notorious. Based upon the facts so plead, Lawrence Armour claims to inherit two-thirds of the estate of the deceased. Janet Armour and Mary McCorkendale, the widow of the' deceased, are sisters. They were also first cousins of Neil McCorkendale. Janet lived with deceased and her sister in Sac county from J une, 1883, until about April 23, 1885. It is proven that Lawrence Armour was born in Joilet, 111., April 28, 1885, and lived there with his mother eight years, and that she, with the child, thereafter moved to Minneapolis, Minn. It is [316] conceded that Neil McCorkendale never saw Janet Armour after she left Sac county, in 1885, and that he never saw Lawrence Armour, and that neither the mother nor the child was ever in this state after his birth until subsequent to the death of Neil McCorkendale. It is proven beyond question that Janet Armour is the mother of the defendant Lawrence Armour, and that he was born out of wedlock. There is also some competent evidence in the record which tends to show that Neil McCorkendale was his father. The questions, however, which we have to determine, are whether Neil McCorkendale recognzied Lawrence Armour as his son, and, if he did, whether such recognition was the general and notorious recognition required by the statute, or whether the recognition was in writing, as claimed. Lexicographers say the word “general” means “common to many or the majority; extensive though not universal,” — and that “notorious” means “generally or commonly known, acknowledged, or spoken of.” That it was quite generally understood in the community Avhere Mr. Mc-Corkendale lived that Janet Armdur had given birth to a child, and that he was the father, we think is abundantly proved by the record. But the record falls far shorf of proving that he recognized the child as his. It is shown that he partially admitted to one of his acquaintances that he had a boy somewhere. To another he stated he had ruined Janet Armour, and that she was pregnant; to a third, that Janet had “played the devil,” and “was going to1 have a young one,” and “that he Avas going to send her money.” It is shown that the community where deceased lived at this time was a thickly-settled one, and it cannot be said that these statements, given their broadest meaning, constitute the general and notorious recognition required by the statute. The written recognition relied upon consists of letters claimed to have been Avritten to Janet Armour by deceased, only one of which was produced upon the trial. This is dated at Odebolt, Iowa, April 23, 1896, and begins, “Dear [317] Janet,” and purports to have been-signed by Neil McCorkendale, and witnesses were called who testified that the signature- thereto was genuine. The letter contains this language: “I am thinking on you every day, and it is in my mind all the time to have you so far away alone among strangers, but I hope the boy will be good to- you when he gets older. If he takes after me, he will. * * * I think, when the boy will be old enough, it will be better for you both to. be on a. farm. * * * You wanted to know if John showed me the boy’s picture. ITe never mentioned it to me. If he got it, I never heard any one say, but I have the picture here before me, and I think it very pretty. He looks like yourself more than like me.” Below the signature to the letter was written in the Gaelic language a sentence which, translated ' into English, means, “You are my best love forever;” and, in English: “Write as soon as you can. Goodby, with love to both, and kiss for my boy.” In connection with this letter an envelope was offered in evidence, addressed to Miss Janet Armour, Minneapolis, Minn., which was postmarked: “Odebo-lt, Apr. 7, p>. m., 1896, Iowa.” It is conceded by appellants that without explanation the above letter would be to some extent, at least, unintelligible. We fully agree with this conclusion, and unless there is legal evidence identifying the letter itself, and proving that it was received by Janet Armour, and explaining its meaning, it must be held not to- furnish written recognition by Neil McCorkendale of Lawrence Armour as his son. The necessary evidence to make this letter intelligible and material, and to prove that it was received by Janet Armour, was offered in the testimony of Janet herself. Her testimony as to sexual intercourse with Neil McCorkendale was also offered. To all of this testimony the objection was made that-her testimony as to personal transactions or communications between herself and the deceased was incompetent. The statute says that “no party [318] to any action or proceeding shall be examined as a witness in regard to any personal transactions or communications between such witness and a person at the commencement of such examination deceased/’ etc. Janet Armour was a competent witness as to many things that she did testify to, and when she was interrogated as to any matter within the inhibition of the statute the objection was promptly made. We think it was sufficient in form and timely. The witness was a party to the suit, and could not testify as to personal transactions or communications between herself and Neil McOorkendale. Williams v. Barrett, 52 Iowa, 641; Burton v. Baldwin, 61 Iowa, 283. That the letters she claimed to have received from him are within the prohibition of the statute is well settled, and it would seem hardly necessary to cite authorities, so plain is the language of the statute itself, which is broad enough to, and must be held to, embrace every communication, whether written or oral, direct or indirect. Dysart v. Furrow, 90 Iowa, 59; Martin v. Shannon, 92 Iowa, 375; Cole v. Marsh, 92 Iowa, 379; Kroh v. Heins, 48 Neb. 691 (67 N. W. Rep. 771); Van Vechten v. Van Vechten, 65 Hun, 215 (20 N. Y. Supp. 140); Holcomb v. Holcomb, 95 N. Y. 316; Holliday v. McKinne, 22 Fla. 153; Sabre v. Smith, 62 N. H. 663. What has been said with reference to the testimony of Janet Armour applies also- to- that of Mary McOorkendale, the widow, who is also a party, and attempted to testify, over the objection of plaintiffs, as to statements of deceased regarding this boy. Mary McOorkendale, in a cross petition, claimed that certain of this land had been deeded to her by her husband some time before his death. Beference only is made to this in argument. The trial court denied her the relief prayed, and we think rightly so. The other questions raised by appellees we need not discuss. The decree is affirmed.