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Brice v. Estate of White

December 04, 2003

ODESSA BRICE, DELLA TUCKER, THERESA BRICE, SYLVIA BRICE, AND COLUMBUS TUCKER, PLAINTIFFS-APPELLANTS,
v.
THE ESTATE OF ALLEN WHITE, DECEASED, JEAN WILLIAMS, AND ANTHONY STEWART, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County No.: 02 P 8003 Honorable Robert Cusack, Judge Presiding.

The opinion of the court was delivered by: Justice Greiman

UNPUBLISHED

Allen White died on September 20, 2002. Thereafter, Anthony Stewart, a first cousin once removed of the decedent, sought the issuance of letters testamentary in the probate division of the circuit court of Cook County. Letters testamentary were issued to Anthony Stewart pursuant to his affidavit of heirship indicating that Anthony Stewart, a/k/a Toni Stewart, and Jean Williams were decedent's heirs at law. Additionally, an order was entered admitting a will dated October 5, 2001, to probate, which will designated Stewart as executor and left 40% of the decedent's estate to Stewart and 60% to Williams.

Thereafter, Della Tucker, Columbus Tucker, Theresa Brice, Sylvia Brice and Odessa Brice (plaintiffs) filed an emergency petition to contest the will and a motion to amend the order declaring heirship on the basis that they were the grandchildren of decedent. There was testimony that in 1928 Parthenia White gave birth to plaintiffs' mother, Della Mae Tucker, in Memphis, Tennessee, at a time when she was unmarried. There was further testimony that Allen White and Parthenia lived in a family relationship in Memphis, Tennessee, until 1940 when they moved to Illinois. Thereafter, in 1950, Allen and Parthenia intermarried and continued to live in a family relationship with Della Mae until her death. Della Mae Tucker died in 1969 survived by her children, the plaintiffs in this cause.

Section 5/2-2(h) of the Probate Act of 1975 provides "[a] person who was illegitimate whose parents intermarry and who is acknowledged by the father as the father's child is legitimate." 755 ILCS 5/2-2(h) (West 2002).

The issue here, therefore, is whether Allen White, the decedent, acknowledged that Della Mae Tucker, plaintiffs' mother, was his daughter and whether such acknowledgment satisfied the requirements of the statute. We believe that plaintiffs have carried that burden.

Charliemae Boston, not related to any of the parties nor an interested party in this matter, testified at the hearing on plaintiffs' motion that she first met Allen White, Parthenia White, and their daughter in 1952 after they moved to Illinois. She stated that they were openly living together as a family unit. When specifically asked whether Allen White acknowledged to her that Della Mae Tucker was his daughter, she stated "yes." Ms. Boston further testified that decedent's acknowledgment was made directly to her. On cross-examination, defense counsel merely asked whether she was present when Ms. Tucker was born and whether she was there when the birth certificate was written by the doctor. No further inquiries were made as to the factual basis for witness Boston's statement as to Della Mae Tucker's parentage.

Three of the plaintiffs testified that they lived in an open family unit with decedent, Parthenia White (his wife), and their mother, Della Mae Tucker, before and after their mother's death in 1969. Plaintiff Columbus Tucker testified that during the time he lived with decedent, decedent acknowledged that Della Mae Tucker was his daughter and that he was decedent's grandson. During the time they lived together, decedent bought him gifts and clothes, cared for him, and provided shelter and money for his education.

Plaintiff Sylvia Brice similarly testified that decedent paid for her college tuition, attended her college graduation, and openly acknowledged to her that Della Mae Tucker was his daughter and that she was his granddaughter.

Family pictures were entered into evidence showing decedent at various family functions with plaintiffs. The plaintiffs also gave detailed testimony on the family genealogy going back four generations.

In addition to similar testimony as to the decedent's contribution to the health care, upbringing, and education of the plaintiffs, plaintiff Odessa Brice testified that decedent purchased a car for her and, in connection with such purchase, executed a document entitled "Illinois Personal Auto Application." In that application, decedent indicated that he was purchasing the car for Ms. Brice and identified her as his granddaughter. Plaintiff Brice also referenced a birthday card she received in March 2002 which stated: "Granddaughter. Here's hoping that your birthday is so happy while its here. You'll wish you had one every day instead of once a year. Have fun. Grandpa Allen White." Both the auto application and the birthday card were admitted into evidence.

The defendants both acknowledged that the decedent had raised the plaintiffs in an open family relationship and stated that they did not have personal knowledge of whether decedent was the father of Della Mae Tucker. Moreover, both testified that although the decedent did not specifically acknowledge to them that Della Mae Tucker was his daughter, at no time did he deny to those witnesses that Della Mae was his daughter.

The statute provides that "paternity must be proved by clear and convincing evidence." 755 ILCS 5/2-2-(h) (West 1994), section 2-2(h) and Illinois courts have so held. In re Estate of Severson, 107 Ill. App. 3d 634, 639 (1982); In re Estate of Olenick, 204 Ill. App. 3d 291, 298-99 (1990).

We agree with plaintiffs that, in Illinois, a written acknowledgment of paternity is not required and that proof offered by way of testimonial and documentary evidence, uncontradicted by a disinterested witness, is sufficient to prove paternity. Kennedy v. Kennedy, 93 Ill. App. 3d 88, 92 (1981). The issues before us are not new. In 1905, our supreme court considered a case quite similar to the case at bar. In Miller v. Pennington, 218 Ill. 220 (1905), decedent was living with his first wife with whom he had four children. His wife's cousin, an unmarried woman, had two children: one in 1864 and the other in 1865. Years later, in 1902, decedent married the mother of the illegitimate children and lived with her until his death some two years later. He acknowledged to a number of people that he was the father of the two children. Many of these disinterested persons testified in the case. ...


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