
    BASTARDS — EVIDENCE—WILLS.
    [Belmont (7th) Court of Appeals,
    December 5, 1917.]
    Pollock, Metcalfe and Parr, JJ.
    Carl S. LaRoche v. William F. LaRoche. Carl S. LaRoche v. Louis F. LaRoche et al.
    1. Deed of Share in Vested Remainder Conveys no Interest Upon Donee’s Being Divested by Death.
    Where by will a testator devises all of his real estate to his wife for the remainder of her natural life, or so long as she remains unmarried, and provides that in the event of her remarriage that she should have such portion of the estate as the law fixes for a surviving widow, and that the remainder be equally divided among his four children named in said will, and further that if any of them be deceased at the time of such remarriage, leaving no issue, that such share or shares be equally divided among his other children, and in a further item that at the death, of his said wife, should she remain unmarried until that time, that all of his estate real and personal should be then equally divided among his “sons aforesaid” and in the event that any were deceased at the death of the wife, then the share of such deceased son should go to his children and if no children living, then such share should be equally divided among his remaining children, or their heirs, such will vested in each child his proportionate share of said estate at the death of the testator, subject to being divested by the death of such child before the death of the widow and a deed or will made by such child for his share in said estate and prior to the death of the widow will not convey any title or interest in and to such share.
    2. Marriage of Pregnant Woman and Bequest to Child Recognition of Legitimacy.
    Where a man marries a pregnant woman who has preferred a bastardy charge against him and later a child is born in lawful wedlock and the putative father visits the mother and child soon after birth and afterwards makes a bequest to said child in his last will and testament, such recognition is a sufficient acknowledgement under favor of Sec. 8591 G. C. to render such son legitimate.
    3. Legitimacy of Child Begotten Before Marriage Shown by Preponderance of Proof.
    To establish status as heir or heirship of one begotten out of but born in lawful wedlock, it is not required that the proof be clear and convincing; such claim need be shown affirmatively only; that is, by a preponderance of the evidence, the burden being upon the one asserting such claim.
    4. Devise to Heirs of Child Born out of Wedlock and Treated a* Member of Testator’s Family Vests in Son of Such Child.
    Where a man marries a woman having a son bom out of lawful wedlock and such son is taken into their home and treated as one of the family, is given and known by the family name; is referred to in the last will and testament of the husband as one of his children, and as his son, and such will further pro vides that if, at the death of his surviving widow, who is bequeathed a life estate in his realty, any of his sons shall be deceased the children of such son are to have his share, such recognition and testamentary provision are sufficient to entitle the son of such person horn out of lawful wedlock, his father being dead, to take directly under the provisions of said will.
    5. Presumption from Birth in Lawful Wedlock Upon Right to Inhrrit. „ Proof of birth within lawful wedlock raises the presumption of the right of heirship or the right to inherit through the father.
    [Syllabus by the court.]
    Appeal.
    
      C..C. Sedgwick and Ileinlein, Spriggs tls James, for plaintiff.
    
      Kennon cf Kennon, for defendants.
   FARR, J.

The eases of Carl S. LaRoehe, plaintiff, against William F. LaRoehe, defendant, and Carl S. LaRoehe, plaintiff, against Louis F. LaRoehe et ah, defendants, were actions in partition filed concurrently on September 26, 1916, in the court of common pleas of this county. In the first case the plaintiff seeks the partition of lots numbered 19 and 73 in Harris’ addition to the city of Bellaire. In the second action partition is sought of certain real estate of which John LaRoehe, Jr., died seized. To each petition an answer was filed denying that the plaintiff had any right, title or interest in and to the premises sought to be partitioned and that title vested in defendants, and in the first case, it is sought by cross petition to quiet the title to the premises described in the petition.

Partition was ordered in the court below, from which order and judgment an appeal was taken to this court. Said causes were heard together here and.will be decided in like manner.

In the first ease the plaintiff, Carl S. LaRoehe claims an undivided one-third interest in and to the lots' above mentioned which the defendant denies and.alleges that he is the sole owner of said premises in fee simple. The plaintiff claims title by certain provisions of the last will and testament of John LaRoehe, Sr., hereinafter quoted. The defendant claims title by provisions of said will and tbe last will and testament of Fred LaRoche, deceased, and by reason of a certain deed made and delivered by said Fred LaRoche to him on or about October 8, 1888.

