Wilson v. Babb

18 S.C. 59 | S.C. | 1882

The opinion of the court was delivered by

■ Mr. Chief Justice Simpson.

Josiah Newton Bolling died intestate in 18 — , seized and possessed of certain real estate situate in Laurens county. He left a widow, but no lineal descendants. The plaintiffs commenced this action for the partition of his lands, claiming to be heirs-at-law with the widow. Their right to this partition involved the question of the legitimacy of the deceased. During the pendency of the action, the widow died, and the present defendants were made parties as her heirs-at-law. Considerable testimony was taken, whether orally before the Circuit judge, or before some officer of the court, does not appear in the brief.' It was taken, however, and is set out in full.

Judge Fraser, who heard the case, found, as matter of fact, that the deceased was the illegitimate child of Lucinda Johnson, the mother of the plaintiffs, and, upon this finding, he dismissed the complaint with costs. The plaintiffs have appealed, and the question which the appeal requires us to consider is, whether the judge erred in this finding. The case before us is a case in chancery, and is embraced within the appellate jurisdiction of this court, so that, although the appeal involved a question of fact almost entirely, yet it is within our cognizance, subject to the principles heretofore decided as to such appeals.

A legitimate child is he that is born in lawful wedlock, or within a competent time afterwards. 1 Blacks. Com. 367. “Pater est quern nuptiae demonstrará” is'the rule in the civil law, says Mr. Blackstone, and this holds with the civilians, whether the nuptials happens before or after the birth of the child. In England, and in this country, however, the nuptials must be precedent to the birth, and while a post-nuptial birth is not conclusive upon the question of legitimacy, yet it raises a presumption which will stand until overthrown by sufficient and competent testimony. At one time, in the early history of such cases, nothing short of proof of impossibility of access, on the part of the husband, was regarded as sufficient to destroy this presumption. But such is not the law now. It now stands as any other question of fact, resting upon the testimony for and against it. Shuler v. Bull, 15 S. C. 421, and the cases there cited; State v. Shumpert, 1 S. C. 85.

While a legitimate child is one bom in lawful wedlock, and a bastard is one begotten and born out of lawful wedlock, yet it does not follow that every child born in lawful wedlock is legitimate, nor does it require one to be both begotten and born out of lawful wedlock to be a bastard. The true test is whether the husband of the woman who gives birth to the child is its father; and this must, of necessity, in every case, be a question of fact. Where the child is born after lawful wedlock, and after the lapse of the usual period of gestation, it should require a very strong state of circumstances to overthrow the presumption of legitimacy, such as impossibility of access, absolute non-access, abandonment, or something equally as conclusive. But where the birth is so soon after the marriage as to render it certain, according to the laws of nature, that the child could not have been begotten during the wedlock, then it is more of an open question, depending on the weight of the testimony, aided in favor of the legitimacy, somewhat, by the marriage, but, perhaps, not to the extent of requiring such strong opposing evidence as in other cases. In every case, however, the question is still one of fact, to be determined in each special case by the principles hereinabove stated : to be administered and applied by the courts with a cautious regard to the peace of society and the happiness and reputation of families.

Judge Fraser, after a careful consideration of the testimony submitted to him, came to the conclusion that the deceased was illegitimate, and refusing the claim of those who never recognized their now alleged relationship to the deceased until after his death, and his property had become subject to partition, turned the property over to the heir of his widow, who, notwithstanding his bar sinister, had, in the face of it, and against all attendant reproach, united her destiny with his in early life, and had stood by him until his death. There is some justice in this result at least. But the question for this court to determine is, whether the decree of Judge Fraser can stand.

The first ground of appeal claims that J. N. Bolling, having been born of the wife of James Johnson after marriage, the law requires said Bolling to be considered and treated in the distribution of his estate as a child of James Johnson until the contrary be established by competent testimony, which must be either — First, impotency of the husband;’ Second, impossibility of access between husband and wife; or, Third, birth of the child during or within a competent time after the mother’s cohabitation with some other man than her husband. It is true that birth during lawful wedlock presumes legitimacy which will stand until the contrary be established by lawful testimony; and if this ground had stopped at the first paragraph it would have been unobjectionable. But we know of no law which requires the proof of either one or all of the facts mentioned in the specifications as indispensable to the overthrow of this presumption. Either one of these facts will certainly have that effect; but there is no authority for saying that they are indispensable, one or all.

