
    Clark’s Administratrix, et al. v. Callahan.
    (Decided November 19, 1926.)
    Appeal from Jackson Circuit Court.
    1. Trial. — Credibility o'f witnesses’ testimony is for jury.
    2. Wills — Verdict for Plaintiff, in Suit on Natural Father’s Promise to Provide for Him from- Estate, Held Warranted by Evidence.— Verdict for plaintiff, in suit on bis natural father’s promise to provide for him out of father’s estate, in consideration of mother’s agreement not to prosecute bastardy proceedings, held warranted by testimony of plaintiff’s mother and grandmother as to relations between plaintiff’s parents.
    3. Wills. — Parol promise to make one an heir is not binding.
    4. Contracts. — Contracts made in -consideration of present or future illicit intercourse are not enforceable.
    5. Wills. — Father’s contract to provide for his illegitimate child out of estate, in consideration of mother’s agreement not to prosecute bastardy proceedings, is valid and enforceable.
    6. Judgment — Judgment of Dismissal Without Prejudice Cannot be Collaterally Attacked in Subsequent Suit on Same Cause of Action; Appeal 'Being Proper (Remedy. — Judgment of court, having jurisdiction of parties and subject matter, dismissing suit without prejudice on plaintiff’s -motion, after stating that findings were adverse to plaintiff, cannot be collaterally attacked in subsequent suit on same cause of action; appeal being proper remedy.
    7. Evidence. — ^Witness may testify as to what testator told draftsman to put in will, but not as to what paper itself -contained.
    8. Appeal and Error. — Alleged error in judgment, not pointed out to trial court, need not be considered on appeal.
    9. Executors and Administrators — Wills—Judgment Against Administratrix and Legatees and Distributees Under Will for Breach oí Testator’s Promise to Provide for Illegitimate Son Held Warranted '(Civil Code of Practice, Section 434; Kentucky Statutes, Sections 2084, 2085). — Civil Code of Practice, section 434 (Kentucky Statutes, sections 2084; 2085), held to warrant judgment for illigitimate child against father’s administratrix and legatees and distributees under his will, for breach of father’s contract to provide for plaintiff out of estate.
    10. Judgment — Entire Judgment Held Properly Adjudged Collectible from Any of 'Several Defendants Receiving More than Amount Thereof from Estate Liable. — In illigitimate child’s suit against fathers administratrix and legatees and distributees under his will for breach of father’s contract to provide for plaintiff out of estate, court properly adjudged that whole amount of judgment recovered could be collected from any of several defendants found to have received more than such amount from estate.;
    LEWIS, BEGLEY & LEWIS and W. E. BEGLEY for appellants.
    A. W. BAKER and L. C. LITTLE for appellee.
   Opinion op the Court by

Drury, Commissioner—

Affirming.

The appellee, whom we shall refer to as the plaintiff, recovered a judgment for $5,000.00 against Demie Clark as administratrix of the estate of "William H. Clark, and against her and other legatees of Clark, personally, which judgment she has superseded, and from it she prosecutes this appeal. This was an action at law and,. among other things, in the petition it is stated that William H. Clark died on November 6, 1921, leaving a will in which he devised property to different parties, all of which is set out in great detail. All the beneficiaries under this will were made defendants. It is admitted by the defendants’ that Clark’s legitimate daughter, Maude Fowler, was willed $5,000.00 in money and a tract of land worth $2,000.00. This land she was to have during her life, and at her death it was to go to her children. It is also admitted that Rebecca McKinney was a concubine of Clark’s and that there was devised to her $500.00 in money and a tract of land which is admitted to be worth , $10,000.00. This land she was to have during her life, and at her death it was to go to her three children. The defendants admit that Demie Clark received, under this will, $67,000.00 in money and 18 tracts of land worth $10,400.00. The petition alleges that Maude Fowler is forty-one years of age, and in ordinary health, and Rebeeca McKinney is forty-nine years of age and in ordinary health.