John LaRoche, Sr., died testate June 9, 1884, and his last will and testament was duly admitted to probate in this county June 30, 1884. Fred LaRoche died testate on or about October 21, 1888. John LaRoche, Jr., died intestate and without issue in 1890. Charlotte Schumacher LaRoche, widow of John La-Roche, Sr., died June 21, 1908. John LaRoche, Sr., and Charlotte Schumacher were married in Germany in 1852. At the time of said marriage said Charlotte Schumacher had a son, Fred, about two years of age, born out of wedlock who, ever after said marriage, made his home in the home of John LaRoche, Sr., until the time of his (Fred’s) death, on said October 8, 1888. A few days prior to his death Fred LaRoche, so known in the community, made a last will and testament and a deed of conveyance devising and conveying all of his estate to said John LaRoche, Jr., including any interest he might have in and to the estate of John LaRoche, Sr. Fred LaRoche, in 1879 was charged by one Samantha Roofer with being the father of her unborn child; their marriage followed at St. Clairsville on March 18 of that year and on May 16 following, about two months later, this plaintiff Carl S. LaRoche, was bom and he bases his right to partition herein upon the claim that he is the son of said Fred LaRoche, deceased, but elaims not herein from Fred LaRoche but directly from said John LaRoche, Sr., and under favor of the third, fourth and fifth items of the said last will and testament of John LaRoche, Sr., deceased, which read as follows:

“Item 3. I give and devise to my said wife all my real estate during her natural life or so long as she remains unmarried, she to have all the rents and profits, keep the same in repair and pay all taxes.
“Item 4. In ease my said wife shall marry again she shall then only have such share or portion of my estate as the law allows, and the remainder shall be equally divided among my four children, Fred, Louis, John and William LaRoche, and in case either or any of them should be deceased at such time leaving no children, the share of such one shall be equally divided among my other children.
‘ ‘ Item 5. At the death of my, said wife, should she remain unmarried until that time, it is my will that all my estate, real and personal, be then equally divided among my four sons aforesaid, and in ease any shall be deceaséd at that time his children are to have his share, and if he has no children living the same shall be equally divided among the remaining ones or their heirs.”

The determination of the issue here involves the construction of the foregoing items, and is simply this: did the interest or share of Fred LaRoche under said will vest in him absolutely during his life time so that he might devise it by will or convey it by deed ? If so Carl S. LaRoche has no interest and is not entitled to partition because Fred LaRoche, whom he claims was his father, sought to devise by will and convey by deed to defendant herein the property asked to be partitioned. If on the other hand said interest did not vest or vested subject to being divested upon the death of Fred LaRoche before the death of his mother Charlotte LaRoche, then Fred LaRoche had no interest to convey to John LaRoche, Jr., which he attempted to do by will and deed, as above stated.

In order that subsequent discussion may be better understood, the relation of the parties will be here considered.

It is urged in argument that Fred LaRoche, soealled, was not the son of John LaRoche, Sr., and therefore, Carl S. LaRoche, even though he be the son of Fred LaRoche, could not take directly from John LaRoche, Sr. It must be noted that said testator in item fourth provides as follows: “The remainder shall be equally divided among my four children: Fred, Louis, John and William LaRoche,” and again in item fifth the testator provides among other things that “all my estate real and personal be then equally divided among my sons aforesaid. ’ ’

It will be observed that in the foregoing said testator designates Fred as one of his “children,” also as his “son.” And having so provided, it must be so considered no matter whose son he was, though he be the son of a neighbor the testator might elect to include him as he did in his will with his children born in lawful wedlock, and he further provided that if Fred be deceased at the date of the death of his, testator’s wife, that his children should have his share. In any event Carl La-Roche may take under said will if he is Fred LaRoche’s son which will be discussed later.

