131 Va. 522 | Va. | 1920
delivered the opinion of the court.
Emmanuel Hoover died intestate in 1918, leaving surviving him his -widow, five adult children, and two grandchildren, who were the children of a deceased son, Luther Hoover. There also survived him the appellee, Winnie Hoover, who claims to be the child of Benjamin E. Hoover, who was a son of Emmanuel, and died intestate in 1903.
The only question involved is the legitimacy of Winnie Hoover. She claims legitimacy under section 5269 of the Code, which is as follows: “If a man having a child or children by a woman, shall afterwards intermarry with her, such child or children or their descendants, if recognized by him before or after the marriage, shall be deemed legitimate.”
This section was first enacted in 1785 and went into effect on January 1, 1787 (12 Hening’s St. at Large, p. 139). It was as follows: “Where a man having by a woman one or more children, shall afterwards intermarry with such woman, such child or children, if recognized by him, shall be thereby legitimated.” Two questions arose upon the construction of this statute, (i) Did the legitimation extend to the descendants of the child, where the marriage did not take place untS after its death; and (2) could the recognition take place as well before as after the marriage? Both of these questions were answered in the affirmative by this court in Ash v. Way’s Adm’rs, 2 Gratt. (43 Va.) 203, Two out of the five judges who sat in that case dissented, but the statute was thereafter amended at the revision of 1849, making the holding of the majority of the court statutory, and the statute was given to us in its present form. Code 1849, ch. 123, sec. 6; Report of Revisors, p. 636. The statute, from its inception, contained the words “if recognized by him,” but they have not come before this court for interpretation except in the case of Rice v. Efford, 3 Hen. & M. (13 Va.) 225, where the father recognized the child by a devise in a will, which was refused probate be
“With respect to the statement made in said brief that it is conceded that complainant has ‘utterly failed to establish recognition from the testimony,’ we reply that no such concession has at any time been made, either by the complainant in the prosecution of her suit or by the trial court in its decision therein. We do not care to prolong the present note by a discussion in detail of all the facts which have been testified to in complainant’s behalf. However, we respectfully direct the court’s attention in this- connection to the testimony of Hiram Hoover (record, p. 29), Mrs. Lydia Hoover (wife of Hiram Hoover) (record, p. 44), and Mrs. J. M. Steam (nee Mattie Farrell, complainant’s mother) (record, p. 52).”
It may be conceded that the testimony of Mrs. J. M. Steam, mother of appellee, is to the effect that Ben Hoover did recognize the appellee as his child, but her character is so besmirched, and she is contradicted by so many witnesses on other important matters in the case, that her testimony cannot be accepted to overturn the statement and conduct of Ben Hoover from the date of the marriage to his death. In her bill for divorce, she stated that she was with child by Ben Hoover when she was married to him on May 22, 1896, and that the child (appellee) was born on July 13, 1896, when, in fact, the child was born April 16, 1896—six weeks before the marriage. She also stated in said bill that immediately after the marriage, Ben Hoover deserted and abandoned her. She testified in this cause that he continued to visit her for more than a month after the marriage. She also testified that after she was married, Ben Hoover spent four nights with her and occupied the same room with her
Another witness called by the appellee to prove “recognition” was Hiram Hoover, the foster-father of the appellee, and whom Ben Hoover repeatedly stated or plainly intimated, he believed to be the father of the appellee. The nearest approach he makes to proving recognition is that Ben offered to compromise the seduction prosecution by the payment of $300, and after this was rejected, “he came back in a few days and said he had come to the conclusion to marry Mattie now and take care of her and the baby.” On further examination on the specific subject of recognition, he was asked, and answered, as follows: “Q. Did Ben Hoover, at any time, say anything about the paternity of this child? A. No. Q. By ‘paternity,’ Mr. Hoover, I mean who was the father of the child? A. Well, he didn’t say he was the father or that he was not, at that time.” Nor does he-testify to any such statement at any other time.
Lydia Hoover, the present wife of Hiram Hoover, was also called by the appellee as a witness. She says that,- on one occasion, when Ben was helping her peel apples, his brother, Si, was there, “and Si commenced talking about it, regarding this child, and Si got up and went away and
These are all the witnesses called by the appellee to prove recognition. Omitting the testimony of Mrs. Stearns, the testimony of the other two witnesses, standing alone and uncontradicted, hardly measures up to the standard of proof required in such cases, but, taken in connection with the other evidence in the cause, to ask this court to accept the testimony of these three witnesses as proof that Ben Hoover recognized the appellee as his child, would put a strain upon the credulity of the court that it is not able to bear.
