43 Miss. 392 | Miss. | 1871
The probate court of Eranklin county had granted letters of guardianship to John W. Herring of the person and estate of John T. Goodson, a minor.
Elisha Goodson, as the father of the minor, by petition, applied to the probate court of Franklin county, to revoke the letters, on the ground that the minor was and had always been a resident of Jefferson county; that no notice of Herring’s application had been given to him; that as father, he was natural guardian, and had the better right; that there was no jurisdiction over the guardianship of the minor in the probate court of Franklin county.
Herring in his answer denies the right of Elisha Goodson to intermeddle in the matter, because as he avers, the said Elisha had not access to the mother of said minor for more than thirteen months immediately preceding his birth, and therefore is not the father of the child. The cause went to final hearing on the petition and answer, without proof on either side.
The single question is, was the decree of the probate court, revoking and annulling the letters of guardainship of Herring, proper.
Goodson states in his petition that he had an application pending in Jefferson county when he learned of the appointment of Herring as guardian in Franklin county. It seems that the jurisdiction to appoint a guardian for this ward, pertained to the probate court of Jefferson county rather than Franklin. It is averred in the petition, that the minor, at the date of Herring’s appointment, resided, and had always resided in Jefferson county; his person was in that county, and most likely his estate also. This allegation is not denied in
The plaintiff in error, insists that the paternity of Elisha Goodson was in issue by the pleadings, and that the onus of proof was on the petitioner. We think not, to the extent at least, and to the effect claimed. A child born after the marriage, and during the husband’s life, is presumed to be legitimate ; and so firm was this presumption originally, that it would not be rebutted, unless the husband was incapable of procreation, or was absent beyond the four seas during the whole period 'of the wife’s pregnancy. Co. Litt., 244 a; Rex v. Alberton, 1 Lord Ray, 395; Rex v. Murray, 1 Salk, 121. This ancient rule has been so far relaxed, that in later times, this presumption may be overcome by showing that the husband had no opportunity for intercourse, and the jury, from all the facts, are to infer whether intercourse did or not take place. Banbury v. Gardner, Peerage cases; Rex v. Luffe, 8 East, 173; State v. Petteway, 3 Hawks., 623; 1 Phil. Evi., 630. The defendant, Herring, did not deny the paternity of Elisha Goodson, except by the affirmative allegation of non-access to the mother. It would be incumbent on him, in order to overcome the presumption of legitimacy, to prove the non-intercourse.
In our view, then, of the pleadings, the cause was heard on the allegation of the petition that the minor’s home and residence was in Jefferson county, and that Elisha Goodson, as father, had made application there for guardianship, but