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FOURTH DIVISION
December 4, 2003

No. 1-03-0499

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

Thereafter, Della Tucker, Columbus Tucker, Theresa Brice,Sylvia Brice and Odessa Brice (plaintiffs) filed an emergencypetition to contest the will and a motion to amend the orderdeclaring heirship on the basis that they were the grandchildrenof decedent. There was testimony that in 1928 Parthenia Whitegave birth to plaintiffs' mother, Della Mae Tucker, in Memphis,Tennessee, at a time when she was unmarried. There was furthertestimony that Allen White and Parthenia lived in a familyrelationship in Memphis, Tennessee, until 1940 when they moved toIllinois. Thereafter, in 1950, Allen and Parthenia intermarried and continued to live in a family relationship with Della Maeuntil her death. Della Mae Tucker died in 1969 survived by herchildren, 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 isacknowledged 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, thedecedent, acknowledged that Della Mae Tucker, plaintiffs' mother,was his daughter and whether such acknowledgment satisfied therequirements of the statute. We believe that plaintiffs havecarried that burden.

Charliemae Boston, not related to any of the parties nor aninterested party in this matter, testified at the hearing onplaintiffs' motion that she first met Allen White, PartheniaWhite, and their daughter in 1952 after they moved to Illinois. She stated that they were openly living together as a familyunit. When specifically asked whether Allen White acknowledgedto her that Della Mae Tucker was his daughter, she stated "yes." Ms. Boston further testified that decedent's acknowledgment wasmade directly to her. On cross-examination, defense counselmerely asked whether she was present when Ms. Tucker was born andwhether she was there when the birth certificate was written bythe doctor. No further inquiries were made as to the factualbasis for witness Boston's statement as to Della Mae Tucker'sparentage.

Three of the plaintiffs testified that they lived in an openfamily unit with decedent, Parthenia White (his wife), and theirmother, Della Mae Tucker, before and after their mother's deathin 1969. Plaintiff Columbus Tucker testified that during thetime he lived with decedent, decedent acknowledged that Della MaeTucker was his daughter and that he was decedent's grandson. During the time they lived together, decedent bought him giftsand clothes, cared for him, and provided shelter and money forhis 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 hisdaughter and that she was his granddaughter.

Family pictures were entered into evidence showing decedentat various family functions with plaintiffs. The plaintiffs alsogave detailed testimony on the family genealogy going back fourgenerations.

In addition to similar testimony as to the decedent'scontribution to the health care, upbringing, and education of theplaintiffs, plaintiff Odessa Brice testified that decedent purchased a car for her and, in connection with such purchase,executed a document entitled "Illinois Personal AutoApplication." In that application, decedent indicated that hewas purchasing the car for Ms. Brice and identified her as hisgranddaughter. Plaintiff Brice also referenced a birthday cardshe received in March 2002 which stated: "Granddaughter. Here'shoping that your birthday is so happy while its here. You'llwish you had one every day instead of once a year. Have fun. Grandpa Allen White." Both the auto application and the birthdaycard were admitted into evidence.

The defendants both acknowledged that the decedent hadraised the plaintiffs in an open family relationship and statedthat they did not have personal knowledge of whether decedent wasthe father of Della Mae Tucker. Moreover, both testified thatalthough the decedent did not specifically acknowledge to themthat Della Mae Tucker was his daughter, at no time did he deny tothose witnesses that Della Mae was his daughter.

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

We agree with plaintiffs that, in Illinois, a writtenacknowledgment of paternity is not required and that proofoffered by way of testimonial and documentary evidence, uncontradicted by a disinterested witness, is sufficient to provepaternity. Kennedy v. Kennedy, 93 Ill. App. 3d 88, 92 (1981). The issues before us are not new. In 1905, our supremecourt considered a case quite similar to the case at bar. InMiller v. Pennington, 218 Ill. 220 (1905), decedent was livingwith his first wife with whom he had four children. His wife'scousin, an unmarried woman, had two children: one in 1864 and theother in 1865. Years later, in 1902, decedent married the motherof the illegitimate children and lived with her until his deathsome two years later. He acknowledged to a number of people thathe was the father of the two children. Many of thesedisinterested persons testified in the case. However, there wasa significant amount of testimonial evidence of other witnessesthat he had denied to them that he was the father of the parties,and that such denials were made both before and after he marriedtheir mother.

It should be noted that in the case at bar there was notestimony that the decedent ever denied that he was the father ofplaintiffs.

