The opinion of the court was delivered by
William Bull died in 1852, leaving by will a legacy amounting to $1704 in the hands of his executors, the defendants, W. H. Bull and Waring A. Bull, (the latter of whom has since died,) in trust for the use of his daughter, Lincey M. Burkett, during her natural life, and after her death to be equally divided among her children. The interest on this fund was regularly paid to Mrs. Burkett during her life. She died in August, 1874, leaving the plaintiff and another daughter, Dorcas, surviving her.
In September, after her death, the plaintiff instituted this ac
The cause at this stage was referred to T. B. Whaley, Esq., as special referee, “ to hear and determine the issues therein.”
The referee found as matter of fact: 1. “That the sum of $1704 came into the hands of the executors of William Bull, as alleged in the complaint.
2. “ That Lincey M. Burkett, the life tenant, died August 12th, 1874, leaving two children, Dorcas E. Griffin and the plaintiff surviving her.
3. “ That the plaintiff was born in 1843 while her mother lived with one Andrew Keller on the premises of P. N. Hart.
4. “ That the plaintiff united with her husband, sister and mother in the execution of the release, but without due information or knowledge of her rights.
5. “ That Waring A. Bull died since the commencement of this action.”
He found as matter of law : 1. “ That plaintiff is entitled to one moiety of the fund with interest, thereon from August 12th, 1874.
2. “ That plaintiff is not bound or estopped by the release..
3. “ He adjudged and ordered that defendant pay the plaintiff the sum of $1157.65 and the costs,” submitting with his report the testimony. ■
To this report of the referee the defendant excepted, assigning as error : 1. That the referee did not report as to the investments by the executor of the trust funds in Confederate currency during' the war.
2. That he did not report as to the legitimacy of the plaintiff; and
3. That he erred in reporting that plaintiff executed the release without due information and knowledge of her rights, and that she was not estopped thereby.
Judge Thomson decided that the exceptions of defendant as to the illegitimacy of plaintiff and as to the release be overruled, and that the case be remanded to the referee for an accounting between the parties; upon which accounting he directed that the question of investment in Confederate currency by the executors be considered.
The defendant appealed from this decree upon the following grounds:
1. “ Because his Honor erred in finding that plaintiff is the legitimate child of Lincey M. Burkett and entitled to take under the will of William Bull. -
2. “ Because his Honor erred in finding the release no defence or bar to the present action.”
For the proper adjudication of the questions raised it is not necessary for this court to express any opinion as to the paternity of the plaintiff.
Pater est quem nuptice demonstrant is the general rule, and ordinarily, as was well said by Judge Thomson, “ reasons of policy, public decency and the peace of families require the observance of this principle.” But while this is true as a general rule, and was formerly adhered to with considerable strictness, yet it has undergone some change and relaxation, and now evidence may be introduced to overcome the presumption arising from marriage
Shakespeare in his drama of King John, act I., scene 1, gives us a trial before the Aula Regis, the king himself being present in person, Fitz-Peter being chief justiciar, in a “ legitimacy case ” as it was called, which involved the legitimacy of one who was said to be the illegitimate son of Richard Coeur de Lion. In that trial the doctrine pater est quem, subject, however, to the exception of the absence of the husband extra quartuor maria, was contended for, and Lady Fauconbridge having remained in England while her husband was employed in Germany, the- defendant was found illegitimate, much stress being given to the testimony of Dowager Queen Eleanor, who declared that the defendant had a “ trick of Coeur de Lion’s face,” and that “ she read in his com
Judge Thomson ruled as matter of law, in substance, that nothing short of proof of impossibility of access could overthrow the presumption arising from marriage, and he based his decree upon the fact that the evidence did not show that this impossibility existed in this case.
We think that Judge Thomson .contracted the principle applicable to such cases within too narrow a boundary, and in endeavoring to solve correctly the delicate question of fact which was before him, he applied an incorrect principle of law. The law as it now stands is : That a question of paternity is in itself a question of fact, to be determined like any other question of fact — by testimony, the principle pater est quem nuptice demons-trant having its full influence, subject, however, to such competent evidence as in the judgment of the jury may be sufficient to overthrow it; and this may be done by proof other than impossibility of access. It may be done by showing non-access, or any other facts which may satisfy the minds of the jury.
True, out of regard to the sacred interest involved in the marriage relation, the happiness and reputation of families, the character of children, and the public peace, evidence of this character should be watched with great care and admitted with great caution by the courts ; but such testimony is competent, and, when admitted, is entitled to be considered.
Judge Thomson in his decree said : “ Is the proof of non-access of the husband so complete that Z. Burkett could not have been the father of the plaintiff? Though undoubtedly strong, the proof does not seem of that conclusive kind required in such cases — proof that there could not have been access of the husband In the absence of this proof, and on account of its absence he found as matter of fact that plaintiff was legitimate.
In State v. Shumpert, 1 S. C. 87, Moses, C. J., quoting from 2 Greenl. on Ev. 125, said : “ A- child born during cover-ture is presumed to be legitimate; proof of non-access, or any
Under the force of these authorities, without going into the question whether in this case the evidence was sufficient to establish the illegitimacy of the plaintiff, we think that Judge Thomson reached his conclusion upon this question of fact by the light of a principle which he incorrectly applied as a principle of law, and in’ this respect that he erred.
The next question is as to the effect of the release. The referee found as matter of fact that the plaintiff executed the release without due information or knowledge of her rights. In this finding Judge Thomson concurred, and he held the release to be no defence or bar to this suit.
