Lela May Shwinogee sought and by the judgment recovered an undivided one-third interest in lands involved and described, of which Sam Shwinogee died seized in May, 1921. Plaintiff alleged that she was a half-sister of Lucinda Shwinogee, deceased, an enrolled citizen of the Choctaw Tribe of Indians, whose allotment descended to her sole and only heir at law, her father, Sam Shwinogee. By the judgment she secured possession of the land and quieted her title therein. A jury was waived. The evidence established that plaintiff was a child of deceased, Sam Shwinogee, and Hattie Green, Sam Shwinogee publicly acknowledged plaintiff to be his child. She was born and for years remained in his home, he sent her to school and treated her as his legitimate child.
Hattie Green, now Spencer, testified that she was the mother of plaintiff; that she and Sam Shwinogee lived together five years; that he was supposed to be her husband; they were not married according to law, but stayed together as man and wife; that he told her they were going to be married; that he drank, she was afraid, but they lived together. Other witnesses testified that Sam held out to the public that Hattie was his wife and plaintiff his child. After the birth of plaintiff, Hattie Green went away. Sam was subsequently married to Sarah S. Brown, of which marriage Samuel Everett Shwinogee, a minor, was born.
On appeal it is urged that the trial court erred in overruling defendants' demurrer to the evidence, and that the judgment is not sustained by sufficient evidence and is contrary to law.
It is contended that evidence establishing a legitimation was not properly admitted for the reason that the same was not within the issues. Proponents of this contention now say:
"Upon reflection, however, we are convinced that the testimony tended in a way at least to support the issue presented that the plaintiff was the issue of Hattie Green and Sam Shwinogee, and born of a common-law marriage between them. The evidence, as a whole, however, not only fails to show that the plaintiff was born of a common-law or other marriage between Hattie Green, her mother, and Sam Shwinogee, but shows conclusively that if she is the daughter of Sam Shwinogee, she was born of a purely illicit and meretricious relation."
We now agree with appellants that this evidence tended to establish what is known as a common-law marriage. We hold, further, it was within the issues pleaded by plaintiff that deceased left a female entitled to inherit — for the right to inherit as a child results from and is an incident of the status of legitimacy — so then not only was the purported common-law marriage an issue, but also was legitimation.
"Legitimation," says the opinion in Green v. Wilson,112 Okla. 282, 240 P. 1051, "as a matter of law, equalizes children born out of wedlock with legitimate children." Jameson v. Jameson, 111 Okla. 82, 238 P. 426.
The statute applicable, section 8057, C. O. S. 1921, provides:
"Such child is thereupon deemed for all purposes legitimate from the time of its birth." and "The status thus created is that of a child adopted by regular procedure of court."
Provision of the statute as to adoption does not apply to such legitimation. Allison v. Bryan, 21 Okla. 557, 97 P. 282; Templeman v. Bruner, 42 Okla. 6, 138 P. 152, 139 P. 993; Jones v. Snyder, 121 Okla. 254, 233 P. 745; Harris v. Gammill, 108 Okla. 288, 236 P. 878.
While not brought to our attention, we are not unmindful of the provisions of section 11303 of our statutes. See Wolf v. Gall, infra.
There was no motion to make definite and certain, but the answer was in effect a general denial. The contention must fail (Fisher v. Fisher, 116 Okla. 129, 243 P. 730), for the word "child" is not to be confined to the strict common-law signification, but includes a legitimated child under section 8057, supra. (Wolf v. Gall [Cal.] 163 P. 346; Eddie v. Eddie8 N.D. 376, 79 N.W. 856, 73 Am. St. Rep. 765; In re Estate of Wardell, 57 Cal. 484), as well as section 3534, C. O. S. 1921, wherein it is said the term "children" includes children by birth and by adoption. Section 8057, supra, having said "The status thus *Page 151 created is that of a child adopted by regular procedure of court," necessarily includes a child legitimated under the latter section.
The allegation of plaintiff's petition was an averment of an ultimate fact — as presented, the defendants are not entitled to successfully complain of the admission of the evidence. The court properly overruled the demurrer to the evidence. The judgment is sustained by sufficient evidence, it is consistent with the law, and the same is affirmed.
BRANSON, C. J., MASON, V. C. J., and HARRISON, PHELPS, LESTER, HUNT, CLARK, and HEFNER, JJ., concur.