148 Ga. 489 | Ga. | 1918
Did the trial court err in granting the injunction and in preserving the status of the estate of Nelson H. Harrison pending the litigation? The answer to this question depends upon the answer to another controlling question involved in the case, namely, whether Mrs. Odum, one of the plaintiffs, and her deceased brother, William Henry Harrison, who was the father of the other plaintiffs, became the legitimate children of Nelson H. Harrison, deceased, or whether they were illegitimate children. It is insisted upon the part of the plaintiffs in error, who are admittedly legitimate children of Nelson H. Harrison, that about the year 1852 Eliza Strickland, the mother of Martha Odum and the grandmother of the other defendants in error, was living in the house with Richard Bennett in Wayne county, about twenty miles from the home of Nelson H. Harrison, and that while Eliza was thus living she, being unmarried, gave birth to twins, one of whom was named Martha and the other William Henry. Eliza Strickland and her two children remained in the home of Richard Bennett until Nelson H. Harrison finally went to the home of Bennett and carried Eliza and the two children to his home in Glynn county; Georgia. It is contended by the plaintiffs in error that under the evidence Martha and William Henry were illegitimate children, and therefore that neither they nor their children were heirs at law of Nelson H. Harrison and could not inherit from his estate.
Section 3012 of the Code of 1910 declares: “The marriage of the mother and reputed father of an illegitimate child, and the recognition of such child as his, shall render the child legitimate; and
The affidavit of Mrs. Emily Harrison, the widow of William Henry Harrison and the mother of all the defendants in error, except Mrs. Odum, was substantially to the same effect as the affidavit of Mrs. Odum. She also deposed that deponent’s mother was a sister of Nelson H. Harrison, and that deponent’s family lived near to Nelson H. Harrison, deceased. All of her life deponent lived near to Nelson H. Harrison. When she could first remember, his family consisted of his wife, Eliza, and four children, Eobert, William Henry, Martha, and Jane Anice. Deponent knows from family repute that her husband was borp on August 26, 1852. After deponent first knew Nelson H. Harrison’s family other children were born to him: James B. Harrison, who is now dead, Nelson C. Harrison, and Eranlc S. Harrison. All of these children were by his wife, Eliza, who was his second wife. She was Eliza Strickland before her marriage. His first wife was Hettie Burgess, and by her he had only one child, Eobert Harrison. Eobert Harrison was born in November, 1852. His mqther died when he was a few weeks old, and deponent’s mother nursed him and deponent together. During all the time deponent knew Nelson H. Harrison and his family he always treated her deceased husband, William Henry Harrison, and his twin sister, Martha, as his children. They grew up in his household and bore his name, from deponent’s earliest recollection. Nelson H. Harrison 'always
The proof shows, that Nelson Ii. Harrison, before the birth of Martha and William Henry, was a visitor to the home where Eliza Strickland lived, and sometimes spent the night; that just prior to the time he married Hettie Burgess, and before Eliza’s children were born, his visits to Eliza ceased; that no other man visited Eliza, so far as the evidence goes; that about three months after the birth of Eliza’s children, Harrison’s first wife (Hettie) had a child (Eobert) and died within a few weeks thereafter; that Harrison soon after his wife’s death renewed his visits to Eliza, who at that time had illegitimate twins; that he soon married her and took her and her children to his home, where he had other children by her, two of whom are still living, and, with the children of a deceased child by Eliza, are parties defendant in this case; that he gave Eliza’s first children his name; that they were reared in his home and were recognized as his children and he treated them as such; that Nelson H..Harrison mourned William Henry’s death as his child, and aided his widow and his children after his death; that up to the time of his death he regarded William Henry and Martha as his children and their children as his grandchildren; and’that he expected them to inherit his estate as the other children.
It is sometimes difficult to prove the fact of paternity. The act of cohabitation between a certain man and a certain woman is often difficult to prove. But where in a case like this the reputed father and the mother subsequently to the birth of twins marry, and the reputed father takes the wife and children into his own home and treats them as such, gives the children his own name, supports them and speaks of them as his children, and their children as his grandchildren, and gives the children money and one of them land of considerable value, etc., we think this is satisfactory, if not conclusive proof of such paternity. The law favors marriage, and likewise the legitimizing of children where it can be done with safety to society. See section 3012 of the Civil Code,
In Stegall v. Stegall, Fed. Cas. No. 13,351 (3 Brock. 256), it is stated: “If a man marries a woman in such an advanced state of pregnancy that the situation of his wife must have been known to him, it must be considered as a recognition of the child, afterwards born, as his own; any conduct of the husband after the birth, indicating a belief that the child is his, is decisive.” And in one of the decisions in the celebrated Myra Clark Gaines cases (Gaines v. New Orleans, 6 Wall, 642, 699 (18 L. ed. 950) ), it was said by Justice Davis: “This case seems to have been defended on the idea that every presumption was against the legitimacy of Mrs. Gaines, and the inclination of courts would be so to decide. But as she was declared legitimate by her father in his last will and testament, common justice, not to speak of legal rules, would require that such a declaration should only be overborne by the strongest proof.” The act of recognition in the Gaines case was in the will of the father. In the instant case the acts of recognition commenced when the twins were in infancy, and the father married the mother, gave the children his name, reared them in his home with his other children, gave them property and held them oat as his children, and they were so recognized. And this continued, according to the evidence of the plaintiffs, for a long number of years, and until the death of the father, who reached the ripe old age of ninety years.
Judgment affirmed.