We have examined the cases relied upon by the appellants, and have- extracted from them the principles as laid down above. In most of these cases the birth of the child took place during the coverture and within a competent time thereafter for the husband to have been the father during said coverture; and even in those cases, the presumption was not regarded as conclusive. Nor did they indispensably require the presence of the facts mentioned in this ground to overthrow it. The rules established in the Banbury Peerage Case, 1 Sim. & S. 153, were in reference to questions applicable to cases of a like character to those above referred to. These rules hold the presumption rebuttable by such facts and circumstances as are sufficient to prove to the satisfaction of the jury that no sexual intercourse took place between the husband and wife at a time when, by such intercourse, the husband, by the laws of nature, could be the father of such child.

The true doctrine, sustained by'all of these cases, is found in 1 Phil. Pm. (C. & S.’s notes) 630, where he says: “ If a child be born after the marriage of the mother and during the husband’s life, it is presumed to be legitimate. It was formerly an -established doctrine of the courts that this presumption in favor of legitimacy could not be rebutted, unless, the husband was incapable of procreation, as from impotency, or old age, or was absent beyond the seas during the whole'period of the wife’s pregnancy. This doctrine was not, however, conformable to the more ancient legal authorities, but in later times it came to be established that the presumption in favor of legitimacy of the child of a married woman might be rebutted if it were shown that the husband had not opportunity for sexual intercourse within such a period of time before the birth of the child as would admit of his being the father. And', in the present day, even where a husband and wife have had opportunities for sexual intercourse at a time when the husband might have become the father of the child, a court and jury are at liberty to infer from all the circumstances of the case that no sexual intercourse took place. But when a jury believes that sexual intercourse took place between husband and wife at a time when it might have led to the conception of the child whose legitimacy is disputed, it would seem that they ought not to find the child a bastard. If, however, there was an opportunity of access, though the wife was notoriously living in adultery, it does not necessarily follow that the child is not legitimate.”

These principles, as it appears from the terms employed by Mr. Phillips, were intended to apply to cases of adulterine bastardy, and their effect is to throw the protection of a very strong presumption in such cases around the legitimacy — so strong as to cast the burden of destroying it on the party impeaching it; which, however, when assumed, may be done by any competent testimony sufficient to satisfy the mind of the tribunal before whom the question is made, to the contrary. This certainly is the" law in this State since the cases of the State v. Shumpert and Shuler v. Bull, supra.

Whether this protecting principle applies as strongly to ante-nuptial conception and birth afterwards, as in this case, the authorities are not very definite. In the case of Wright v. Hix, 12 Geo. 162, Judge Lumpkin thought it applied whether the bastardy originated before or during the marriage. “ If a man,” says he, “ marries a woman pregnant by another person, the law presumes the child to be the husband’s; and whether she was at the time a reputed virgin or grossment enceinte, the books make no difference. In both cases the law sayS, presumably, it is his child; still he may show, by whatever proof he may command, that he has been made the innocent- victim of fraud and artifice. And the same proof may be adduced by any one whose interest and right it is to contest the legitimacy of the pretender; and inexpressibly hard would it be if such privilege was not allowed.” But whatever doubt there may be as to where the burden of proof lies in any case, the authorities are uniform as to the character of the evidence which may be submitted. Any competent testimony bearing upon the question is admissible, and, if it satisfies the mind, it is sufficient.

Now, how does Judge Fraser’s finding of fact stand when examined by the light of these principles and tested by the rules heretofore established as to appeals involving questions of fact in .chancery cases ? Is there an absence of all testimony to sustain that finding? Or, even, is the manifest weight of the testimony against it? We think both of these questions should be answered in the negative. We find, in the decree, the substance of the testimony stated in a condensed form, and presented so as to show its full force. It is as follows: [Here follows the statement of the evidence contained in the Circuit decree, sxvprai] It was further in testimony that James Johnson became a suitor of Lucinda about three or four months before the marriage, and, on one occasion before, at a neighborhood gathering, they were both present, not, however, associating with each other. The only testimony on the other side was the fact that the birth took place during coverture. There was no evidence that this birth was premature. In the face of these facts, we cannot say that there was an entire absence of testimony to support the finding of the Circuit judge, nor that the weight of the evidence is against it. .

It is the judgment of this court that the judgment of the Circuit Court be affirmed.

Mr. Justice McGowan absent at the hearing.