| Me. | Jun 4, 1890
The only question at issue in this case is whether the two female respondents are the legal heirs of William Mitchell, deceased, under whom all the parties claim.
These two respondents do not claim as the legitimate children of the decedent, but as illegitimate, adopted and made his heirs by virtue of the provisions found in K. S., c. 75, § 3. Whether their rights depend upon the statute cited, or the amendment found in chapter fourteen in the acts of 1887, or whether the heirship depends upon the subsequent marriage, or the written acknowledgment of the decedent, is immaterial as bearing upon the question now raised. In either case it must first appear that the child is illegitimate. The statute does not, nor does it purport to act upon any other. Nor does the subsequent marriage, adoption or acknowledgment have any tendency to prove this fact. Whatever may be the effect of the acknowledgment in showing the paternity of one proved to be illegitimate, it can not be taken, as proof of the illegitimacy.
This case presents a good illustration of these principles. If these two respondents were the children of the decedent, they were undoubtedly illegitimate. But the proof is very strong that one at least was born while the mother was in wedlock with another man, and under circumstances showing that the husband might have been the father. Hence the child was born in wedlock and the presumption of legitimacy is so strong that it can not be overcome by proof of the wife’s adultery while cohabiting with her husband, much less by the mere admission of the adulterer. Hemmenway v. Towner, 1 Allen, 209, and cases cited.
Hence this fact of illegitimacy was for the jury upon the testimony in the case. But the court took it from them, assuming that the admitted fact that the children were born before the marriage of the mother w'ith the decedent, was sufficient to make the written acknowledgment effectual in establishing their claims as heirs. This was error.
Exceptions sustained.