However, the record discloses that the boy Fred was taken into the home of John LaRoche, Sr., upon his intermarriage with the mother and there reared and treated as one of the children until the time of his (Fred’s) death, when his body was laid in the family lot in Rose Hill cemetery, and his name inscribed on the “LaRoche” family monument and so paternal was the conduct of John LaRoche, Sr., toward Fred, that Louis LaRoche says that until he (Louis) reached the age of 15 years he considered Fred his older brother and John LaRoche, Sr., by and in that solemn instrument, his last will and testament, designates Fred as one of his “children” and as one of his “sons aforesaid.” May be the testator and his wife brought a secret from Germany which they prudently and properly enough, saw fit not to impart to others, but be that as it may, it is to the credit of John LaRoche, Sr., that whether or not he was the natural father of Fred, he did his full duty by him and fittingly and fully acknowledged him as one of the rightful objects of his bounty, and so far as the provisions of this will are concerned he may be treated as a son.

Objection is made to the testimony of William and Louis F. LaRoche in this and the court below which it is claimed is admissible under the last clause of Sec. 11945 G. C. Without taking time to discuss the issue fully, suffice it to say that said testimony is found to be incompetent in view of the provisions of said section, therefore, it must be practically eliminated from the consideration of this ease.

However, to maintain his right to partition herein, Carl S. LaRoche must be found to be the son of Fred LaRoche, deceased. Under pressure of the circumstances Fred LaRoche married Samantha Roofer in 1879. A little less than two months later, Carl was bom in lawful wedlock, and although Fred LaRoche never lived with his wife or family, yet having been bom in lawful wedlock a strong presumption obtains in favor of his legitimacy and it is so observed in Powell v. State, 84 Ohio St. 165 [95 N. E. 660; 36 L. R. A. (N. S.) 255], by Donahue, J., at page 168 as follows:

“ * * * a strong presumption always obtains that a child either born in lawful wedlock, or within the competent time after its termination is legitimate,”

and in Miller v. Anderson, 43 Ohio St. 474 [3 N. E. 605; 54 Am. Rep. 823], in the second paragraph of the syllabus it was held:

“2. By such marriage the man so marrying consents to stand in loco parentis to such child and is presumed in law to bo the father of the child, and this presumption is conclusive.” The foregoing is supported by Tiogo Co. v. South Creek Tp. 75 Pa. St. 453; State v. Romaine, 58 Iowa 46, 48 [11 N. W. 721]; State v. Herman, 35 N. C. (13 Ired.) 502; Parker v. Way, 15 N. H. 45; Page v. Dennison, 29 Pa. St. 420 [72 Am. Dec. 644]; Wigmore, Evidence, Sec. 134.

In addition to this presumption, a lady by the name of Mrs. Kate Naylor testified at the trial below that within about one hour of the birth of Carl, Fred LaRoehe was at the bedside of his wife. His presence there would seem to indicate a friendly interest at least in both mother and child. The record does not clearly disclose that he ever disowned the boy but on the contrary, provided in his last will and testament, a legacy of five dollars, though he tried to alien from the child all- of the remainder of his estate by said will and deed.

Section 8591 G. C. provides in part as follows:

“When, by a woman a man has one or more children, and afterwards intermarries with her, such issue, if acknowledged by him as his child or children, will be legitimate.”

The record, therefore fairly discloses that Fred LaRoehe recognized Carl as his son and by the required quantum of proof, that Carl S. LaRoehe is the son of Fred LaRoehe, deceased.

Coming now to construe said will it is fundamental that the controlling principle in its construction is to ascertain from the whole will the intention of the testator as therein expressed.

Linton v. Laycock, 33 Ohio St. 128; Barr v. Denny, 79 Ohio St. 358 [87 N. E. 267].

However, no specific rule or rules can be declared for the construction of wills because each must be construed largely in the light of its own provisions.

Governed by these principles, it is clear that the testator desired bis wife to have a life estate in bis estate during ber natural life or so long as sbe remained unmarried.

In tbe event that sbe remarried sbe should have tbe portion of bis estate provided by law, and tbe remainder be equally divided among bis four children including Fred, and in case any of them should be deceased at such time, without issue, such share should be equally divided among tbe surviving children. In tbe event that said widow should die, without remarriage, then the estate should be divided equally among bis “sons aforesaid” and in case any were deceased, at the time of tbe wife’s decease, and such deceased son left children, then such children should have the deeased parent’s share and if no children survived, then such share should be equally divided among the remaining children or their heirs. Clearly it was the desire of the testator that his “next of kin” should, in any event, be the beneficiaries of his estate, but can it be so held under the provisions of said will?