From the view which we take of this case it is not necessary to determine whether this finding is fully sustained by the weight of the evidence, or whether the evident preponderance is the other way. The release here was not only executed by the plaintiff, but it was also executed by her husband. They signed it at the same time. There is no evidence in the case, nor is there any finding either by the referee or the judge as to the information of the husband as to the matters intended to be settled by the release. In the absence of all proof on that subject we must take it for granted that he at least underfsood what he was doing, and while no judgment of the court, in his absence as a
Now, what interest did the plaintiff take under the will of her grandfather in the legacy in question ? and what effect did the release, executed by her husband, with full understanding as to its purport and effect, have upon that interest ?
The will is not set out in the case, but in the complaint it is stated that William Bull died in 1852; that he directed, inter alia, that the legacy should be held by his executors in trust for the use of his daughter during her natural life, and after her death to be equally divided among her children. At the time of the execution of this will the plaintiff was near ten years of age; her sister, Dorcas, had also been born. The will-was made, no doubt, with the knowledge of these facts on the part of this old man, and these grandchildren of his were in all probability especial objects of his bounty. They took a vested remainder in the legacy given to their mother for life. This vested remainder was in personal property, and the interest of the plaintiff was personal estate. To what extent did the marital rights of the husband attach to this interest, is the important question now to be considered. William Bull, the grandfather, died years before the adoption of the constitution of 1868. At that time the marital rights of the husband did not only attach to all personal property in the possession of the wife at the time of the marriage, but authorized him to reduce to possession all such as rested in action, or had not been reduced to possession by the wife.
The interest of the wife here was a chose in action, her title being complete, but the payment postponed to the death of her mother. In some respects it was like a note or bond, due at a future day. Did the husband have the right to assign or release this future payment upon a present consideration? Was his assignment and release such a reduction to possession as his marital rights authorized and empowered him to make of the personal estate of his wife ?
At first, in this state, the right of the husband to assign the interests of the wife, not in possession, seemed to depend upon the fact whether the interest in question was vested or contin
• Other cases since have recognized this principle, but this does not touch the question here. It decides that there can be no merger of the remainder of the wife by the husband obtaining the particular estate upon which it depends. In such case the remainder will still exist as the right of the wife. But the doctrine of merger is not involved in this case.
In Reese v. Holmes, 5 Rich. Eq. 562, Chancellor Johnstone, who delivered the opinion in the case of Terry v. Brunson, supra, in a very elaborate and full discussion of all the cases upon this subject, both in England and in this state, it a circuit decree which was adopted as the opinion of the Appeal Court, announced the conclusion to be : “ That neither the husband nor the wife alone, nor the husband and wife acting jointly, have the power during coverture, without the sanction of the court, to assign the wife’s vested remainder in slaves expectant upon the termination of a life estate therein, so as to defeat the right of the wife to the remainder when it falls in, should the husband then be dead; should the husband be alive when the remainder falls in, and he then have the right to reduce it to possession, his previous assignment will, it seems, hold good.” Chancellor'Johnstone, with that earnest desire always to be right, which was a beautiful and prominent trait in his character, and with that frankness which characterized all his judicial utterances, in the discusson of this case admitted that his language in the case of Terry v. Brunson had not been sufficiently guarded, and that his meaning was loosely and inaccurately expressed. He says that the words
,In Duke v. Palmer, 10 Rich. Eq. 380, following the case of Reese v. Holmes, supra, it was held that where the wife has an expectant interest in chattels, though a transfer or concurrence in the transfer of her interest by herself and husband will not bind her if she be the survivor when the expectancy falls in, yet if, at that time, they both be living, and he be capable of reducing the expectancy to possession, they will both be bound by the transfer. This appears to be the law in this state, as held in several [cases cited in Reese v. Holmes and Dulce v. Palmer, supra.
Now, in this case the husband aud wife were both alive at the falling in of the estate of the life tenant. Is there anything to prevent the principle held in these cases from applying ? Section 8, Article XIV. of the constitution of 1868, in reference to the rights of married women, is relied upon. The life estate fell in after the adoption of the constitution, and it is contended that the plaintiff being at that time entitled to the possession of this legacy, and not until then, she was entitled to it free from the marital rights of her husband.
As we have seen, the interest of the plaintiff in the legacy was a vested remainder, the title to which passed to her at the death of her grandfather. It was in her when she married and during cover-ture. Upon this vested title the marital rights of her husband attached, at least so far as to give him the right to reduce the property into possession if it should fall in at any time during coverture; and in addition to this, as held in the cases of Beese v. Holmes and Duke v. Palmer, he had the right to contract with reference to this interest of his wife, whether it was a vested or contingent interest, subject to the peril only of his wife being the survivor at the time when this interest should fall in. This being so, to subject his contract now to a new condition and a new peril, by virtue of subsequent legislation, either by legislative enactments or constitutional provisions, would be in violation of well-established principles. A state can no more impair an existing contract by a constitutional provision than by an act
The right to reduce to possession this expectancy was one of the rights embraced in the jure mariti when this plaintiff married. This right had vested in D. B. Shuler, the husband, before the adoption of the constitution of 1868. This capacity to act under this right attached and became complete upon the marriage. Now, without undertaking to speculate as to the manner in which this capacity might have been lost before the falling in of the expectancy, it is enough to say that in our opinion the constitution of 1868 did not, and could not legally create such incapacity. This would be divesting vested rights. We think that the release set up as a defence in this case having been executed by the husband, and there being no proof or allegation that he was without due knowledge and information, it should have been held as a bar to this action.
The judgment of this court is that the judgment of the Circuit Court be reversed.