Plaintiff, in his petition, alleges that he is the natural son of W. H. Clark; that he was born on Nov. 17, 1897; that his mother, Martha Callahan, was then an unmarried woman; that after his birth and while he was' yet less than three years of age, his mother instituted bastardy proceedings against W. IT. Clark, and that within a few ' days thereafter, W. IT. Clark entered into a verbal contract with Martha Callahan, whereby Clark agreed with her that if she would not prosecute him on this charge, he would contribute liberally to the support and maintenance of this plaintiff during his infancy and that he would, before his death, make suitable provision for the plaintiff out of his estate, and would, prior to his death, provide that this plaintiff should and would have and receive an amount equal to a full heir’s part of his estate, as though this plaintiff were his lawful heir, and should receive as much as his daughter, Maud, now Maud Fowler.

This case has been well briefed, and we shall adopt the classification made by the attorneys for the appellant and shall discuss the questions raised in the same order that they are discussed there. The first contention made by the defendants is that the story told by the appellee’s mother and grandmother is not believable. One answer to that is that the jury' did believe it; but as they have discussed this with such earnestness, we will consider that statement briefly. The statement of Martha Callahan, when abbreviated and expurgated, is.that she is the fourth of five illegitimate children born to her mother; that in the latter part of 1896 or early part of 1897, her mother was living on.' Mr. Clark’s farm about two and one-half miles from his home in McKee; that Clark asked her mother to allow Martha Callahan to come and live with him and to help with the house work. Martha Calla- . han says that she was then fourteen years of age; that she.was illiterate, but a virgin; that Clark immediately began to make improper proposals to her and prosecuted them with such vigor that three days after her arrival at his home, he had sexual intercourse with her;, that She lived at Clark’s home and these illicit relations'-ber tween her-and Clark continued until the summer of 1897, when her mother learned of the pregnancy of Martha ■Callahan, came and got her and took her home in order to take care of her; that before and after the birth of the plaintiff, Clark continued to visit her; that he fitted up a room in the house occupied by her mother, and that Clark continued to visit her, Martha Callahan; that they occupied this room, and their illicit relations continued; that when this plaintiff was about fourteen months of age, she instituted bastardy proceedings against Clark, whereupon Clark came to the home of the plaintiff’s .grandmother, and upon learning that Martha Callahan was at work at the home of Mr. Hoskins, sent for her; khat she came over, and that this conversation occurred:

“He asked me what made me'law him. I told him I swore the baby to him because he was the father of it, and he had told me that he would make the baby 'an heir with his child at home, and I swore the baby to him because I knew that I never knew anything about any other man, I wanted the baby some day to know who its father was, so it could heir its part of its father’s estate, if I should have died and left it while it was little. He told me that if-1 would drop the suit, the bastard suit, and not go on with it, that he would make my baby an heir with his girl at home. So I dropped it and didn’t do any . more about it. He stayed two days and nights with me, and the baby when he come to. make up the suit with me. He took me and the baby to old Mason Halcomb’s and bought us shoes, flannel clothes for the baby. When he went to leave us he give the baby a ten dollar bill in his hand. ’■’

She says that on account of that, and relying on that, she dropped the bastardy proceedings. She says Clark provided her with money and clothes for the plaintiff, .and she had everything she wanted to eat or wear. She says that Clark always called her “Scrub,” and that while she lived at Clark’s home she slept with Clark in his own room, and that this and their illicit practices were known to Mrs. Clark. This is the story that the appellants contend is unbelievable. The proof shows that Mrs. Clark was a lady of culture and refinement, and it is .argued that she would not have tolerated the bestial lust of her husband in the home. However,- Mrs. Clark admitted that James Campbell, who- was reputed to be the natural son of Clark (see Clark’s Admrx. v. Campbell, 212 Ky. 341, 279 S. W. ©27), had lived in the Clark home. She admitted plaintiff had eaten at her home, and that plaintiff’s mother and grandmother lived on one of Clark’s farms.

