79 Wis. 654 | Wis. | 1891
The material facts of this proceeding are as follows:
On the 20th day of Hovember, 1880, Telia M. Hurd was duly intermarried with one Andrew Ingle. On the 3d day of October, 1884, an action for divorce, on the grounds of
On the 19th day of April, 1888, the said Lelia M. Shuman died in Rock county, intestate, leaving surviving her two daughters, the said Frances M. Shuman, and Sarah Myrtle Shuman, who was born subsequently to the said Frances, and her husband, Alexander Shuman, the appellant. The said Lelia'M. Shuman, deceased, left personal estate valued at $40,000, and died seised of real estate valued, exclusive of her homestead at about $12,000. One Silas Hurd was appointed administrator of said estate by the county court of Rock county, and on final settlement of the estate the real estate -was assigned to the said Frances M. and Sarah Myrtle Shuman, in common, subject to the rights of said Alexander Shuman, as tenant by curtesjr, during his life, and the said Alexander Shuman, the appellant, entered into possession thereof. The respondent, John O. Hurd, was appointed the general guardian and guardian ad litem of the said Frances M. Shuman, who was an infant of five years of age. The said Frances M. Shuman and the said John G. Hurd were both ignorant of the entry of said order of as
It seems that the said Andrew Ingle, the first husband of the said Lelia M., is very wealthy and has large estates, and the said Frances M. is not only interested therein as his heir, but is vastly more interested in the question of her legitimacy as his child. The status of Andrew Ingle and Lelia M. Ingle as husband and wife was determined by the judgment of divorce, by which the bond of matrimony between them was dissolved. Willimns v. Williams, 63 Wis. 58. Frances M. was born about seven months after the divorce of the said Andrew and Lelia M. Ingle, and less than five months after her marriage with the appellant, Alexander Shuman. It is claimed by the learned counsel of the respondent that the conclusion is inevitable that Frances M. was begotten in the lawful wedlock of the said Lelia M. and Andrew Ingle, and that she is therefore his legitimate child. Her birth during the wedlock of Leliá M. 2sa.á-Alexander Shuman made her presumptively, only, the child of the said Alexander. It would require the clearest and most conclusive evidence of non-access between husband and wife to bastardize one of their children begotten and born during lawful wedlock, and there is no such evidence in this case to show non-access between Andrew and Lelia M. Ingle after their marriage, and before their divorce, so as to make Frances M. illegitimate, or to cast any suspicion on her legitimacy, and it is very doubtful if such evidence would be permitted for such a purpose. Although Frances M. was born during the lawful wedlock of Lelia M. and Alexander Shuman, and is presumptively their child and heir, the facts may overcome such a presumption, and show conclusively that she is not the child of Alexander
By the Court.—The order of the circuit court is affirmed.