26 Tenn. 410 | Tenn. | 1846
delivered the opinion of the court.
This bill is filed by complainant to recover a distributive share of the estate of Owen Franklin, deceased.
The complainant, Bird Cannon, alleges that his wife, Lucinda, is a daughter of Owen Franklin, and as such is one of the distributees.
Upon the first proposition, was Lucinda, the child born by Mrs. Franklin during the time she lived with her husband, the child of her husband? We think it was not. The proof of her notoriously licentious conduct; the embecile character of her husband; the habit of intimacy between her and Morgan; the expressed opinion of both Morgan and herself, that Lucinda was his child; the dying declaration of Owen Franklin that she was not his; the want of resemblance to his family, and the striking one to that of Morgan; the fact that Mrs. Franklin when she abandoned her husband, carried this child with her to Morgan, that they claimed it and gave it her name, all prove to a moral certainty that Lucinda was not the child of Owen Franklin.
Let us examine if they prove it to a legal certainty. In Mathew’s treatise upon presumptive evidence page 22 et sequi-tur,we read; “The presumption, that a child bom in wedlock, is legitimate, results from the principles of natural justice; it rests simply on the supposition of the virtuous conduct of the mother; a branch of that equitable rule, which assumes the innocence of a party, until proof be brought of actual guilt. Formerly the presumption in favor of the legitimacy of a married woman’s offspring, was strict and unyielding to an extreme.” Lord Coke, in his commentaries on Littleton lays it down, that by the common law, if the husband be within the four seas, (that is within the Jurisdiction of England,) and his wife have issue, no evidence is admissible to prove the child a bastard, except in the sole case of an apparent impossibility of
These principles are clear and significant, and we hesitate not to say, that the facts of this case, under them, fully warrant the court in believing that the wife of the Compt. Bird Cannon, is not the daughter of Owen Franklin.
But in addition to this, if it were necessary, we think that the proof, to say the least of it, leaves it extremely doubtful, whether the child Lucinda, borne by Mrs. Franklin, previous to her abandonment of her husband, did not die; and whether the present Lucinda the wife of Complainant, Cannon, was not born afterwards in the State of Georgia; but it is not necessary to determine this fact.
Then upon the whole view of the case, we are of the opinion that Lucinda Cannon is not a distributee of Owen Franklin;