In Pennington, the court observed:

"[The] acknowledgment required by the statute is a general and public one; that the father must show, by his acts, words and treatment of the child, that he regards, and desires the public to regard, it as his legitimate offspring and that all his acts and words, taken together, must show that he intends to make the child legitimate***." Pennington, 218 Ill. at 224.

In its analysis, the court observed that no matter what thepurpose of the acknowledgment was or whether the father intendedto make the child his heir, the acknowledgment fixes the statusof the child which cannot be changed by anything the mother orfather might say afterward. Pennington, 218 Ill. App. at 226. Put plainly, the court stated: "'Having removed the "barsinister," they cannot replace it!'" Pennington, 218 Ill. at 226, quoting Brock v. State ex rel. Johnson, 85 Ind. 397, 399(1882).

In In re Estate of Healea, 254 Ill. App. 334 (1929), as aresult of the complex relationship between the purported motherand father, claimant had to first prove that Mary Healea was hermother and had left her on a relative's doorstep four weeks afterher birth. The mother later intermarried with the decedent, withwhom she had an ongoing relationship. From time to time over theyears, decedent verbally acknowledged the child as his. He wasparticularly sensitive about her reputation, the status of anillegitimate child in those days being somewhat different than incurrent society. The court determined that decedent had made aproper and sufficient acknowledgment.

Similar to the case at bar, in In re Estate of Waszkiewicz,42 Ill. App. 2d 49 (1963), decedent married the mother of anillegitimate child and acknowledged him to be his son for aperiod of more than 36 years. Moreover, we note that secondaryevidence of paternity, such as an individual's verbalacknowledgments, is appropriate evidence to be considered in suchcases. Olenick, 204 Ill. App. 3d at 298.

In considering the evidence submitted, the defendantssuggest that in Kennedy, the court acknowledged that "it is wellsettled that 'courts lend an unwilling ear to testimony byinterested persons as to what a dead person has or has not said,and such evidence [should] be carefully scrutinized as well asconsidered with all the other evidence in the case.'" Kennedy,93 Ill. App. 3d 83 at 92, quoting Naden v. Naden, 37 Ill. App. 3d571, 574-75 (1976). In this case, the testimony comes from adisinterested person as well as the plaintiffs. Ms. Bostonspecifically stated that decedent acknowledged the paternity ofDella Mae Tucker and such testimony remains uncontradicted.

In addition to the testimony of Ms. Boston, we give greatweight to the fact that decedent, in purchasing a car for one ofthe plaintiffs, specifically stated that the purchase was for hisgranddaughter. Since a granddaughter is the daughter of one'sdaughter, such an acknowledgment is written evidence of therelationship. A similar conclusion can be drawn with respect tothe birthday card given to one of plaintiffs wherein the decedentacknowledges himself as a grandfather of the birthday celebrant. And, as we have previously noted, descendants of a child born outof wedlock to parents who later marry and acknowledge that childas theirs are able to inherit from the decedent parents, as theyare, legally speaking, grandchildren. In re Estate of Janussek,281 Ill. App. 3d 233, 236 (1996).

Curiously, defense counsel asked each witness if he or shewas present at the time of Della Mae Tucker's birth. Beingpresent at someone's birth would not necessarily identify thefather and most children are hardly likely to be present attheir mother's birth. The statute does not provide that thewitness be present at the birth of the child born out of wedlock,but merely that the alleged father acknowledged that the child ishis. See 755 ILCS 5/2-2(h) (West 2002). There is ampletestimony that Allen White acknowledged that Della Mae Tucker washis daughter and that the plaintiffs were his grandchildren. Moreover, there was no evidence in this case to counterbalancethe plaintiffs', since defendants chose not to offer any.

Defendants speculate as to why decedent, if the petitionerswere his grandchildren, would execute a will leaving his worldlypossessions to defendants. On that issue, we note that as a partof the trial court proceedings and in the record on appeal,plaintiffs allege that decedent's last will and testament was notattested or notarized in conformity with Illinois law and thatthe signature appearing on the will as decedent's may not, infact, have been decedent's signature. It is further intriguingto note that decedent did not apparently know the gender of theperson he appointed as his executor; but, the will contest is foranother time.

In any event, we believe that the plaintiffs have satisfiedthe burden of clear and convincing evidence that decedentacknowledged paternity of Della Mae Tucker and that the order ofthe trial court was against the manifest weight of the evidence.

For the foregoing reasons, we reverse the decision of thetrial court and remand to correct the table of heirship.

Reversed and remanded.

QUINN, P.J., and THEIS, J., concur.