
    Eichorn v. Zedaker. Eichorn v. Oles.
    
      Descent and distribution — Illegitimate children deemed legitimate, when — Proof to establish parentage.
    
    By virtue of Section 8591, General Code, in order to establish legitimacy of a child born out of wedlock, it is necessary to prove not only the acknowledgment by the husband after marriage,- but also that the husband is in fact the father of such child. An acknowledgment, clearly and unequivocally made, showing the recognition of such child as his child, is sufficient to establish the parentage.
    (Nos. 16868 and 16869
    Decided January 24, 1922.
    Rehearing allowed and judgment modified April 17, 1924.)
    Error to the Court of Appeals of Mahoning county.
    These actions began in the court of common pleas of Mahoning county as suits in equity to quiet the title to certain real estate belonging to these defendants in error as against the alleged pretended claims of Killian Eichorn, and the issues were joined by short answers filed by Killian Eichorn, claiming to be a son and heir at law of John F. Eichorn, who held the undisputed title to said real estate at the time of his death. Voluminous testimony was taken, and the judgments of both courts were adverse to the claims of Killian Eichorn. In the Court of Appeals, upon request of counsel for Killian Eichorn, that court made its findings of fact separate from its conclusions of law, and these causes come to this court upon exceptions to the decisions of the Court of Appeals, it being claimed in the petition in error that the findings of fact do not support the conclusions of law stated in the Court of Appeals. While there were two separate actions in the lower courts, it was agreed that the same evidence must necessarily apply in both actions, and the causes were therefore tried together; it being agreed that the testimony taken, and all exceptions reserved, and the judgments, should be applicable to both causes.
    The findings of fact made in the Court of Appeals were as follows:
    “First. That on or about the year T850 or 1852 one J. P. Eichorn and one Barbara Barteline were inhabitants of Germany.
    “Second. That about that date the defendant, Killian Eichorn, was born in Germany of Barbara Barteline out of wedlock and that he remained in Germany with the parents of his mother during a greater part of the time there and for a short time with the mother and step-father of J. F. Eiehorn and that daring all of his life in Germany he was known as Killian Barteline.
    “Third. That aboat the year 1853, after the birth of the defendant in this ease, J. F. Eiehorn and Barbara Barteline came together from Germany to this eoantry and landed at Baltimore, where they were married.
    “Fonrth. That snbseqnent to sach marriage J. F. Eiehorn and Barbara Barteline eame to Ma-honing coanty and after several short stops in different localities, located in Boardman township in said coanty where they continaed to live antil their death.
    “Fifth. Of sach marriage two daaghters were bom who sabseqaently married and were known as Anna Barrows, who was bom a few days after the marriage of her parents, and Mary Geggis.
    “Sixth. Thát aboat the year 1860, J. F. Eichom sent to Germany and reqaested and obtained a pictare of Killian Eiehorn which he had framed and hang in the hoase where he and his family resided.
    “Seventh. Daring the minority of said defendant, J. F. Eiehorn several times attempted to get the defendant to come to this eoantry, bat that his grandparents refased to allow him to come, bat that aboat the year 1870, J. F. Eichom sent one handred ($100) to Germany for the parpóse of paying the passage of this defendant to this conntry, and sabseqaently sent him additional money apon his arrival in the City of New York and met him, in company with his two daaghters, at the station in the City of Yoangstown, Ohio.
    “Eighth. That apon his arrival in Yoangstown, J. F. Eichorn, said to this defendant that he wanted him to know that he was his son and he desired him thenceforth to bear the name of Eichorn.
    “Ninth. That J. F. Eichorn took this defendant to his home, where he lived until his marriage about the year 1876; that he worked on the farm of J. F. Eichorn, and drove his milk wagon along the route of said J. F. Eichorn and attended to other business for said J. F. Eichorn.
    “Tenth. That said J. F. Eichorn introduced this defendant to his customers on the milk route and to his personal friends as his son, Killian Eichorn, and introduced him to the family of one Kurz, as his son, Killian Eichorn, and that said Killian Eichorn, afterwards became engaged and married a daughter of said Kurz family.
    “Eleventh. That said J. F. Eichorn, said Kurz family and this defendant all attended the Martin Luther Church in the City of Youngstown, Ohio, and after the engagement aforesaid, publication of banns of marriage was had in said Martin Luther Church between Killian Eichorn and Amelia Kurz; that such publication was had in the presence of J. F. Eichorn and his family without any objection or remonstrance and that subsequently to said publication Killian Eichorn and Amelia Kurz were married in said Martin Luther Church and the record of said marriage between Killian Eichorn and Amelia Kurz was entered upon the records of said Martin Luther Church, with the Eichorn family present at such wedding, and that no objection was raised by any one to the name of Killian Eichorn being used therein.
    “Twelfth. At some time thereafter a child was bom to said defendant and said Amelia Kurz and was duly christened J. F. Eichorn in said Martin Luther Church and said J. F. Eichorn acted as godfather at such christening of said child; that during all of the time that said defendant was living with said J. F. Eichorn and working for him he did not receive wages but did receive from time to time money and clothing in small amounts.
    “Thirteenth. That some time after the birth of said child the defendant desired to start out for himself and purchased a small farm and said J. F. Eichorn aided in such purchase and that after that time relations between said J. F. Eichorn and Killian Eichorn were different than they had been heretofore and said J. F. Eichorn to divers people said that this defendant was not his son, but was his wife’s son before her marriage; that said J. F. Eichorn died in 1901 or 1902, intestate, and that Barbara Eichorn, his widow, made application for administration and said in her application that the heirs of J. F. Eichorn were Anna Burrows and Mary Greggis and did not mention the name of this defendant and there is no evidence that Mrs. Eichorn ever said or claimed that J. F. Eichorn was the father of Killian Eichorn.
    “Fourteenth. No settlement of said estate was made, there being subsequently no personal property-
    “Fifteenth. That at the funeral of J. F. Eichorn this defendant Killian Eichorn, was present and seated with the other members of the family.
    “Sixteenth. That subsequently Mary Greggis and Anna Burrows sold portions of said land by quitclaim deed to the plaintiff in this case and to a railroad company and that the defendant in this case made no claim at the time of such transfer to ownership in said property; however, he was aware of said sale and never did malm any claim until he was approached by attorneys of the purchaser for a quitclaim deed, but said at that time that as he had received nothing thus far he would let the matter rest as it was.
    “Seventeenth. That said J. F. Eichorn, in preparing data for a biography of himself for a history of Mahoning county, gave the names of his two daughters as his children, and did not mention the name of the defendant, Killian Eichorn.”
    