That depends, as above stated, whether said interest vested absolutely in Fred LaRoche at the death of testator or whether it vested subject to being divested by the death of Fred before his mother. The mother did not remarry and Fred preceded her in death by about ten years. He left his son Carl; therefore, it is clear that it was the intention of the testator as expressed in item five that the son Fred being deceased at the time of his mother’s death, that the son Carl should have his father’s share; that is to say that the grandson should have the son’s share, and which one would receive that share could only be determined by the situation at the time of the widow’s death.

The issue must be determined, therefore, by determining whether the estate vested absolutely in Fred LaRoche or whether it vested subject to being divested by his death before that of his mother. The distinction between a vested and contingent interest is clearly made in Richey v. Johnson, 30 Ohio St. 288, 294, and need not be here discussed. While it is true that under the common law, it was impossible to limit any estate after a fee, yet by the enactment of the “Statute of Wills” the doctrine of executory devises has been adopted, and it is now the law that there may be created by a will a vested estate in fee simple liable to be divested in favor of another estate. The controlling authority in this jurisdiction is Collins v. Collins, 40 Ohio St. 353. In this ease the testator devised his real and personal estate to his wife during her natural life with the remainder over to his two sons and their heirs. In the event of the death of either without issue, the estate should go to the survivor; it was held in the first paragraph of the syllabus as follows:

‘ ‘ 1. That by the will of their father each took a vested remainder in fee simple in one undivided half of the lands, de-feasible upon the contingency of the death of either, leaving no children at his decease, and leaving the other brother to survive him.”

The foregoing is supported in principle by Jeffers v. Lampson, 10 Ohio St. 101; 24 Am. & Eng. Ency. of L. 2nd ed. 431; 2 Cooley’s Blackstone, 172; Tiffany, Real Property, Sec. 134; Tiedman, Real Prop., Sec. 530.

It is urged that the law favors the vesting of estates in Ohio and so it is held in Linton v. Laycock, supra, as follows:

“3. The law favors the vesting of estates, and in the construction of devises of real estate, the estate will be held to be vested in the devise at the death of the testator, unless a condition precedent to such vesting is so clearly expressed that the estate can not be regarded as so vested, without directly opposing the terms of the will. To this end, words of seeming condition will, if they can bear that construction, be held to have the effect of postponing the right of possession only, and not the present right to the estate.”

The foregoing is supported by the weight of authority in this and numerous other jurisdictions, notable among which are the following eases :

McArthur v. Scott, 113 U. S. 380 [5 Sup. Ct. 652; 28 L. Ed. 1027]; Owen v. Eaton, 56 Mo. App. 569; Canfield v. Kallon, 26 Miss. 352 [57 N. Y. Supp. 149]; Wooley v. Paxen, 46 Ohio St. 307, 318 [24 N. E. 599]; Bolton v. Bank, 50 Ohio St. 290, 293 [33 N. E. 1115]; Johnson v. Johnson, 51 Ohio St. 446 [38 N. E. 61].

A case well in point is McCarthy v. Hansel, 38 O. A. & C. 608 (4 App. 425; 25 N. S. 283). The first paragraph of the syllabus reads as follows:

“1. The will of a testator contained a provision devising bis estate to bis widow for life and tbe following: ‘After tbe death of my wife, I give, devise and bequeath unto my children all of my estate, real or personal, of whatsoever kind and wheresoever situated, share and share alike; if any of my children should die previous to that time, leaving heirs of their body, then and in that ease such heirs to take the share or shares, which would have been due to their parent or parents, if living,1 Held: That the estate devised to each child was a vested remainder, subject to be divested by his death during the continuance of the life estate, and a deed made by such child during such time conveyed no interest in the property.”

The foregoing can scarcely be differentiated in any way or manner from the instant ease, and especially as to the facts which need not be discussed here.

In full accord with the above case and the ease at bar is that of Camp v. Cronkright, 13 N. Y. Supp. 307, the syllabus o£ which reads as follows :

“A testator devised to his wife certain property during ‘her natural life, and upon her death then I give and devise the same to my children, share and share alike, absolutely and forever, the child or children of any deceased child of mine to take the share which his, her or their parent would have taken if living.’ After testator’s death, but during the life time of his widow, C., one of his five children, conveyed an undivided fifth interest in the premises, and his grantee conveyed the same to defendant. Thereafter, and during the life time of testator’s widow, C. died leaving three children, surviving him. Held: That the will vested an undivided fifth interest in remainder in the premises in C., subject, however, to be divested by his death in the life time of his mother; that defendant’s title therein was subject to be divested by the same contingencies; and that upon the death of C. said fifth interest became vested in his surviving children.”

