151 A. 820 | N.H. | 1930
The record presents the question of the competency and sufficiency of the evidence received in proof of the plaintiff's illegitimacy.
Under the older common law, every child born of a married woman was presumed to be legitimate, unless the husband was impotent or had been beyond the "four seas" during the possible period of gestation. 5 Wig., Ev. 2527. This presumption was conclusive and evidence to the contrary was inadmissible. Ib; 33 Harv. Law Rev. 306. This adamant rule early gave way to a more liberal doctrine which permitted other proof of the want of access of the husband to the mother during the time when by the course of nature he could have been the father of the child. In re Banbury Peerage, 1 Sim. Stu. 153, 154; Phillips v. Allen, 2 Allen 453, 454.; Thayer, Prelim. Treat. Ev. 540.
While cases are to be found which hold that under the liberalized doctrine there must still be proof "that procreation by the husband was impossible" (Bullock v. Knox,
A greater difference of judicial opinion, however, is apparent upon *417
the question of what constitutes such "sufficient evidence" or "clear and satisfactory proof" of non-access, or more succinctly, as respects the degree of persuasion required. Although there are authorities to the contrary (Wright v. Hicks,
The English cases, most commonly cited in support of the modern doctrine are: In re Banbury Peerage Case, 1 Sim. Stu. 153, 158; Head v. Head, 1 Sim. Stu. 150, 151; and Morris v. Davis, 5 Clark Finnelly 163, 215. In the latter the court interprets the earlier cases as holding that to overcome the presumption the evidence must be "such as to exclude all doubt; that is, of course, all reasonable doubt in the minds of the Court or jury, to whom that question is submitted." It seems clear that the standard adopted in these cases is understood by the English courts to be the same as that required to rebut the presumption of innocence, namely, proof beyond "all . . . reasonable doubt." Plowes v. Bossey, 31 L. J. Ch. 681, 682; Atchley *418
v. Sprigg, 33 L. J. Ch. 345, 348; State v. Shaw,
The question of the degree of persuasion required to overcome the presumption of legitimacy has not before arisen in this jurisdiction, nor is it now necessary to lay down a rule which will control in all cases. Whatever degree of proof is required, the evidence here is sufficient under the modern doctrine, in whatever words it may be phrased, to support a finding that the plaintiff is not Edward's child.
Netilla was between ten and eleven years of age at the birth of the plaintiff and lived with her mother at her grandmother's house during the period of possible gestation. Her evidence was in effect that her parents had ceased to live together five years previous to the plaintiff's birth, never thereafter lived together or had anything to do with each other, and that, after the separation, the father did not live near her mother or come to their home. That the mother may have clandestinely met him elsewhere is but a remote possibility.
In view of the fact that the plaintiff's birth occurred six years after the separation, and within six months of the time the mother entered the household of another man to whom she was later unlawfully married and whose name the plaintiff took, the uncontradicted testimony of Netilla, who is found to be worthy of credit, affords an adequate basis under the extreme requirements of any modern test, for a finding that the husband had no access to the mother during the period of gestation. The ruling that it was sufficient to overcome the presumption of legitimacy is therefore sustained.
As the case is understood, the court has found, independently of and excluding Edward's declarations, and solely from Netilla's testimony of Edward's absence during the period of gestation and the corroborating circumstances, that the plaintiff is not his child. It therefore becomes unnecessary to decide the question discussed at length by counsel as to the admissibility of the declarations (Melvin v. Melvin,
Consonant to the record the order here must be
Plaintiff's petition dismissed.
All concurred.