      Messrs. Burky & Burky and Mr. Ensign N. Brown, for plaintiff in error.
    
      Messrs. Kistler & Oesch, for defendants in error.
   Marshall, C. J.

The first problem for solution in this cause is presented by the cross-petition in error filed by the defendants in error, and by the bill of exceptions and transcript of all the testimony filed by the defendants in error in this cause, in which it is sought to show that the findings of fact in the Court of Appeals are not sustained by the weight of the evidence, and in which it is further sought to have this court disregard the findings of fact in the Court of Appeals and to consider and weigh the testimony as presented by the entire record. The authority for making findings of fact is found in Section 12252, General Code, as follows:

“On application of a party excepting to a ruling or decision of the Court of Appeals during the trial, or on motion for a new trial, such court shall find from the evidence and state on the record the facts upon which the alleged error arises, or which may be material in determining whether or not error has intervened.”

It is important therefore to determine at the outset whether this court is bound to look to the entire record to ascertain whether the Court of Appeals was justified in its findings of fact.

This court has so often and so uniformly declared in its decisions, during the course of hearings in open court, and in its published rules of practice, that it will not weigh the evidence, that parties will not be heard at this time to urge a different rule. Watson v. State, 39 Ohio St., 123; Finley v. Whitley, 46 Ohio St., 524, 22 N. E., 640; McLaughlin v. Wheeling & Lake Erie Ry. Co., 61 Ohio St., 279, 55 N. E., 825; and Krause v. Morgan, 52 Ohio St., 662, 44 N. E., 1140.

Notwithstanding our having reached the conclusion that this court is not bound to look to the record beyond the findings of fact, we have nevertheless carefully examined this voluminous record to ascertain whether there is any evidence upon which the findings made could properly be based. While there is much contradiction in the evidence, it is found that Killian Eichom himself was called by the plaintiffs below for purposes of cross-examination, and examined at length, and as a part of the case in chief was examined by his own counsel, and without objection on the part of opposing counsel was examined beyond the scope of the cross-examination of the opposing counsel, and that later as a part of his own defense he was again called to the stand and examined at length without objection on the part of opposing counsel. No question is therefore made in this record as to his competency as a witness, and none can therefore be made as to the admissibility thereof. If believed, his testimony makes a clear case of having been acknowledged by John F. Eichom as his son and the son of Barbara Eichorn, his wife. The testimony of Rudolph Kurz is equally clear, and his testimony is disinterested unless it should be considered otherwise because of the fact that Kurz was the brother of Killian Eichorn’s wife. The witness Emma Henry must be considered disinterested from every standpoint, and she also testified clearly to John F. Eichom having acknowledged Killian Eichom as his son. The same is true of the testimony of Lydia Eberspacher, John Siefert, and Mr. Palmer. This being in our opinion the principal question of fact in the case, and finding that the testimony of several witnesses supports the findings made by the Court of Appeals, we do not deem it our province or our duty to weigh the conflicting evidence to determine whether or not the findings are supported by the weight of the evidence. The legal propositions involved in this case will be disposed of upon the theory that the findings of the Court of Appeals are true.

