Jacobs v. Jacobs
225 S.W. 22
Ark.
1920
Check Treatment
Habt, J.

(after stating the facts). In the case of Kennedy v. Stale, 117 Ark. 113, which was a bastardy proceeding, the court held that where a child is born in wedlock it is presumed to be legitimate, but that this presumption may be rebutted by sufficient evidence showing that the husband was impotent or entirely absent at the period in which the child in the course of nature has been begotten so that lie could not have had access to the child’s mother. The rule is about the same on the subject of descent and distribution. The question of the legitimacy or illegitimacy of the child of a married woman is one of fact, resting upon decided proof as to the nonaccess of the husband. 2 Kent, Comm. (14 ed.) *211.

In Patterson v. Gaines (U. S.), 6 How. 550, and Gaines v. Hennen, 24 How. (U. S.) 553, the court held that access between man and wife 'is always presumed until otherwise plainly proved, and nothing is allowed to impugn the legitimacy of a child short of proof by fact showing it to be impossible that the husband could have been its father. This is the general rule on the subject. 3 R. C. L., pp. 728-29.

Conception during wedlock is not essential to the presumption of legitimacy which arises from birth in wedlock. There is a division as to the amount of proof necessary in such cases. Some of the authorities hold that antenuptial conception does not even weaken the presumption of legitimacy arising from postnuptial birth. This is in recognition of the frailties of human nature. 3 R. C. L., § 10, p. 730.

Another line of authorities recognizes that the presumption is -weaker in cases of antenuptial conception, and the reason given is that it is the marriage only, and not the presumed intercourse resulting from marriage, which creates the presumption. It does not make any difference which of these, rules is correct, so far as his case is concerned, for the finding of the court is correct under either rule. The decided weight of authority is that every child born during wedlock is rightly presumed to be the offspring of the husband. The presumption must be adhered to for the protection of the rights of those who are attempted to be bastardized without any fault on their part, to preserve the peace of families and to promote the interest of society.

In the present case it is claimed that the proof overcomes the presumption of the legitimacy of Lola Jacobs. We think the proof falls short of doing this, and that the court rightly held that Lola Jacobs was the legitimate child of Dee E. Jacobs, deceased. The only testimony tending to show that she was not his child was the testimony of witnesses to the effect that Lola Jacobs resembled another young 'man who kept company with her mother and that he had equal opportunity with Dee E. Jacobs to have been the father of the child. No attempt was made to show any undue intimacy on the part of this young man with Lola Jacob’s mother or that they had even been engaged to marry. The law will not balance probabilities in this way.

Counsel for appellant also point to the fact that the father of Lola Jacobs’ mother swore out a warrant against Jacobs, before the latter’s marriage to the former’s daughter, charging Dee E. Jacobs with being the father of the unborn child. They insist that because of the arrest the rule should be changed. This court has held that, if a man seduces a woman and marries her through fear of the consequences of his crime, the marriage nevertheless will be valid and the child will be legitimate. Honnett v. Honnett, 33 Ark. 156; and Marvin v. Marvin, 52 Ark. 425.

Counsel for appellants contend for a reversal of the judgment under the provisions of section 2639 of Kirby’s Digest, which reads as follows:

“If a man have by a woman a child or children, and afterward shall intermarry with her, and shall recognize such children to be his, they shall he deemed and considered as legitimate.”

This section has no application to the present suit. It refers to cases where the children are horn before the marriage. In such cases there must be a recognition of the children after the marriage in order to make them legitimate. Rowland v. Taylor, 134 Ark. 183, and Swinney v. Klippert (Ky.), 50 S. W. 841.

The case turned upon the testimony of Lola Jacobs, and the circuit court properly held in her favor on this point.

It follows that the judgment will be affirmed.