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Kennedy v. Kennedy

OPINION FILED FEBRUARY 3, 1981.

TERRANCE EMMONDO KENNEDY, A MINOR, BY CATHY DAVIS, HIS MOTHER AND NEXT FRIEND, PLAINTIFF-APPELLANT,

v.

MAEBELL KENNEDY, ADM'X OF THE ESTATE OF BENJAMIN KENNEDY, DECEASED, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Cook County; the Hon. FRANK M. SIRACUSA, Judge, presiding.

MR. JUSTICE STAMOS DELIVERED THE OPINION OF THE COURT:

Petitioner Terrance Kennedy, by his mother Cathy Davis, brought this action in the circuit court of Cook County to amend the order of heirship of decedent Benjamin Kennedy's estate. Following Benjamin Kennedy's death at age 27, his mother Maebell Kennedy was appointed administratrix of his estate. The heirship order was entered on August 16, 1979. Decedent's personal estate was valued at approximately $13,193. On November 9 of that year, Cathy Davis petitioned the probate court to amend the heirship order. The petition alleged that Maebell Kennedy, as administratrix, had failed to include Davis' child Terrance, son of decedent, on the heirship list. The petition also stated that the administratrix had not given Terrance notice of the pending heirship proceeding even though she was aware of the existence of the possible claim.

At the hearing on the motion to amend the heirship list, the following testimony was adduced. Mary Jacobs, the medical records clerk at St. Francis Hospital in Evanston, presented a document which contained a signed acknowledgement by Benjamin Kennedy of his paternity of Terrance Kennedy. Jacobs testified that this record was kept by the hospital in the ordinary course of business, and that since the time of its completion, it had been retained in the custody of the hospital. She also identified the document as the original record. The document, dated July 18, 1977, was then admitted in evidence.

The second witness was Cathy Davis. She identified herself as the mother of Terrance Kennedy. She testified that she first met Benjamin Kennedy in 1973 and moved in with him in 1975, remaining with him until the time of his death. Terrance was born on July 14, 1977, at St. Francis Hospital in Evanston. Davis asserted that decedent was Terrance's father and that she had not had sexual intercourse with anyone other than decedent during her 6-year relationship with decedent. At this point a document entitled "Certificate of Live Birth" was introduced as evidence. The document recorded the baby's name as Terrance Emmondo Kennedy and the father's name as Benjamin Gibson Kennedy.

Davis also testified that while she was in the hospital following Terrance's birth, she spoke to decedent, both on the phone and during his visit to the hospital, discussing the naming of the baby and decedent's father's recent death. Davis stated that while she lived with decedent he paid her expenses before and after the child's birth, and that decedent had spoken of covering the child on his insurance policy. She also testified that the child's first birthday was celebrated at decedent's mother's home (the administratrix in this proceeding). The child received gifts from decedent's family on that occasion and at Christmas. Davis testified that, after his father's death, Terrance began receiving social security benefits as Benjamin Kennedy's dependant.

On cross-examination, Davis admitted that she had visited Atlanta prior to the child's birth and that she knew a man named Carl in Evanston. She denied, however, that she had had sexual relations with anyone other than decedent from 1973 to 1977. No date or month of her visit was established.

Petitioner called Maebell Kennedy to testify as an adverse witness. She testified that during her visits to her son's home, he was alone. She knew that Davis lived with him in 1973, but denied that they had cohabited in 1974 or 1975. Although Davis brought Terrance to her home, Maebell Kennedy denied giving him presents. She also denied initiating any phone conversations with Davis.

Following her examination as an adverse witness, Maebell Kennedy remained on the stand to testify on behalf of the estate. She alleged that Davis had told her that she, Davis, had gone to Atlanta in October of 1976, and had met a man there. At the same time, Davis was dating a man in Evanston known as Carl. Maebell Kennedy admitted, however, that although she was sure that Davis had been "seeing" men other than Benjamin Kennedy, she did not know if Davis had had sexual relations with them. The testimony continued:

"Q. When she returned, did you learn — how did you learn that she was pregnant?

A. Through by Ben, a couple of months after she returned from Atlanta.

Q. What did the deceased tell you about that?

A. He said, `Mama, Cathy told me she was pregnant, but I know it is not mine.'

Q. Who was saying it was his? Who was saying that the ...


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