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In Re Estate of Severson

OPINION FILED JUNE 23, 1982.

IN RE ESTATE OF DAGNEY SEVERSON, DECEASED. — (FIRST NATIONAL BANK AND TRUST COMPANY OF ROCKFORD, EX'R OF THE ESTATE OF DAGNEY SEVERSON, APPELLEE,

v.

EVA SEVERSON, APPELLANT.)



APPEAL from the Circuit Court of Winnebago County; the Hon. ALFORD R. PENNIMAN, Judge, presiding.

PRESIDING JUSTICE SEIDENFELD DELIVERED THE OPINION OF THE COURT:

The will of Dagney Severson, deceased, admitted to probate, left the entire estate to the Moody Memorial Church of Chicago; and named the First National Bank & Trust Co. of Rockford as executor. Eva Dobson was declared to be the niece and sole heir at law of the decedent, based upon her affidavit of heirship offered by the executor. Dobson then filed suit to contest the will. The trial court, on the executor's motion in the probate proceedings based on discovery, vacated the previous order of heirship and declared the heirs of Dagney Severson to be unknown. Dobson appeals, contending that the trial court improperly placed the burden of proof of the amended heirship on her, erroneously admitted several documents; and further claims that the findings were against the manifest weight of the evidence.

• 1 Dobson's first contention is that, once the court entered an order of heirship based on her affidavit, the order was prima facie evidence of heirship which shifted the burden of persuasion to the executor to prove the negative, that is, that Dobson was not the heir. We do not agree.

• 2, 3 The statute provides that while the order of the court declaring heirship is prima facie evidence of the heirship "any other legal method proving heirship may be resorted to by any party interested * * *." (Ill. Rev. Stat. 1979, ch. 110 1/2, par. 5-3(c).) A proceeding for proof of heirship is purely statutory, is informal, and no provision is made for an answer or any pleadings. (Sebree v. Sebree (1920), 293 Ill. 228, 235.) In the absence of formal pleadings, the general rules of evidence, including the burden of proof, apply in such proceeding. (See 1 Horner, Probate Practice in Estates sec. 205, at 361 (4th ed. 1976).) As in any civil proceeding, the burden of proof in an heirship controversy rests with the party claiming heirship, because the claimant is asserting the affirmative issues. See Lewandowski v. Zuzak (1922), 305 Ill. 612, 618; Hunt v. Morris (1932), 266 Ill. App. 18, 23.

• 4 Generally, prima facie means nothing more than "`at first sight'" or "`so far as can be judged from the first disclosure'" or "`presumably'" or "`without more.'" (Chicago v. Hertz Commercial Leasing Corp. (1978), 71 Ill.2d 333, 340.) It has been recommended that the term "prima facie evidence" when used in a statute should be interpreted to establish only a "presumption" which affects only the burden of producing evidence. E. Cleary & M. Graham, Handbook of Illinois Evidence sec. 302.8, at 76 (3d ed. 1979); see also Diederich v. Walters (1976), 65 Ill.2d 95, 102.

In her affidavit of heirship Dobson stated that the decedent Dagney was one of three children of Bernt Severson and his wife, Christine Hansen [sic] Severson, both of whom predeceased the decedent; that decedent's sister Helga Severson predeceased the decedent, having never married and leaving no child surviving; and that decedent's brother Harald Severson also predeceased the decedent, leaving Eva Dobson as his sole heir at law. At the hearing on the motion to amend the heirship it was stipulated on behalf of Dobson that if Mrs. Marjorie Stibb testified, she would have said that she knew the decedent for 45 years, that Dagney had told her that she had a brother who lived in Rockford but was now deceased, who had a daughter, Eva Dobson.

The executor denied that the decedent was the sister of Harald, Dobson's father, and produced the testimony of Sam F. Fink, a genealogical investigator, who had been appointed by the court on the executor's motion. He had the death certificate of decedent upon which Dobson was the informant and in which Dobson named "Berndt Severson" and Kristine Hansen" (maiden name) as Dagney's father and mother. In her later deposition she stated the mother's name was actually Kristine Pedderson. Dagney's birth date was stated to be December 16, 1888, in Norway. Fink went to Oslo, Norway, the birthplace of Dobson's father, where he collected copies of various documents which, along with other documents obtained in the United States, formed the basis of his report to the court.

The death certificate of Harald Severson, Dobson's father, indicates his birth date as October 8, 1885, in Norway and the date of his death as June 25, 1932, and the names of his parents as "unobtainable." His naturalization papers list his birth date as October 8, 1880, at Christiana, Norway, and his date of arrival in the United States as June 29, 1901. His marriage certificate discloses that he was born October 8, 1880, at Barum (Oslo) Norway to "Bernt Syversen" and "Lise Olava Syversen (born) Olsen." His immigration papers indicate that he sailed for the United States on the ship Helga on June 11, 1901.

The marriage record of Bernt Seversen and Lisa Olava Olsen states that they were married on July 7, 1878. The 1891 Oslo census shows the family was headed by Bernt and included Lisa Olava as his wife, and four children in addition to Harald (b. 1880): Laura Amalie (b. 1878), Borghild Sofie (b. 1883), Helga (b. 1887) and Birgitte Ovida (b. 1889). The deceased, Dagney Severson, is not listed in the 1891 census as a part of the Bernt Seversen household. In addition to Harald's birth certificate, Fink located the birth certificate of Borghild, Helga, and Birgitte at a parish church where Helga and her husband were buried. No birth record for Dagney was found at that parish.

The death certificate of Bernt's wife, "Lise Olava Oldsdaughter Syversen" bears the date of death of October 15, 1892. Bernt's death certificate indicates he died on December 4, 1929.

The census for 1900, by which time Lisa Olsen had died, lists Bernt Severson as head of the household and Harald, Birgitte, and Helga as children. It lists Kristine Severson (b. 1862 in Sweden) as wife and Dagney Severson (b. 1888 in Kristiania (Oslo)) as a daughter. However, Fink searched for but could not find a marriage license for Bernt and Kristine. He testified that Norway did not have laws on adoption until 1917.

The decedent wrote to her attorney in a letter of May 22, 1974, that:

"* * * You would like to have a list of the names of my relatives.

My parents are dead and I have no brothers or sisters or any other relation. ...


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