It is urged, however, that Anderson v. United Realty Co. 79 Ohio St. 24 [86 N. E. 644], is at variance with the foregoing. The second paragraph of the syllabus reads as follows:

“2. Where, in a will, there is a devise to a son, and if he dies without lineal descendants, living at the time of his decease, then over, these words are not, by themselves, without assistance from, other parts of the will, sufficient to create an estate by implication in the lineal descendants, but the son takes a fee de-feasible upon his death without lineal descendants, living at the tune of his decease, and in the event of lineal descendants living at the time of the son’s decease his fee becomes absolute and such descendants have no interest under the will as against his grantee. ’ ’

It will be observed that the principle issue under discussion in Anderson v. Realty Co. supra, is estates by “implication” which is not involved here. In the above case the son took a fee defeasible upou his death without lineal descendants, which indicates a similar view to that held in the above case of McCarty v. Hansel, supra, and so it is further disclosed by the discussion of the cause by Summers, J., at page 50. It follows therefore that said cause is not particularly helpful in determining the issue here, which however is practically determined by the cases above mentioned, and it must be held that the share or interest of Fred LaRoche vested in him at the death of testator John LaRoche, Sr., subject to being divested by the death of Fred before his mother, which so happened; therefore Carl S. La-Roche, plaintiff, being the son of said Fred LaRoche and who survived him, also the widow Charlotte LaRoche, the plaintiff takes his father’s share but directly under the will of John LaRoche, Sr. Therefore, the will and deed made by Fred La-Roche to defendant William F. LaRoche were ineffectual to convey title to his interest in the estate of John LaRoche, Sr.

An order of partition will be granted and the same commissioners named as appointed by the court below unless some change is desired.

The answer and cross petition filed by defendant William F. LaRoche in the court below asked the reformation of said deed because it recites the wrong lot numbers. In view of the finding herein, reformation will not be necessary so far as the property here involved is concerned; yet if it be considered advisable or desirable to direct such reformation in order to remove any possible inference or suspicion of cloud from the property of such person or persons as may hold title to the lots numbered in said deed, a proper decree may be entered for that purpose.

In the next case partition is sought by plaintiff of an estate by purchase owned by John LaRoche, Jr., at the time of his decease intestate and without issue in 1890. The plaintiff’s right to partition in this case is based upon his claims that Fred La-Roche was the brother of John LaRoche, Jr., and that he, plaintiff, is the son of said Fred LaRoche.

It is urged that since the legitimacy of the said Carl S. LaRoche is raised here, that proof of his right to inherit through his alleged father Fred LaRoche must be clear and convincing because it is claimed that the rule as to the presumption or legitimacy arising from the marriage of Fred LaRoche and Samantha Roofer prior to the birth of the boy, while applicable under the bastardy statute, is not applicable to actions where questions of heirship and inheritance are involved, and so it is held in Miller v. Anderson, 43 Ohio St. 474 [3 N. E. 605; 54 Am. Rep. 823], third paragraph of the syllabus; which case can be easily distinguished, however, from the case at bar since the facts are quite different. In the above case Emiline Miller was married to one Riddlemoser while enciente said marriage occurring about six months after pregnancy, and of which Riddlemoser was fully aware but married her with a full knowldege of her condition. The child was born in their home and was cared for by them jointly during some two and a half years until Riddle-moser’s death. A child was bom to them about sixteen years after the birth of the first child and some thirteen years after Riddlemoser’s death, the said Emiline Miller filed a complaint in bastardy against one James M. Anderson charging him with the paternity of the first child. The court held, and quite properly, that all the facts being known to Riddlemoser at the time of marriage that he had consented to stand in loco parentis to said child which, having been bom in lawful wedlock, was conclusively presumed to be legitimate but as above stated, this presumption was held to have no application to actions where questions of heirship and inheritance are involved and the reason is obvious; another child had been bom whose rights as an heir-at-law could not be aliened by the father’s election to stand in loco parentis to the unborn child of the woman whom he married and whose condition he well knew at the time. It is somewhat interesting to contemplate the paragraph of the syllabus under discussion here in view of the fact that but a single statement is made in relation thereto in the opinion by Atherton, J.., at page 480 as follows:

“As recognized in that ease, we do not affirm this rule holds good on questions of heirship. There the rights of others are involved outside of the husband and the alleged bastard child.”

