Opinion
December 12, 1950.
Appeal from the Circuit Court, Okeechobee County, M.B. Smith, J.
Liddon Parker and Frank Fee, all of Fort Pierce, and Redfearn Ferrell, Miami, for appellants.
McCarty Brown, Fort Pierce, Andrew F. O'Connell, West Palm Beach, D.C. Smith, Vero Beach, and Mabry, Reaves, Carlton, Anderson, Fields Ward, Tampa, for appellee.
L.E. Mankin, a resident and citizen of Okeechobee, Florida, died intestate November 13, 1948. His sister, Mrs. Leta M. Wall, representing the heirs of the deceased, applied for and was on November 18, 1948 appointed administratrix of his estate. Thereafter on December 16, 1948, Ethel Martin Altobello filed her petition in the probate court alleging that she is the illegitimate daughter of L.E. Mankin, that she was born August 2, 1922 at McKendree, West Virginia, that her mother was Pearl Martin, and that during his life time L.E. Mankin acknowledged in writing, in the presence of a competent witness, that he was her father. The petition prayed that she be adjudicated to be the illegitimate daughter of L.E. Mankin and the sole heir to his estate. Appellants answered the petition, denying the material allegations thereof. On the issues thus made the probate court found that appellee failed to prove that L.E. Mankin acknowledged that he was her father and denied the petition. On appeal to the Circuit Court the judgment of the probate court was reversed. We are confronted with an appeal from the order of the Circuit Court reversing the order of the probate court.
The point for determination is whether or not the proof presented was sufficient to show that L.E. Mankin acknowledged appellee to be his daughter in the manner required by Section 731.29, F.S.A., the pertinent part of which is as follows: "Every illegitimate child is an heir of his mother, and also the person who, in writing, signed in the presence of a competent witness, acknowledges himself to be the father".
The first item of evidence relied on by petitioner to establish such acknowledgment was a registration card from the Seville Hotel at Daytona Beach, Florida, with the entry — "L.E. Mankin and daughter, Lewisburg, West Virginia." The clerk at the hotel, Mr. Richards, testified that Mr. Mankin came to the Seville Hotel after midnight, signed the registration card in his presence and in the presence of appellee, that L.E. Mankin and the lady referred to as "daughter" occupied Room 210 in the hotel on the night of February 21, 1946, that Mr. Mankin filled out the registration card himself with the words "L.E. Mankin and daughter, Lewisburg, West Virginia." Mr. Richards also testified that the appellee is the lady who was present with Mr. Mankin and occupied the room in the hotel with him that night.
The appellee admitted that she occupied the room with Mr. Mankin but testified that she had traveled with him and her mother a great deal and that they always occupied the same room, using a double and a single bed. She stated that there was a double and a single bed in Room 210 in the Seville Hotel when she and L.E. Mankin occupied it and that she slept on the double bed and he slept on the single bed.
The second item of evidence relied on to support her claim was some income tax returns, exhibits 13-A to 13-F. With these tax returns were some letters all of which are attached to the record. Some of the tax returns and letters are of little or no probative value but some of them show that L.E. Mankin did get a credit of $400.00 for one dependent, named Hutchie Martin. Other evidence shows that Hutchie Martin was a nickname by which appellee was generally known. The Internal Revenue Department approved and granted Mr. Mankin's claim for personal exemption for one dependent child under 18 years of age which was appellee's age at the time of the exemption.
Other evidence shows that L.E. Mankin and the mother of appellee cohabited in a meretricious manner from 1921 to 1946, without the benefit of a marriage ceremony, that they had another child younger than appellee who lived but a short time, that L.E. Mankin paid the hospital and doctor's bill for the mother when both children were born, that he consistently furnished the mother and appellee spending money, provided them a home and support. There is ample evidence that L.E. Mankin paid for appellee's education and frequently gave her money for other purposes, that he introduced her many times as his daughter and that his sister, Mrs. Wall, one of the appellants, recognized her as the illegitimate daughter of the deceased.
In Horne's Estate, 149 Fla. 710, 7 So.2d 13, is the leading case in this state construing Section 731.29, F.S.A. We there held that the acknowledgment did not have to be formal and that the witness was not required to subscribe to the acknowledgment. The chancellor found the proof to be conclusive that L.E. Mankin signed the hotel register as indicated, that appellee whom he called his daughter, was present, that E.M. Richards, the hotel clerk, was present. The chancellor and the probate judge both found that the evidence was ample to show that appellee was the illegitimate daughter of L.E. Mankin. We think the record amply supports this finding. Blythe v. Ayers, 96 Cal. 532, 31 P. 915, 19 L.R.A. 40.
The only point of disagreement between the finding of the probate court and the Circuit Court was as to the sufficiency of L.E. Mankin's acknowledgment in writing that he was the father of appellee. We think the entry on the registration card shows that appellee was L.E. Mankin's daughter. If there was no corroborating evidence there might be room for doubt, but that was so conclusive that we think the proof made was ample compliance with the statute.
One acknowledging himself to be the father of a child does not ordinarily announce said child to be illegitimate, neither does he voluntarily take up and pay the maternity bills, living and other expenses of another's illegitimate children, but when paternity is conclusively shown, illegitimacy may be established by other evidence. When L.E. Mankin acknowledged himself in the presence of a witness to be the father of one present with him and it was conclusively shown that the person with him was his illegitimate daughter, the petitioner in this case, we think the proof of paternity was complied with.
It is therefore our conclusion that L.E. Mankin in writing and in the presence of a competent witness acknowledged himself to be the father of appellee, that she was shown to be his illegitimate daughter and may under Section 731.29, F.S.A., inherit from him.
Affirmed.
ADAMS, C.J., and THOMAS and ROBERTS, JJ., concur.