Howich v. Williams

STONE, J. Appellant, a brother of the testatrix, appeals from a decree determining heirship which confirmed a devise to claimant-respondent, whom testatrix described in her will as “surviving issue of my son, a daughter, Diane Marie Hicks, [252]who was born out of wedlock to Marie Hicks, of Williams, Arizona.”

Donald Frank Gilman, son of the testatrix, Viola M. Strong, was taking pilot training near Phoenix, Arizona, in 1942, when he met Marie Hicks, who was estranged from her husband, Marrel Hicks, a soldier stationed at San Bernardino, California. They began “going together” and several times engaged in sexual intercourse commencing some time prior to November 1942 when Mrs. Hicks discovered she was pregnant. In April 1943, Mrs. Strong traveled from California to Thunderbird Field in Arizona to attend Donald’s graduation exercises. Donald introduced his mother to the obviously pregnant Mrs. Hicks. After graduation, Donald was transferred to another flying field for advance training; eventually he was sent overseas and was reported killed in action during 1944.

In April 1945, when Diane was approximately 18 months old, Mrs. Strong went to Phoenix, Arizona, visited Diane and Mrs. Hicks, and persuaded them to return with her to Coalinga. They lived in the household with Mr. and Mrs. Strong. Mrs. Hicks worked for the telephone company, and Mrs. Strong took care of the child. Difficulties ensued because Mrs. Strong wanted to adopt the baby, to whom she had become attached, and Mrs. Hicks felt the only way trouble could be avoided was to leave with the child. This she did after some three months, and it appears that Mrs. Strong never again saw Diane.

Some time later, Marie Hicks married a man named Chamberlain and was living with him when this action was brought. The Chamberlains gave Diane the name of her foster father, so that all of the children were known by the name Chamberlain. Diane attended school, and married, thinking Chamberlain was her surname.

The will of Viola M. Strong, executed September 8, 1945, contained the following provisions: “Second: The following are my legal heirs: My husband, Wade Mitchell Strong and my only son, Donald Frank Gilman, who has been in military service and has been reported missing, but in the event he is now deceased, there is living, as surviving issue of my son, a daughter, Diane Marie Hicks, who was born out of wedlock to Marie Hicks, of Williams, Arizona.