In the foregoing discussion reference is made to the case of State v. Shoemaker, 62 Iowa 343 [17 N. W. 589; 49 Am. Rep. 146], which is quite similar to said case of Miller v. Anderson and in the latter case Judge Atherton observes at page 479 as follows :

“He chose to marry her and thus legitimate her issue and make it his own; the act would have made the child heir to his estate, and being made so by his act, can the inhuman mother, by her uncorrobated testimony, make it a bastard?”

And again as follows:

“Can they be bastardized by proving somebody else begat them, and especially can their mother bastardize them and take from them the rights they acquired by the marriage of their mother with the man that acknowledged them to be his own?”

It is true that the- syllabus is the law of the case but it is very difficult here to harmonize the dictum with the third paragraph of the' syllabus. However, it must be noted that said paragraph does not sustain the contention here, that where the claim of heirship is made in such case that the proof must be clear and convincing; far from it; it merely holds that a presumption of legitimacy arising from birth within lawful wedlock has no relation to actions where questions of heirship and inheritance are involved; that is, such presumption could not obtain in such cases conclusively against facts to the contrary. However, the modem tendency of courts is to relax this rule somewhat, as stated in Wilson v. Wilson, 39 O. A. & C. 393 (28 N. S. 309), a well considered case, the first paragraph of the syllabus of which reads as follows:

“1. A decree of divorce between parents of an unborn child-does not affect the legitimacy of the child, even though such legitimacy was effected by the parents marrying after this child was conceived. Such child therefore, is an heir at law of the father and as such has an interest to contest his will.”

Kunkle, J., in discussing the above case of Miller v. Anderson, observes at page 396 as follows:

“We think this discussion applies to heirship and the right of inheritance, although the issue in that case was limited to proceedings under the bastardy statutes. ’ ’

The most, therefore, that can be said for the above case of Miller v. Anderson, is that it holds in effect that in such cases, proof of heirship or the right to inherit must be proven as any other fact; that is, affirmatively or by a preponderance of the evidence, the burden being upon one asserting such claim, and so it is held in Hall v. Wilson, 14 Ala. 295; Payne v. Payne, 29 Vt. 172 [70 Am. Dee. 402]; 4 Ency. of E. 576. In the case at bar, Fred LaRoche charged with the paternity of the son Carl, married the mother Samantha Roofer, who declared in court upon the trial of this cause that Fred LaRoche was the father of Carl; about two months after the marriage, the child was born and within about one hour Fred LaRoche was at the bedside, so Mrs. Naylor states, and it is not denied; a strange and most unusual place for an innocent man, especially if compelled to marry the woman against his will and convinced of his own innocence. Careful examination of the record fails to disclose that he ever expressly denied the paternity of the child, while in some ways, at least, his conduct betokens the fact that he recognized his share of the responsibility for this boy. True, he tried to alien the greater part of his property by deed and by will to his brother William, all but a bequest of $5.00 to Carl, and thereby deprive this boy of any interest in his estate; however this is not conclusive of a refusal to acknowledge him as a son because it is by no means unusual for a parent for some real or fancied grievance to disinherit or deprive a natural child of acknowledged legitimacy, of any share or portion in such parent’s estate.

Therefoi’e, adopting here the discussion of these matters in the first case, so far as it may be of value, it follows that it must be held that Fred LaRoche was the brother of John LaRoche, Jr., and that the record shows affirmatively and by a fair preponderance of the evidence, as above stated, that Carl S. LaRoehe is the son of Fred LaRoehe, deceased and is therefore entitled to partition in this cause, and the same order will be made as to the appointment of commissioners as made in the court below. An accounting as to rents and .profits was made in the court below, and that issue is certified back for determination in said court. Partition ordered in both cases.

Pollock and Metcalfe, JJ., concur. 
      
       Motion to certify overruled by Supreme Court, LaRoche v. LaRoche, 63 Bull. 398
     