13 Iowa 198 | Iowa | 1862
Linus Niles was born in 1811. Sanford Niles married Susan Spooner some two years afterwards, and about the same time Polly married Jonathan Sprague. Linus died in October, 1853; Sanford, in November, 1818; Polly, in February, 1852. It is admitted that Sanford always recognized plaintiffs as his children, and that this recognition was general and notorious.
It will be observed that the material inquiry in this case is, whether Linus was the son of Sanford; and connected with this, and important to its determination, the further question whether Sanford and the mother, Polly, were ever married. And here we reverse the usual order in determining cases, by taking up, first, the motion for a new trial, so far as it applies to the verdict of the jury upon these facts.
The case was tried three times. There is a great amount of testimony on either side, bearing upon the question of parentage. It is all before us. We have carefully examined it, and do not believe the jury erred in their conclusion. If the verdict had been otherwise, we would not have been justified in interfering. The case, upon this matter of fact, is not free from difficulty; but the weight of all the facts and circumstances we think preponderates in favor of defendants’ position. The plaintiffs affirm. The burden of proof is upon them. If in this they fail, or if the testimony does not preponderate either way, defendants are entitled to a verdict. Aside from the conflicting evidence which relates to the fact of marriage, or that which bears upon the paternity of Linus, there are some undisputed facts which tend strongly to support this finding. The parents of these parties all lived in the same neighborhood in 1811, and for some years afterward. Linus was born some few months (three or four) after the alleged marriage between Sanford Niles and his mother. Within a year or
Before examining these, however, we will consider whether the court erred in excluding a certificate.of marriage offered by plaintiffs. This point is not urged with any confidence by appellants, and it needs no .more than a passing notice. An exemplification of a copy of a record is riot sufficient under the act of Congress relating to this subject. If the marriage was solemnized, then, under the laws of Ohio, where the marriage took place, it is required that a certificate
The court, after passing upon the instructions asked by the parties, told the jury that the case had been twice tried, and that it was important that they should agree, if they could satisfy their minds as to the right of the case between the parties. To this suggestion plaintiffs excepted, and now assign the same for error. To this action or remark we can see no just ground of objection. If improper, it was as much so to defendants as to plaintiffs. But it was so to neither. It was not only the right, but the duty of the court, to remind the jury of the protracted litigation, and of the necessity on their part to labor honestly and faithfully to arrive at a verdict, and thus terminate a controversy which time only tended to make more expensive and embittered. There was no intimation as to how they should decide, but a general remark that they ought to agree, if they could satisfy their minds, as to the right of the unpleasant controversy. And this same thought would have occurred reasonably and properly to any intelligent person, without this suggestion from the court.
' The fifteen instructions asked by plaintiffs were given, as well as most of those asked by defendants. These present the law applicable to the facts of the case as claimed by the respective parties, very fully and clearly. Some of those asked by defendants are assigned for error, and these we proceed to notice.
Instruction number three was as follows: “ The plaintiffs, in order to inherit the property in controversy, must not
As to the other point there is more doubt. This instruction, however, is to be taken in connection with all the others. The law is that the child is presumed to be legitimate, though born but a short time after marriage. If born during wedlock, the law presumes legitimacy. If the marriage is voidable, merely, it remains valid until annulled by proper proceedings. The issue of such a marriage are legitimate, and they cannot be bastardized in a collateral proceeding of this character, by showing that the marriage was voidable. And under the law of Ohio, in force at the time of the alleged marriage of these parties, though the marriage was null and void, the issue was not illegitimate. The law, as thus briefly stated, was very fully
Another instruction objected to, is tbis: “Slight evidence of a reputed relationship between Sanford Niles and said Linus, although the same may be accompanied with acknowledgments that said Linus was his son, are not sufficient to establish the heirship of plaintiffs without further deductions of pedigree; and if the jury are satisfied that the evidence shows nothing further than such reputed
The connection between the “ qualification,” and the instruction as asked, is not readily perceived. And yet, as we view them, neither are erroneous. There is certainly no improper rule affirmed. The only chance for error is by inferring that they mean more or something different from what is stated. We do not understand the instruction to say that there was only “ slight evidence” of the reputed relationship, but that such evidence, (if there was no more,) although accompanied, &c., would not be sufficient to establish the heirship of plaintiff. Nor would it. For if there was no marriage between the father and mother, plaintiffs could, not inherit, whatever the evidence of relationship, and paternal acknowledgments. True, the presumption is in favor of the legitimacy • of the child. True, also, that the marriage might be shown by cohabitation, the conduct and acknowledgment of the parties, common reputation, the testimony of those present at the ceremony, as well as by the record. But these are matters not touched by the instruction. The modification certainly is good law, — for if all the facts should concur, therein supposed, there would remain but little doubt of the legitimacy of the offspring. If the parties were married, Linus was born during wedlock, and they recognized him as their child, we should truly have convincing evidence that Linus was the son of Sanford. But this does not assert that such recognition was necessary to prove his legitimacy. If it
The next and last instruction complained of, is this: “The declaration of Sanford Niles and Mary or Polly Ferguson, are competent to establish the legitimacy or illegitimacy of Linus Niles, and such proof is competent to bastardize said Linus so far as the same tends to show that the said Sanford and Polly were never lawfully married ; and if the jury believe from the evidence and the declarations of the said Sanford and Polly that they were never lawfully married, they will find for defendants.”
If this instruction is to be understood as asserting the broad doctrine, that such declarations are competent to bastardize the issue, then upon authority we should regard it erroneous. Such evidence is held incompetent upon grounds of public policy (11 East., 132; 5 A. & E., 180), or, as Lord Mansfield says (Cowp., 594), “ it is a rule, founded in decency, morality and policy, that the husband and wife shall not be permitted to say after marriage that they have had no connection, and therefore that the offspring is spurious.” He is here speaking, however, of post-nuptial intercourse, and the rule has more particular application to those cases where, the marriage being undisputed, it is proposed by such declarations to establish the non-access of the husband. In the case before us, the capital fact to be established, is the marriage. The declarations of the mother and putative father, introduced in evidence, had reference to or bear upon that fact. And having reference to this testimony, and looking to the whole of the instruction, while it might possibly be mis
As thus understood, we think it was correct. It must be remembered that the testimony tends almost conclusively to show that Sanford and Polly never lived together, never recoginzed each other as husband and wife. The case is not one, therefore, where parties have lived together for years, treating each other as husband and wife, and where afterwards it is sought to bastardize their issue, by proving their declarations that they were never lawfully married. This child was begotten before, but born after, the alleged marriage. The question to be determined is one of inheritance. If there was a marriage, as claimed by plaintiffs, then the presumption is that Sanford was the father of Linus. But it is a presumption which is not conclusive, and which it is entirely competent to rebut. To obtain a predicate upon which to base this presumption, it was essential to establish the marriage. And we can see no reason, as bearing upon the pivotal point, why the declarations of the mother and putative father, made about and after the birth of the child, are not receivable, even if the effect should be to show the illegitimacy. And as applied to this case, this view finds much to sustain it from the consideration, that if Sanford and Polly were married, then they both violated every law of “decency, morality and policy,” when they afterwards entered' into the same relation, the one with Susan Spooner, and the other with Jonathan Sprague. And under such circumstances will such laws be more violated by receiving declarations which recognize the validity of these subsequent marriages, or those which convict them of a gross disregard of the proprieties of enlightened, Christian society, an entire indifference to the condition of the several children born to them during the admitted wedlock of each, and an utter contempt for the
Affirmed; ^