
    No. 458
    SCHLENKER v. FERDON
    No. 19784.
    Supreme Court
    On motion to certify.
    Dock. Apr. 21, 1926.
    413. DIVORCE AND ALIMONY — Where a husband files a petition alleging adulterous conduct on the part of his wife, and that a son born to his wife was not the fruit of his marital union, and the wife sets up no defense, and a decree is entered in accordance with the prayer of the petition, may the child later prove his legitimacy in order to share in the estate of his alleged father?
    Attorneys — W. A. Ryan, W. C. Lambert for Sehlenker; S. M. Johnson for Ferdon; all of Cincinnati.
   It appears an action was brought by Stanley George Ferdon through his next friend Martha Ferdon in the Hamilton County Common Pleas in an effort to set aside a finding that plaintiff was illegitimate.

It appears that George W. Ferdon, deceased, filed suit against his wife Martha Ferdon, alleging that she was pregnant at the time he married her and that she had lived in a state of adultery with other men since they were married. It was furher alleged that a son born to Martha Ferdon was not his issue and a fruit of his union with Martha Ferdon. The suit was not contested and a decree was entered in accordance with the prayer of the petition.

The Common Pleas Court refused to modify the decree and no proceedings in error were prosecuted.

Albert Daiker, Administrator of the estate of George W. Ferdon deceased filed this action originally in the Hamilton County Common Pleas under Section 10857 GC., asking the direction of the Court as to whom to distribute, as Nellie Sehlenker sister of the deceased and Stanley George Ferdon, both claimed to be next of kin. Sehlenker and Ferdon each filed an answer and cross-petition to the action, each claiming to be sole heir and next of kin of the deceased.

The decree of the Common Pleas Court finding that Stanley George Ferdon was the son of the deceased was affirmed by the Appeals. Sehlenker in the Supreme Court contends:

1. That the question of the legitimacy of Stanley George Ferdon was res judicata.

2. That the court exceeded its jurisdiction in considering the legitimacy of Stanley George Ferdon.  