An examination of the findings of fact will disclose not only a repeated acknowledgment by J. F. Eichom that Killian Eichom was his son, but many other facts and circumstances are disclosed strongly tending to corroborate the truth of the matter thus acknowledged. Killian Eichorn for a short tira© made his home in Germany with the mother and stepfather of J. F. Eichom, during which time he was known as Killian Barteline. Again, when Killian was about ten years old, J. F. Eichorn sent to Germany and procured a picture of Killian Eichorn, which he framed and hung in the home where he and his family resided. Again, J. F. Eichorn made repeated attempts to get Killian to come to this country, and sent money to defray his expenses. Upon Killian’s arrival at Youngstown, J. F. Eichom met him, in company with his two daughters. He took him into his own home, where he lived as one of the family, and gave him his own name. Upon Killian’s marriage, the banns were published in the name of Eichom in the presence of J. F. Eichorn. None of these things, nor all of them combined, would be sufficient without the acknowledgment, but all of them are strongly corroborative of the acknowledgment in establishing the paternity. The repeated acknowledgments supported and corroborated by the facts and circumstances above enumerated, must, if not disproved, establish not only the acknowledgment itself, but also the further fact that J. F. Eichorn was the father of Killian Eichorn.

While verbal admissions should be received in evidence with caution, yet the rule is well-settled that admissions deliberately made and clearly proven are very strong and satisfactory evidence against the party making them. The first 12 findings of fact must be held to establish both the acknowledgment and the paternity, and the status of Killian Eichorn must thereby be held to have become fixed as the legitimate son of J. F. Eichorn. The question therefore arises, upon consideration of the thirteenth and seventeenth findings, whether the subsequent denial of J. F. Eichorn that Killian Eichom was his son can have the effect of destroying the status theretofore established.

The admissions and acknowledgments were properly received in evidence because they were declarations against interest, but it does not follow that declarations denying the paternity, which must be held to be declarations in J. F. Eichom’s favor, would be admissible or entitled to any probative force whatever. This has been so held in the following cases: Britt v. Hall, 116 Iowa, 564, 90 N. W., 340; Brock v. State, 85 Ind., 397; and Binns v. Dazey, 147 Ind., 536, 44 N. E., 644.

It is urged by counsel for defendants in error that, even if it be admitted that there is evidence of J. F. Eichom having acknowledged the paternity, there is no proof of the fact of the paternity itself. Counsel have not, however, pointed out to the court what degree or what character of proof should be required to establish the paternity. In the very nature of things such a proposition is not capable of demonstration. If the court should lay down a rule requiring resort to such technical niceties, it would be impossible to prove paternity in any case. Absolute proof could only be made by showing access of the alleged father and also proof of the impossibility of access of any other man. History only records one such illustration, viz. Cain and Abel. If a man and woman should be placed under guard for a natural period of gestation, there would still be a possibility of some suspicion attaching to the guard. Or if a man and woman were placed upon some lonely island, we conld not disprove the presence of some lurking savage. It is against sound public policy to resort to such technicalities, and no valid reason is urged why an admission of this fact, if not otherwise disproved, should not be accepted as it would be in proof of any other fact.

Many of the states of the Union have enacted statutes designed to legitimatize children born out of wedlock, and in many states the courts have rendered decisions construing the same and defining and limiting the proof necessary to be made, but these statutes differ materially, and the decisions are not helpful. An examination of the many cases cited and some not cited discloses that, while in many states it is necessary to establish paternity, yet in no case where the governing statute is similar to the Ohio statute is it stated that clear and unequivocal acknowledgment is not evidence of paternity, or that such acknowledgment is not sufficient proof in the absence of rebutting testimony.

In the complete record of this case, introduced by defendants in error, the testimony of the daughter is found, which, if competent, would tend to show nonaceess. But this testimony was hearsay and was unnoticed by the Court of Appeals in its findings of fact. "We have no means of knowing whether the Court of Appeals disregarded this testimony on the ground of it being hearsay, or whether it was a refusal to give any credence to the testimony of Mrs. Burrows, who thus sought to prove that her mother was a common character. This record clearly showing the finding that J. F. Eichorn repeatedly acknowledged Killian as his son, and the record showing’ no competent evidence of nonaccess, we are not called upon to determine whether a clear unequivocal acknowledgment would establish the status of legitimacy in the face of clear evidence of nonaccess.

While we agree that the language of Section 8591, General Code, makes it necessary to establish the paternity, we are of the opinion that the first 13 findings of the Court of Appeals are sufficient to establish not only the acknowledgment, but also the fact of the paternity, and we therefore hold that the conclusions of law are not in harmony with the findings of fact and that the judgment of the Court of Appeals should therefore be reversed. This court will therefore render the judgment which the Court of Appeals should have rendered upon the findings of fact made in that court, adjudging Killian Eichorn to be the owner, as heir at law of John F. Eichorn, deceased, of the undivided one-third interest in the real estate in the petition described.

Judgment reversed.

Johnson, Hough, Robinson, Jones, and Matthias, JJ., concur.

Wanamaker, J., concurs in the judgment.  