Plaintiff’s grandmother tells substantially the same-story as the plaintiff’s mother, except, of course, the nauseating details of what occurred at the Clark home, but she substantiates the plaintiff’s mother in.the equally nauseating details of the illicit relations -between. Clark and the plaintiff’s mother at the home -of this grandmother. The statement of this mother and grandmother is contradicted by the statement of Mrs. Clark and her daughter. It is argued that this mother and grandmother trumped up this tale to mulct the estate of Clark, but it could be just as well argued that the vigorous, denials made by Mrs. Clark and her daughter, Mrs. Fowler, were prompted by a desire to defeat the plaintiff’s claim, and to preserve this estate for themselves. With two women of plebian blood testifying one way and. two of patrician caste- testifying another, we turn to the testimony of neighbors and acquaintances of Clark, and it supports the statements made by the mother and grandmother, that the mother, Martha Callahan, -did live at Clark’s, and did give birth to the plaintiff. Several witnesses testified to acknowledgments made by Clark that plaintiff was his son.

The defendants sought to show by evidence, that: Martha Callahan and her mother were common prostitutes, but, on the other hand,- there was evidence for the-plaintiff that while the reputation of plaintiff’s grandmother was bad, that the reputation of plaintiff’s mother was untarnished, except by her relations with Clark. It. was shown that Clark said of her that “she was a nice-girl and a damn good looker,” that ‘/she was a virgin and he had treated her mighty bad,” and the witnesses-said he related to them the circumstances under which he accomplished her ruin, and it was too indecent to relate. So, on the whole, the story of this mother and grandmother, instead of being unbelievable, has, when it is coupled with, and supported by, the testimony of these-neighbors, rather a convincing ring. The only way we can account for the tolerance of Mr. Clark’s lust by his-wife is that she had ceased to be his wife, except in name only, and bore this situation in the hope that she- might persuade him to reform, and might preserve his estate for herself and her daughter.

The next contention of the defendants is that a parol promise to make one an heir is not binding, and that contracts made in consideration of present or future illicit intercourse are not enforceable. The defendants are correct in this position; but this is a suit upon a promise by a father to provide for his illegitimate child -out of his estate, in consideration of the mother’s agreement- not to prosecute bastardy proceedings begun against him. The father failed to make such provision, and by this action the plaintiff sought damages for -snch "breach of this contract, and such a contract is valid and enforceable. See Clark’s Admrs. v. Campbell, supra.

The next alleged error is the action of the trial court in sustaining a demurrer to the second paragraph of defendants’ answer. By that paragraph the defendants had pleaded in great detail, that on July 17, 1922, this plain'tiff began an action at law against these same defendants for the same thing sought here, which was -transferred to equity, and prepared for trial, and that after a motion had been made to submit the case, the plaintiff entered a motion to dismiss his action without prejudice, which was done over the objection of the defendants ; that after that was done, in the year 1923, this plaintiff began an action in equity against these same defendants, seeking this identical relief and upon this identical cause of action, and that after the proof had been taken, that by -agreement of parties, the action was .submitted, for final judgment upon the- merits, the case was argued before the judge of the court by counsel for both parties, and that after the judge had indicated to-■counsel for plaintiff that for certain reasons, his finding would be adverse to the plaintiff, the plaintiff entered a motion to dismiss that action without prejudice, to which motion these defendants objected, but the court overruled their objections, permitted that action to be dismissed without prejudice, and entered an order to that effect. The defendants by this paragraph of answer insist that it was too late for the plaintiff to dismiss his cause of action without prejudice after it had been submitted to the judge for decision, and at a time when the judge had so far carried his consideration of it that he- had stated his findings would be adverse to the plaintiff, and the defendants sought by this paragraph of answer to plead' such.forraer actions and hearings in bar of the plaintiff’s-action in this case. It is not necessary for us to decide that question for that court then had jurisdiction of these parties, and of the subject matter, and the disposition-of this case then made is a judgment of that court which, can not be attacked collaterally. The defendants, if dissatisfied with the action of the court in dismissing that case without prejudice, should have pursued the course adopted in the cases of I. C. R. R. Co. v. Siebold, 160 Ky. 139, 169 S. W. 610; Ohio Valley Electric Co. v. Lowe, 167 Ky. 132, 180 S. W. 61. The defendants should have appealed from that judgment. Then we would, have had. that question directly before us, and would have been in a position to say whether or not it was erroneous. As-it is, it might be conceded for the sake of argument that it was too late to dismiss this case after it had gone as far as it had, and still, no court can consider a collateral attack upon the judgment of the court in so dismissing it.

