Ray Ex Rel. Gudger v. Ray
13 S.E.2d 224
N.C.
1941
Check Treatment
BabNhill, J.

Under the old English or common law rule a child born of a married woman was presumed legitimate unless the husband was shown to be impotent or not within the four seas — that is, he was conclusively presumed to be legitimate so long as there remained a possibility that the husband was the father. The presumption could not be rebutted if the husband was capable of procreation and was within the four seas during the period of gestation. S. v. Pettaway, 10 N. C., 623; Woodward v. Blue, 107 N. C., 407; S. v. Liles, 134 N. C., 735; Ewell v. Ewell, 163 N. C., 233, 79 S. E., 509; West v. Redmond, 171 N. C., 742, 88 S. E., 341; S. v. Green, 210 N. C., 162, 185 S. E., 670. Put this rather harsh rule has been tempered by the application of a degree of common sense, so that now access or nonaccess of the husband is a fact to be established by proper proof. The question of legitimacy or illegitimacy of the child of a married woman, under the prevailing rule, rests on proof as to the nonaccess of the husband and the evidence in respect thereto must be left to the jury for determination. If there was access in fact then, now, as formerly, there is a conclusive presumption that the child was lawfully begotten in wedlock. “If a husband have access, and others at the same time are carrying on a criminal intimacy with his wife, a child born under such circumstances is legitimate in the eye of the law.” Cope v. Cope, 5 Car. & P., 604.

This modification of the common law rule was first indicated in Pendrell v. Pendrell, Stra. 925, and the Banbury Peerage Case in the House of Lords, 1 Sim & Stuart, 153, and is now consistently applied. Woodward v. Blue, supra; S. v. Pettaway, supra; S. v. Liles, supra; Ewell v. Ewell, supra; West v. Redmond, supra; S. v. McDowell, 101 N. C., 734; S. v. Green, supra; Sehouler Dom. Eelations, sec. 225.

The wife is not a competent witness to prove the nonaccess of the husband, S. v. Pettaway, supra; S. v. Wilson, 32 N. C., 131; S. v. Green, supra; S. v. McDowell, supra; Ewell v. Eiuell, supra; West v. *220 Redmond, supra; nor may such be shown by evidence of declarations of the wife. Ewell v. Ewell, supra; West v. Redmond, supra (citing many authorities). Her testimony and declarations are excluded not only as violative of the confidential relations existing between husband and wife but pursuant to a sound public policy which prohibits the parent from bastardizing her own issue. However, she is permitted to testify as to the illicit relations in actions directly involving the parentage of the child, for in such cases,, proof thereof frequently would be an impossibility except through the testimony of the woman. S. v. Pettaway, supra; S. v. Wilson, supra; S. v. McDowell, supra.

That the wife is notoriously living in open adultery is a potent circumstance tending to show nonaccess. “But if the husband and wife are living separate, and the wife is notoriously living in open adultery, although the husband have an opportunity of access, it would be monstrous to suppose that, under these circumstances, he would avail himself of such opportunity.” Cope v. Cope, supra; Woodward v. Blue, supra; Ewell v. Ewell, supra; S. v. Green, supra.

Applying these principles, there was ample evidence offered to repel the defendant’s motion for judgment as of nonsuit. When considered in the light most favorable to the plaintiff this testimony tends to show that his mother separated herself from her husband at the solicitation of the defendant; that she thereafter lived in open adultery with the defendant for a period of two years, including the time when plaintiff was begottén; that the husband was living elsewhere and was not seen in the community where plaintiff’s mother was living and did not have access to her. In addition thereto there is the written contract, which was competent and which should have been admitted. It is in the nature of an admission by the defendant. That it may tend indirectly to show declarations of the mother is not sufficient to justify its exclusion. This aspect of the evidence can be guarded against by proper instruction.

The judgment below is

Reversed.