Opinion
November 28, 1962 —
January 8, 1963.
APPEAL from part of a judgment of the county court of Sauk county: ROBERT H. GOLLMAR, Judge. Reversed.
For the appellants there was a brief and oral argument by James W. Karch of Baraboo.
For the respondents there was a brief by William M. Hayes of Baraboo, and John T. Harrington of Madison, and oral argument by Mr. Harrington.
James Traver died intestate on May 15, 1950. A petition for administration and determination of heirship was made to the county court of Sauk county by one of the decedent's two sisters. The court entered an order that Charles Frederick Sommers was the illegitimate son of the deceased and entitled to inherit. This order was made pursuant to sec. 237.06, Stats., which provides as follows:
"HEIRSHIP OF CHILDREN BORN OUT OF WEDLOCK. Every child born out of wedlock shall be considered as heir of the person who shall, in writing signed in the presence of a competent witness, have acknowledged himself to be the father of such child or who shall be adjudged to be such father under the provisions of secs. 52.21 to 52.45, or who shall admit in open court that he is such father, and shall in all cases be considered as heir of his mother, and shall inherit his or her estate, in whole or in part, as the case may be, in the same manner as if he had been born in lawful wedlock; but he shall not be allowed to claim, as representing his father or mother any part of the estate of his or her kindred, either lineal or collateral, unless before his death he shall have been legitimated by the marriage of his parents in the manner prescribed by law."
A judgment determining that Charles Frederick Sommers was the only heir at law of the deceased was entered on April 30, 1962.
The facts of this case are not in dispute. Viola Sommers gave birth to Charles Frederick Sommers on November 9, 1931. On July 12, 1932, the deceased, James Traver, entered into an agreement with Viola Sommers for the support of the child. In the agreement, the deceased agreed to pay $13.50 a month for the support of Charles Sommers, but he expressly denied the paternity of said child.
On June 14, 1933, Viola Sommers filed a complaint with a justice of the peace that the deceased had failed to support "his illegitimate minor child." A warrant was issued, and Traver was brought before the magistrate. The latter's records show that Traver pleaded guilty to the complaint and was bound over for trial before the county court. The case was never tried because the county court granted the district attorney's motion to dismiss the case on the grounds that the paternity of the illegitimate child had not yet been determined.
In the current proceedings, the trial judge held that Traver's plea of guilty in 1933 before the justice of the peace was sufficient compliance with sec. 237.06, Stats., to constitute an admission in open court and that therefore Charles Frederick Sommers was an heir at law of the deceased.
From the order and that part of the judgment declaring Charles Frederick Sommers the illegitimate son and heir at law of the deceased, the two sisters of the decedent and the administrator of the estate appeal.
The problem before the court is whether Charles Sommers, who claims to be the illegitimate progeny of the deceased, James Traver, may qualify as the latter's heir under the provisions of sec. 237.06, Stats.
At common law an illegitimate child had no right of inheritance from his father. Ballentine v. De Sylva (9th Cir. 1955), 226 F.2d 623, 632, affirmed, 351 U.S. 570, 76 Sup. Ct. 974, 100 L.Ed. 1415. An illegitimate child was thought to be "the son of nobody. Being the son of nobody, he has no ancestor." Estate of Shriver (1946), 159 Pa. Super. 314, 317, 48 A.2d 52.
Many states found this rule too severe. As was said in Reilly v. Shapiro (1936), 196 Minn. 376, 379, 265 N.W. 284:
"Nor can it be denied that a child born out of wedlock is as much in need of parental aid and the natural rights that go with the relationship of parent and child as those pertaining to a child born in wedlock. Every human instinct is moved toward extending a helping hand to such child, already laboring under a handicap impossible of removal. That is why the old and harsh rules of the common law have been modified and in many instances removed by statutory enactments."
For a list of the states that have altered the common-law rule by statute see 83 A.L.R. 1330, 1335.
As early as 1849 Wisconsin changed the common-law rule by providing that an illegitimate child could inherit from his intestate father if the father had acknowledged the paternity of the child by a writing signed by him in the presence of a competent witness (ch. 63, sec. 2, R.S. 1849). In 1915 there was added another way in which an illegitimate could inherit from his father: If the father made an admission of paternity in open court (ch. 258, Laws of 1915). In all respects material to this case the statute has remained unchanged up to the present time.
As presently framed, the statute sets out three circumstances under which an illegitimate may qualify so as to inherit from his father: (1) If there has been a writing acknowledging paternity signed in the presence of a competent witness, (2) if there is a paternity judgment under secs. 52.21 to 52.45, Stats., and (3) if there has been an admission of paternity in open court. The appellants and the respondents concede that the third-mentioned provision is the only one before the court in the case at bar.
An illegitimate cannot qualify under the statutory provision regarding an admission in open court unless such admission is reasonably clear and certain. In Richmond v. Taylor (1913), 151 Wis. 633, 139 N.W. 435, this court was concerned with that portion of sec. 237.06, Stats., which related to a written acknowledgment of paternity. The court there said, at page 643:
"It is sufficient if it appear with reasonable clearness and certainty from the written words that the paternity of the child is acknowledged."
Mr. Traver pleaded guilty to a charge which asserted that he had refused "to provide for the support and maintenance of his illegitimate minor child." In our opinion, the plea of guilty is equivocal. It could mean that Mr. Traver was admitting the charge of nonsupport, or it could mean that he was admitting that he was the father of this illegitimate child. Since the plea is ambiguous and made without the benefit of counsel, it cannot stand as a reasonably clear and certain acknowledgment of his paternity of Charles Sommers.
It is also noted that there is no necessity for a plea before a magistrate whose purpose is to determine whether an offense has been committed and whether there is probable cause to believe that the accused person should be placed on trial therefor. State ex rel. Durner v. Huegin (1901), 110 Wis. 189, 239, 85 N.W. 1046.
The lack of clarity which surrounded the charge and the plea is further supported by the fact that three days after the appearance in justice court the district attorney moved to dismiss the case because the paternity of the child in question had not yet been determined. The district attorney's motion was granted and the defendant discharged.
Neither the fact that Traver had previously denied paternity nor the fact that he had told personal friends that this was not his child would be controlling if there had been proper compliance with one of the statutory standards. Thus, it is possible that an illegitimate child could inherit from a father who in one courtroom had denied paternity but in another had admitted paternity. State ex rel. Ullrich v. Giese (1950), 257 Wis. 242, 245, 43 N.W.2d 18, is not to be interpreted as automatically barring heirship because the alleged father has denied paternity. If at some other time the father makes a clear and unequivocal admission of paternity in open court, this may support a finding in favor of the illegitimate's being an heir.
In view of the fact that there has not been a clear and unequivocal compliance with sec. 237.06, Stats., Charles Sommers may not inherit from James Traver. The finding by the learned trial court that the guilty plea under these circumstances was a sufficient admission is against the great weight and clear preponderance of the evidence. In view of this conclusion, we find it unnecessary to resolve the question whether a plea before the justice of the peace sitting as a magistrate constitutes an admission "in open court." See State v. Friedl (1951), 259 Wis. 110, 47 N.W.2d 306.
By the Court. — Judgment reversed.