Howich

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,…