Herring v. Goodson , 43 Miss. 392 ( 1871 )

Simrall, J.:

The probate court of Eranklin county had granted letters of guardianship to John W. Herring of the person and estate of John T. Goodson, a minor.

Elisha Goodson, as the father of the minor, by petition, applied to the probate court of Franklin county, to revoke the letters, on the ground that the minor was and had always been a resident of Jefferson county; that no notice of Herring’s application had been given to him; that as father, he was natural guardian, and had the better right; that there was no jurisdiction over the guardianship of the minor in the probate court of Franklin county.

Herring in his answer denies the right of Elisha Goodson to intermeddle in the matter, because as he avers, the said Elisha had not access to the mother of said minor for more than thirteen months immediately preceding his birth, and therefore is not the father of the child. The cause went to final hearing on the petition and answer, without proof on either side.

The single question is, was the decree of the probate court, revoking and annulling the letters of guardainship of Herring, proper.

Goodson states in his petition that he had an application pending in Jefferson county when he learned of the appointment of Herring as guardian in Franklin county. It seems that the jurisdiction to appoint a guardian for this ward, pertained to the probate court of Jefferson county rather than Franklin. It is averred in the petition, that the minor, at the date of Herring’s appointment, resided, and had always resided in Jefferson county; his person was in that county, and most likely his estate also. This allegation is not denied in the answer. Really, the whole ground of objection made to the revocation of the letters of guardianship is, that Elisha Goodson is not the father of the minor, because he had no access to the mother. The petition claims the right to the guardianship of the minor and his estate, on the footing of a right as “ father.” That allegation implies that the child is the issue of the marriage. The answer makes a counter allegation, denying the paternity, sub modo, or conditionally, the child was born during the marriage, is ostensibly the son of Elisha Goodson, the petitioner; but is a bastard, because in fact, the said Elisha could not by possibility be his father, not having access to the mother within the proper time.

The plaintiff in error, insists that the paternity of Elisha Goodson was in issue by the pleadings, and that the onus of proof was on the petitioner. We think not, to the extent at least, and to the effect claimed. A child born after the marriage, and during the husband’s life, is presumed to be legitimate ; and so firm was this presumption originally, that it would not be rebutted, unless the husband was incapable of procreation, or was absent beyond the four seas during the whole period 'of the wife’s pregnancy. Co. Litt., 244 a; Rex v. Alberton, 1 Lord Ray, 395; Rex v. Murray, 1 Salk, 121. This ancient rule has been so far relaxed, that in later times, this presumption may be overcome by showing that the husband had no opportunity for intercourse, and the jury, from all the facts, are to infer whether intercourse did or not take place. Banbury v. Gardner, Peerage cases; Rex v. Luffe, 8 East, 173; State v. Petteway, 3 Hawks., 623; 1 Phil. Evi., 630. The defendant, Herring, did not deny the paternity of Elisha Goodson, except by the affirmative allegation of non-access to the mother. It would be incumbent on him, in order to overcome the presumption of legitimacy, to prove the non-intercourse.

In our view, then, of the pleadings, the cause was heard on the allegation of the petition that the minor’s home and residence was in Jefferson county, and that Elisha Goodson, as father, had made application there for guardianship, but desisted on account of the appointment of Herring in Franklin county, and these facts not being denied, except as before stated, in respect to the paternity, might have been treated by the probate court as admitted. Connected with the entire omission of Herring to set up any ground of jurisdiction in the probate court of Franklin county, such as the residence and estate of the minor lay in that county, we concur with the probate court in the conclusion it come to, and affirm its decree.