The statute under which the appellee claims title was not enacted in aid of the statute against seduction. It was in force nearly a century before the seduction statute was enacted, and the marriage therein referred to was a voluntary marriage and not one entered into to bar a prosecution for felony, and no doubt if a man voluntarily married a woman who was grossment enciente, or shortly after the birth of a child, the marriage itself would afford all the evidence necessary of recognition by the husband of the paternity of the child. But that is not this case. Here, the man himself was not in good health, his mother in the advanced stages of tuberculosis, and he is arrested on the charge of seduction under a promise of marriage, .and threatened with the rigours of the law. He is without means or the prospect of accumulating any. Without in any way acknowledging the paternity of the child, he undertakes to buy his peace. He offers a compromise of $300, but this is rejected, and $1,000 demanded. Unable to raise this sum, he determines to marry the woman as the best means of avoiding the risk and shame of a public trial, and the marriage was celebrated. It may be that it was a fearful price to pay for the immunity, and that most men who were innocent would never have paid it, but all men are not equally courageous and have not the same control of
It may be, as has been suggested, that if Ben Hoover had died immediately after the marriage ceremony and there had been no other evidence in the cause, the marriage alone might be regarded as sufficient evidence of recognition by him to have rendered the appellee legitimate, but the marriage alone would not have had that effect if it had been .shown that Ben Hoover had stated just before the marriage that he was not the father of the child, had never had anything to do with her mother, but was unable to compromise the matter, and was going to marry her to get rid of the criminal charge. The marriage was a valid legal marriage and imposed upon Ben Hoover the obligation of husband to Mattie E. Farrell. He could not take advantage of the provision of the statute to bar the criminal prosecution and thereafter evade the obligations of husband; but the obligation of husband is one thing, that of parent quite another. The marriage, under the circumstances of this ■case, was not a plain and uneqúivocal recognition by Ben Hoover of the appellee as his child. In this connection, 'counsel for the appellee rely upon Miller v. Pennington, 218 Ill. 220, 75 N. E. 919, 1 L. R. A. (N. S. ) 773, and quote from the opinion as follows:
“So, also, the Iowa Code provides that to entitle an illegitimate child to inherit from the father, the recognition of the child by the father must have been general and notorious or in writing. Watson v. Richardson, 110 Iowa 673. Our statute does not require either, but is similar to the Indiana statute, which provides that if the father shall marry the mother of a bastard child, and acknowledge it as his own, the child shall be regarded as legitimate. In*537 construing the statute, the' Supreme Court of Indiana has held that an acknowledgment by the father removes from the child the status of illegitimacy, no matter what the purpose of the acknowledgment was, or whether the father intended to make the child his heir; and that it fixes the status of the child, which cannot be changed by anything the mother or father might afterwards say. The court said: ‘Having removed the “bar sinister,” they cannot replace it.’ Brock v. State, 85 Ind. 397; Binns v. Dazey, 147 Ind. 536, 44 N. E. 644. That seems to be the correct interpretation of our statute, the purpose of which is to fix the status of the child as legitimate. It seems to us that it would be an unjust and unwarranted construction of the law to say that the father of an illegitimate child who has legitimated it by marrying its mother and acknowledging it to be his, can thereafter change its status by any subsequent declaration. All that the statute requires in respect to the acknowledgment is that the father shall own or admit the child to be his.”
We see nothing in this quotation which in any way militates against the views hereinbefore expressed. That case simply discusses the effect of an acknowledgment or recognition after it has once been established, and holds it to be irrevocable “by anything the mother or father might after-wards say.” Much more to the point is the case of Campbell v. Carroll (Ind. App.), 124 N. E. 407, which refers to Miller v. Pennington, and in which it is said:
“The appellant complains that the court committed reversible error in admitting in evidence, over appellant’s objection, the record of bastardy proceeding, in which Ovid Campbell was charged with the paternity of appellee, Carroll. The proceeding was before' a justice of the peace, and was compromised, the record showing that the parties ‘agree to compromise this cause upon the following terms.*538 to-wit: The defendant pays the relatrix the sum of $50.00 in cash this day, and executes two notes of even date herein for $125.00 each, payable in one and two years from date, and payable to Martha Carroll, trustee, for Nora Carroll, the relatrix herein being .under the age of twenty-one years, and the said trustee being her mother.
“There is no admission or acknowledgment of paternity in the record. It may not even be implied from such a record of compromise. Many men would submit to such a wrong as this, if wrong it may be, rather than to submit to the embarrassment of a public trial and the gibes of the rabble who usually gather on such occasions. The acknowledgment must be definite and certain, and must be one in which the paternity of the child is plainly and unequivocally acknowledged. Holloway v. McCormick, 41 Okla. 1, 136 Pac. 1111, 50 L. R. A. (N. S.) 536; Moore v. Flack, 77 Neb. 52, 108 N. W. 143; Pederson v. Christofferson, 97 Minn. 491, 106 N. W. 958; 7 Cyc. 949. The record of compromise should not have been admitted. Martin v. State, 62 Ala. 119; Olson v. Peterson, 33 Neb. 358, 50 N. W. 155; Lisy v. State, 50 Neb. 226, 69 N. W. 768.”
The marriage in the instant case was in the nature of a compromise or adjustment of the criminal prosecution.
