Weatherford v. Weatherford , 20 Ala. 548 ( 1852 )

CHILTON, J.

Many interesting, and some novel points have been elaborately and ably discussed by the counsel, in the argument of this case;' but the view which we feel constrained to take of it from the proof in the record, renders it unnecessary to go into their examination.

The complainant claims to be the legitimate son and sole heir of William Weatherford, deceased, and as such, entitled to his whole estate. Upon this allegation, that is, upon his legitimacy, his title depends.

The answers, which are responsive to the bill, explicitly deny that the said William Weatherford was ever married to the complainant’s mother, and they further deny the existence of the main facts charged in the bill, tending to establish the filiation of the complainant.

The burden of substantiating his averments by such proof as, under the rules of chancery practice, will authorize the court in pronouncing for the complainant, is thus cast upon him.

The evidence relied upon to establish the complainant’s legitimacy, may be considered under the following heads :

1. Facts tending to establish filiation.

2. Eeputation and cohabitation of his father and mother, as man and wife.

3. Proof tending directly to establish a marriage between his parents, according to the custom of the Creek Indian tribe, to which they belonged.

We agree with the learned counsel of the complainant, that the doctrine as laid down in the Code Napoleon, Tit. VII, § 32, respecting the evidence of filiation, is equally the doctrine of the common law: that “the enjoyment of this condition is established by a satisfactory combination of facts, indicating the connection of parent and child between an individual and the family to which he claims to belong.” The principal of these facts are said to be, that the individual has always borne tbe name of bis father to whom he claims to belong; that the father has treated him as his child, and in that character has provided for his education, his maintenance, and his establishment; that he has been uniformly received as such in society, and that he has been acknowledged as such by the family.

"We may further concede the proposition insisted on for the complainant, that if there be sufficient proof to establish fili-ation, the law raises the presumption of his legitimacy, thus shifting the burden of proof on those asserting his illegitimacy.

Upon narrowly scanning the proof, however, we are unable to discover any evidence of filiation sufficient to countervail the force of the positive denials of the answers, especially when we consider it in connection with the opposing testimony.

It may be proper to observe, that in considering the evidence, we should not entirely exclude from our view the fact, that William W eatherford was a person of much notoriety as a military chieftain and leader of his tribe, and that serving in that capacity during the most of the time when it is alleged he cohabited with Superlamy, the mother of the complainant, it is fair to presume, that the impression as to whether his connection with her was lawful or illicit would have been very general, and that the proof of the connection being licit would be more readily obtained than if such connection had existed between less notorious persons.

It is not shown that William Weatherford, the elder, ever saw the complainant. On the contrary, it is proved that Su-perlamy left his residence in Baldwin county while she was pregnant with the complainant, and never returned; and that the complainant was brought by a relative to the residence of Mary Weatherford, formerly Mary Stiggins, after the death of his mother, and subsequent to the death of said Weather-ford ; so that the record totally fails to furnish any evidence of filiation, arising from the treatment or recognition of the complainant by William Weatherford, senior.

. The proof also sufficiently establishes that Mary Stiggins, alias Weatherford, raised complainant and sent him to school, and said to several witnesses that be was tbe son of William. Weatherford; also, that her children by Weatherford called him “brother,” and treated him as a half-brother. But the proof, coupled with the answers, clearly preponderates to establish the position, that neither she nor her children ever recognized him as the legitimate offspring of said deceased. •Lucretia Sizemore says, Mary Weatherford did not recognize him as a legitimate son of William Weatherford.

Susan Sizemore says, he was not regarded as an heir.

William Sizemore says, Mrs Mary Weatherford did not own him as a lawful son, and that while her children recognized him as a brother, they did not regard him as one of the heirs.

These witnesses were examined by the complainant, and the only proof to show that he was regarded otherwise than as illegitimate by the family, is made by Samuel and Lucretia Edmunds, and they only prove that he was regarded in the family as William Weatherford’s son, without stating whether as his legitimate or illegitimate son.

We come therefore to the conclusion, that the proof of fili-ation is not sufficient, or rather is of that character which, while it proves filiation, disproves legitimacy, and is not sufficient to shift the onus of proof by raising a presumption of legitimacy.

The fact that the complainant was residing in the family of the late William Weatherford, up to and at the time of the division of the property, as proved by W. C. White, that he was then of lawful age, and interposed no objection to the division which was made by order of court, and which proceeded upon the ground of his illegitimacy, and consequent inability to take as heir or distributee, is another circumstance going to corroborate the conclusion, that while his paternity was acknowledged, he was not regarded as the issue of lawful wedlock.

When we come to the proof of reputation and the cohabitation of the complainant’s mother and father, we think the decided weight of evidence is against the complainant.

It would unnecessarily swell this opinion, to copy the evidence'afforded by the depositions of the several witnesses, upon this head. Samuel and Lucretia Edmonds, and Susan. Sizemore state, that they (Weatherford and Superlamy) were reputed to be man and wife in the neighborhood in which they lived; whereas, on the other hand, William Sizemore, Lucretia Sizemore, Gilbert C. Russell and William Hollinger prove that the connection was reputed to be illicit. Elizabeth Moniac proves that Weatherford “took up” with this woman at the “Holy Ground,” where the Indians were generally assembled after, the massacre at Fort Mims, during the war, and that complainant was always reputed to be a bastard. This proof fails to show that complainant’s claim to legitimacy, as deducible from reputation, can be sustained.

There is no proof of actual marriage according to the Indian customs; and the presumption of an actual marriage from the fact of cohabitation is rebut ted by the fact of a subsequent permanent separation, without any apparent cause, and the marriage in solemn form of Weatherford to Mary Stiggins, which took place shortly after the separation. See Senser et al. v. Andrew Bower and Wife, 1 Penn. Rep. 452; Jackson v. Claw, 18 John. Rep. 346.

Without, however, commenting more at large upon the testimony, we are fully satisfied that the whole proof entirely fails to establish the relation of man and wife between Weath-erford and Superlamy, and consequently fails to sustain the claim of the complainant, which is dependent upon proof of that relation.

This view accords with the conclusion attained by the Chancellor, and his decree must be consequently affirmed.

DARGAN, C. J., not sitting.