Janes's Estate, 147 Pa. 527

Janes's Estate

147 Pa. 527 | Pa. | 1892

Opinion by

Mb.. Justice McCollum,

The single question presented by this appeal is whether Bruce McDonald, to whose widow and children a portion of the fund for distribution was awarded, was the legitimate son of John McDonald, who was a brother of the decedent. It is a question of fact to be answered on the evidence. It was conceded by the learned judge of the court below that a negative answer must be returned if the deposition of the mother can be considered in solving it. He thought, however, that this deposition was incompetent, and he refused to allow it any influence in the decision of the question, on the ground that a mother cannot, by her own evidence, bastardize her issue. A presumption of legitimacy attaches to birth in wedlock, and it cannot be rebutted by the testimony of the mother or of her husband. It may be overcome by proof of non-access of the husband, but they are not competent to establish it. The proof must come from another source. But the mother is competent to prove the fact and time of her marriage, and when her child was born. The rule on this subject is thus stated in Greenleaf on Ev., vol. 2, § 151: “ The husband and wife are alike incompetent witnesses to prove the fact of non-access -while they lived together. But they are competent to testify in cases between1 third parties as to the time of their own marriage, the time of the child’s birth, the fact of access, and any other independent facts affecting the question of legitimacy.” In Taylor on Ev. 817, the learned author, referring to the same subject, says: “ But this rule does not prevent the parents from proving that the supposed marriage was either invalid or valid, or that their children were born before or after its celebration, though the effect of such evidence is, in the first and third case, to bastardize the issue, and in the others to establish its legitimacy. For this purpose, too, their declarations, or their old answers in chancery, are admissible evidence.” An examination of the decisions on the point under consideration discloses the fact that they are in entire accord with the rule as above stated. *531Among our own cases, in which it is distinctly recognized and applied, are Dennison v. Page, 29 Pa. 420; Kleinert v. Ehlers, 38 Pa,. 439, and Tioga County v. South Creek Township, 75 Pa. 433. A child born or begotten in wedlock is presumed to be legitimate, and neither the mother nor her husband can bastardize it by testifying to non-access. It seems, however, that if there is competent evidence which tends strongly to prove that the husband had no sexual intercourse with the wife at the period of conception, their acts and declarations, at the birth of the child and subsequently, may be received as corroborative of it: Dennison v. Page, supra, and cases cited. In Commonwealth v. Shepherd, 6 Binney, 283, which was a prosecution for fornication and bastardy, a married woman was permitted to testify that the defendant had criminal intercourse with her, and was the father of her child, born in wedlock, there being sufficient evidence to show non-access of the husband at the time it was begotten. We think it is clear, in the light of the authorities, that the deposition of Bruce McDonald’s mother was competent, and should have been received and considered in the decision of the case. From it we learn that she was married to John McDonald on June 11, 1824, at Tullyallan Kincardine-on-Forth, by Andrew Bulloch, minister of the parish; that soon thereafter they removed to Falkirk, where they resided until his death, in May, 1874; that Bruce was born “ eleven or twelve years ” before her marriage, and that his father’s name was Doeherty. As to her marriage,- she is corroborated by the certificate of the session’s clerk of Tullyallan parish, and by the certificate of the minister; as to the time of their removal to Falkirk, by the testimony of disinterested witnesses, who knew and lived near to them during their residence of fifty years there; as to the time when Bruce was born, by witnesses who knew him well, and testified to his age, and as to his paternity, by the evidence of her own and John McDonald’s declarations, and the reputation in the family and neighborhood, concerning it. In answer to all this testimony, we have the unsupported and bald assertion of the appellee, who is the daughter of Bruce McDonald, that her father was a legitimate son of John McDonald. It is not sufficient to prevail against the direct proof and its corroborations to the contrary. As Bruce McDonald was born before the marriage of *532his mother, he was a bastard. It may be that the subsequent marriage of his putative father to his mother would have legitimated him, under the laws of Scotland. But there is no proof that John McDonald was his father, and there is no presumption that the man who marries the mother of a bastard child is the father of it. It is provided by our act of May 14, 1857, P. L. 507, that “ where the father and mother of an illegitimate child or children shall enter into the bonds of lawful wedlock and cohabit, such child or children shall thereby become legitimated,” and this is substantially in accord with the Scotch law, and with enactments elsewhere, which have for their object the legitimation of bastards by the subsequent marriage of their parents. It is clearly and satisfactorily shown by competent evidence that Bruce McDonald was an illegitimate son of one Docherty, and we are not aware of any law which invested him with the rights of a legitimate son and heir of John McDonald. It follows from what has been said, that the learned judge erred in awarding to his representatives one fourth of the sum to which the heirs of John McDonald were entitled. It belonged to the parties to whom the remaining three fourths of it were awarded.

- Decree reversed at the costs of the appellee, and it is ordered that the record be remitted to the court below, with directions to enter a decree in accordance with this opinion.