83 Wis. 250 | Wis. | 1892
Sec. 2180, R. S., is as follows: “ The bus-band on the death of his wife shall hold the lands of which she died seised, and which were not disposed of by her last will and testament, for bis life, as tenant thereof by the curtesy: provided, that if the wife, at her death, shall leave issue by any former husband, to whom the estate might descend, such issue shall take the same, discharged from the right of the surviving husband to hold the same as tenant by the curtesy.” Hence, if Frances M. Shuman is the issue of the marriage of Andrew Ingle and Lelia M. Ingle, afterwards Shuman (as the circuit court found her tó be), the appellant, Alexander Shuman, is not entitled to curtesy in those lands of which Mrs. Shuman died seised, which descended to Frances M. On the other hand, if Andrew Ingle is not the father of Frances M., the presumption probably is that she is the daughter of Alexander Shuman, who, in that event, is entitled to curtesy in the lands which she inherits from her mother.
The rules of evidence by which it must be determined whether Frances M. is or is not the lawful issue of the marriage of her mother and Andrew Ingle are unaffected by the fact that she was born after the marriage of her mother and Alexander Shuman. The last marriage may save Frances M. from being a bastard in case Andrew Ingle is not her father; but the same proof is required to demonstrate that he is not her father as would be required had the last marriage not taken place, and were she claiming as heir of Ingle.
Before proceeding to the consideration of those rules, the
The usual and ordinary period of gestation is about 280 days. 2 Greenl. Ev. § 152. Andrew Ingle and Telia M., his wife, were divorced November 15, 1885, which was but 235 days before Frances M. was born. It becomes a verity in the case, therefore, that Frances M. was begotten while her mother was the wife of Andrew Ingle.
The old common-law rule in such cases was that the child of a married woman was conclusively presumed to be legitimate, if begotten while her husband was within the four seas, — - that is, within the jurisdiction of the king of England,— unless the husband was impotent. 1 Bish. Mar. & Div. § 546. This rigorous rule has been considerably modified by judicial decisions in later times. We find the modern rule (concerning which there is little or no controversy) well stated by Lord LaNgdale, M. R., in Hargrave v. Hargrave, 9 Beav. 552, as follows:
“ A child born of a married woman is, in the first instance, presumed to be legitimate. The presumption thus established by law is not to be rebutted by circumstances*255 which only create doubt and suspicion, but it may be wholly removed by proper and sufficient evidence, showing that the husband was (1) incompetent; (2) entirely absent, so as to have no intercourse or communication of any kind with the mother; (3) entirely absent at the period during which the child must, in the course of nature, have been begotten; or (4) only present under such circumstances as afford clear and satis factory proof that there was no sexual intercourse. Such evidence as this puts an end to the question, and establishes the illegitimacy of the child of a married woman.
“It is, however, very difficult to conclude against the legitimacy, in cases where there is no disability and where some society or communication is' continued between husband and wife during the time in question, so as to have afforded opportunities of sexual intercourse; and in cases where such opportunities have occurred, and in which any one of two or more men may have been the father, whatever probabilities may exist, no evidence can be admitted to show that any man other than the husband may have been, or probably was, the father of the wife’s child. Throughout the investigation the presumption in favor of the legitimacy is to have its weight and influence, and the evidence against it ought, as it has been justly said, to be strong, distinct, satisfactory, and conclusive.”
The circuit court found that during the three months next preceding November 15,1884 (the date of the divorce judgment), Andrew Ingle and his then wife, Lelia M., lived, boarded, and lodged in the same house, and during all that time had access to each other,— meaning, no doubt, opportunity for sexual intercourse. Does the evidence sustain this finding? The court rejected as inadmissible all testimony of the statements or admissions of Andrew and Lelia M. Ingle tending to show that they had no sexual intercourse with each other during the time within which it is possible that Frances M. was begotten. The ruling
It is clear that the complaint and the testimony of Andrew Ingle in his undefended action for a divorce, were properly excluded as evidence of non-access. These are nothing more than sworn statements of the husband, and their character is not changed by the fact that they were made in the course of a judicial proceeding which resulted in the dUorce judgment. Such judgment was admissible and was admitted to show the status of the parties to the action, that is, that they ceased to be husband and wife on November 15, 1884, but not to prove that a child begotten during the coverture is a bastard, or would have been such but for the subsequent intermarriage of her mother with Alexander Shuman. The letters of Lelia M. to her last husband were properly ruled out for the same reason; that is, they were mere admissions of the wife of the paternity of Frances M.
The testimony satisfactorily, if not conclusively, shows that Andrew Ingle and his then wife, Lelia M., for several months before, and down to the date of, the divorce judgment, resided constantly in the same house; conversed with each other; ate at the same table; lodged in adjoining rooms, with a door between them; and had, during all that
Some other errors are assigned upon the rulings of the court on objections to the admission of testimony, but none or all of these rulings are regarded as sufficient, even though erroneous, to work a reversal of the judgment. We have looked into these rulings, however, and are of the opinion that they involve no material errors. It is unnecessary to say more on the subject.
By the Oourt.— The judgment of the circuit court is affirmed.