That brings us to his next contention, which is that, the instructions are erroneous. We have carefuEy examined these instructions, and the criticism of them made-by the defendants. We have reached the conclusion that they correctly submitted to the jury'the'issues made by the -pleadings.

The next alleged error complained of by the defendants is that J. W. Markham was.aEowed to testify about the provisions made for the plaintiff in. a will which it was claimed W. H. Clark had prepared, in Louisville at a time when he had been taken suddenly ill in that city. Defendants insist that as this will was a written instrument and there was no showing that it had been destroyed or lost, this writing itself was the best, evidence-of what it contained. The defendants are correct, in that, hut that part of Markham’s evidence was. excluded from the jury. No part of Markham’s evidence about what was in the will was read to the jury. .All of Markman’s testimony that was admitted was his,testimony relative to Clark’s statement to the draftsman of' what he wanted, put in the will. Markham’s testimony about, what Clark said he wanted put in the will was com-, petent, but Markham should not have 'been allowed and was not allowed to testify about what the paper itself' finally contained. ,, -

The next contention is that the verdict of the jury is against the weight of the evidence, and what we have .said above about the testimony of the plaintiff’s mother and grandmother is a complete answer to this.

Defendants alleged that this judgment entered upon the verdict of the jury is erroneous:

“It is therefore adjudged by the court that the plaintiff Bradley Clark Callahan recover from the defendants herein to-wit: Demie Clark as administratrix of the estate of W. II. Clark deceased and from defendant Demie Clark individually, Maud Fowler, Rebecca McKinney, Robert Clark McKinney, and Bradley Clark McKinney the sum of five thousand dollars with six per cent interest from the date of the entering of this judgment until paid, .and their costs herein expended with these provisions and directions, the whole of this judgment may be collected from the defendant Demie Clark, either as administratrix of W. H. Clark deceased, or individually and the whole of same may be collected from defendant Maud Fowler and the whole of this judgment may be collected from the defendant Rebecca McKinney, and one thousand and eight hundred and twenty-five dollars of this judgment may be collected from the defendant Robert Claris: McKinney, and no more, and one thousand eight hundred and twenty-five dollars of this judgment may be collected from defendant Bradley Clark McKinney and no more, and if this judgment or any part of same is collected by execution, the clerk of this court, will before delivering such execution to the sheriff, make a notation of said execution stating that not more than said amounts can be collected from defendants Robert Clark McKinney, and Bradley Clark McKinney, and if this judgment is not paid execution may issue thereon to all of the foregoing’ judgment the defendants, and each of them, object and except.”

One answer to this contention is that the defendants did not then offer to point out to the trial court any errors in this judgment. The plaintiff began this action under section 434 of the Civil Code, against Mrs. Clark as administratrix, against her individually as a legatee, and against the other defendants as legatees and distributees, under the will of W. H. Clark. This action and this judgment were fully warranted not only by this section of the-Code, but by these sections of the statutes:

“2084. A devisee shall be liable for all debts, and liabilities of the testator in the same manner as the heir of the testator would have been hable if the-property devised had descended to the heir.”
“2085. The same actions which lie against the-personal representative may be brought jointly against him and the heir or devisee of the decedent, or both, and shall not be delayed for the non-age of any of the parties.”

We have called attention in the early part of this, opinion to the admitted age of Rebecca McKinney, and to the admitted value of the property devised to her, and there was before the court abundant data from which to. estimate the value of the property received by Rebecca ■McKinney, and each of her children from this estate. The court properly concluded that all of these defendants,, except the McKinney children, had received more than $5,000.00 each from this estate, and therefore properly adjudged that the whole of this judgment could be collected from any one of them. As to the McKinney children, the court estimated the value of what was devised to each of them, and fixed it at $1,825.00, and properly limited the amount of this judgment that could be collected from each of these McKinney children at that sum.

The judgment is affirmed.  