Counsel for the appellee also rely upon a dictum of Chief Justice Marshall, on circuit, in Stegall v. Stegall, 2 Brock. 256, Fed. Cas. No. 13, 351. In that case it was sought to illegitimate a child born in wedlock. In the course of the opinion, the following language is used, which is quoted by counsel for the appellee, the italics being those of counsel:
“ ‘In such case as this, if the marriage had taken place in such an advanced stage of pregnancy that the situation of the wife must have been known to the husband, I should be disposed to consider it as a recognition of the child after-wards bom. Any conduct of the husband, after the birth,*539 indicating a belief that the child was his, would have been entitled to great weight, and would probably have been decisive.’ ”
The chief justice was speaking of a voluntary marriage to a woman in an advanced stage of pregnancy, followed by birth during wedlock, where every presumption possible of legitimacy is indulged. His remarks could have no application to a case like this where the conduct of the husband is fully explained and the marriage was had for an ulterior purpose.
In Townsend v. Meneley, 37 Ind. App. 127, 132, 74 N. E. 274, 275, another Indiana case, in speaking of the burden of proof to be borne by the bastard in cases involving the right of inheritance, it is said: “Before she would be entitled to inherit under the statute, it was incumbent on her to show an acknowledgment that was clear and unambiguous, and such as would exclude all but one interpretation.” Surely such cannot be said of the testimony before us. If it be conceded that the testimony on behalf of the appellee was sufficient to prove that Ben Hoover was the father of the appellee, that would simply be a compliance with the first requisite of the statute, “if a man have a child or children by a woman,” and the subsequent marriage of the man and woman would not legitimate such child or children. Both of these requisites must exist, but the fact that a man has> a child by a woman and afterwards marries her is not enough. As hereinbefore pointed out, although he is shown by the most conclusive evidence, other than his own acknowledgment, to have been the father of the child, the subsequent marriage with the woman will not legitimate the child. There must be something more, and this something must emanate from the father himself, the child must be “recognized by him.” Furthermore, the language or conduct relied upon as a recognition must be such
There is another view of the case, amply supported by the record, which shows the importance of the recognition required by the statute. Mattie Farrell must have been a woman of easy virtue, as. she was pregnant before both marriages; but her pregnancy in the first instance was not discovered until a short time before the birth of the child. Ben Hoover had been a regular visitor of hers for three years, but his visits ceased suddenly in February, 1896, and he did not visit her thereafter, as appears from the statements of both of them. The reason therefor appears, from his statements to his uncle, Noah Hoover, and also to Timothy Boadcap, that he found his uncle Hi in the bed with her. He then discovered her character, and if we may assume, contrary to his statements, that he had previously had no connection with her; he found out that he was not the only one, and that the other was one who had daily access to her. After the child was bom and something was said about its likeness to the Hoovers, he repeatedly stated that the child “looked like a Hoover all right, but that it was not his,” thus emphasizing his denial of his paternity and intimating who he thought the father was. These two people would be greatly interested to fix the paternity upon him, and he might well have feared to face the charge of seduction with their testimony against his. Under these circumstances, the marriage took place for the purpose of avoiding the trial for seduction; but, from the arrest of Ben Hoover until his death, he stoutly denied the paternity. How wise, then, is the provision of the statute which requires that the bastard, shall be “recognized by him” before it can be legitimated.
REHEARD NOVEMBER 17, 1921.
delivered the opinion of the court.
Then much has been said of the answer and cross-bill of Benjamin E. Hoover in this divorce suit, but here too the significant facts are, that the answer filed as a cross-bill did not deny the marriage and desertion, and though as a cross-bill it alleged that the marriage was invalid because induced by his own fright and the threats which had been made against him, the cross-bill was withdrawn. It also appears that although that suit was pending for several months, Hoover never appeared as a witness in support of
Then Hiram Hoover testified that shortly after the marriage Benjamin E. Hoover took his wife and the child to the home of Emmanuel Hoover, his father, to visit his mother. It must also be noted that although the accusation was clear and definite, at no time, either before or after the marriage, did Benjamin E. Hoover ever deny to Hiram Hoover, the foster father of his wife, that he was the father of the child. This question and answer appear:
“Q. After the marriage and while the wife and child were living in your family, did Ben Hoover ever attempt to explain to you his failure to provide a proper home and support for the wife and child ?
“A. He said it was on account of his father.”
This finds striking confirmation in the opposing testimony where it is shown that Emmanuel Hoover, the father of Benjamin E. Hoover, expressed his extreme displeasure on one occasion when this mother and child went to see his sick wife and remained there certainly for two days. Then this question and answer appear:
“Q. Please state whether or .not Mr. Hoover, in any of the conversations which you had with Ben Hoover concerning either the charge of seduction, the marriage, or the support of the wife and .child, Ben Hoover ever denied that he was the father of Winnie Hoover?
“A. No, he never denied it.”
Now one may recognize his child as well by conduct as by words, and this failure of Benjamin Hoover to deny
Upon further reflection we are satisfied that by his conduct, by his silence when he should have spoken, and by his words, he has recognized Winnie Hoover as his child. The
For the reasons indicated, we have concluded to affirm the decree.
Burks, J., dissenting.
Affirmed.