Plaintiffs' strongest piece of evidence, the written acknowledgment of paternity, has gone out as a forgery. In my opinion, the certificate of birth should also be eliminated. The contradictory and improbable testimony of Ida Garcia and her husband as to the authorization by the deceased of the insertion of his name in the certificate as the father of plaintiffs is in keeping with the evidence of fraud on the face of the certificate referred to in the majority opinion. Without these two pieces of evidence the case as to the recognition is exceedingly weak. The mother of plaintiffs testified:
"Q. Well, now he didn't say in that conversation, did he, that Julian was his child? A. Yes; he did.
"Q. He did? A. He did.
"Q. Well, who was present when he said that? A. He said it to me; there was no other person present.
"Q. Do you remember a single time during the ten years that you said Mr. Macario Torrez was coming to your place that anyone was present besides you and Mr. Torrez when he said that he was the father, that he was satisfied he was the father of these children, a single person, no. A. He said that. He told me that at the house. He wasn't going to tell me that in the presence of other people that might be there.
"Q. Yes, now isn't it a fact so far as you know that he never did tell any person except you that he claimed to be the father of those children? A. Yes, he did tell another person. *Page 563
"Q. Were you present? A. No.
"Q. No? A. I wasn't present.
"Q. Then so far as you know he never told anyone so far as you personally know except to tell you. No. A. Other people I don't know, only to a first cousin of mine that he told."
This first cousin was brought three hundred miles to testify. Plaintiffs' mother's theory that there was a studied avoidance by the deceased of declarations of paternity is fully borne out by the record. Dr. Ottosen, the chief witness of plaintiffs other than relatives, who had known the deceased twenty-five years, as well as all other of plaintiffs' witnesses except relatives, admitted that the deceased had never acknowledged that he was the father of the boys in their presence or used any expression which might lead one to believe that he was their father. Plaintiffs' witness testified that the deceased was normally communicative. He had lived all his life in that vicinity and resided, with his wife, twelve miles from Willard. He never used a car. When he came to town he called on the mother of plaintiffs, whose male relatives, including a son, were employed by him as sheep herders.
Is it the province of this court to inquire why this old man, being treated for impotency, did not acknowledge the paternity of plaintiffs; or does the statute in words, the meaning of which is so well known that definition is unnecessary, confine the issue to an inquiry as to whether or not the deceased recognized plaintiffs as his children, and whether such recognition was "general and notorious"?
This legislation admitting illegitimate children to the right of succession is undoubtedly in derogation of the common law, and should be strictly construed. Cope v. Cope, 137 U.S. 682,11 S. Ct. 222, 34 L. Ed. 832.
The conditions existing in this territory at the time of the enactment of the statute in 1889 were peculiar. See Reports of Attorney General on prosecutions under Edmonds-Tucker Act, 24 Stat. at Large, 635. Federal court records showed many prosecutions of men who had reared families without marrying the mothers of their children. They lived with these women openly and their recognition of their children was general and notorious. Comparatively few prosecutions against men with two or more women were brought in this territory. In 1887 the territorial Legislature enacted chapter 32 on descents, section 9 of which reads as follows: "The real and personal estate of any man dying intestate, without heirs resident in any of the United States at the time of his death, or legitimate children capable of inheriting without the United States, shall descend to, and be vested in his illegitimate child or children who are residents of this territory or any of the United States; and such illegitimate child or children shall be deemed and taken to be the heir or heirs of such intestate in the same manner and entitled to take by descent or distribution to the same effect and extent as if such child or children had been legitimate: Provided, That the intestate shall have acknowledged such child or children as his own during his life time: And provided further, That the testimony of the mother of such child or children *Page 564 shall in no case be sufficient to establish the fact of such acknowledgment." The wife and mistress are not in the same category.
The whole history of legislation on this subject shows an appreciation of the institution of matrimony, as well as the danger of fraud and perjuries giving rise to abuses under these statutes. Is sufficient consideration being given to this policy? We lately reversed a trial court which held that a suit to quiet title was necessary where the rights of illegitimate children of testator, if any he had, had not been foreclosed. Montgomery v. First Mortgage Co., 38 N.M. ___, 29 P.2d 331. Many land titles, good on this theory, will become unmerchantable in fact if we hold that on such scant showing as was here made by relatives of the unmarried mother, "general and notorious" recognition of paternity can be established; and if fraud and forgeries, when exposed, are to be considered to have only "negligible bearing on the case." This jurisdiction will become the favorite field of operation of those engaged in building up cases against the rightful owners of estates.
I dissent.