DocketNumber: No. 28
Citation Numbers: 12 Ga. 155
Judges: Lumpkin
Filed Date: 8/15/1852
Status: Precedential
Modified Date: 10/19/2024
By the Court.
delivering the opinion.
Berry Wesley Culpepper, the son of Isaiah Culpepper, and grand-son of Daniel and Jemima Culpepper, having been bom in three months after the marriage of his parents, both of whom are dead, claims to be-the heir at law, through his reputed father, to his grand parents; and the first great question to be settled is, whether or not his legitimacy may be disputed, so as to exclude him from the inheritance ? And if so, what are the principles of law applicable to the case ?
I need scarcely remark, that cases of adulterine bastardy are new in the Courts of this State. May the day be far distant, when our Courts shall be inundated with indecent and demoralizing investigations, as to whether the husband or another, be the father of children born within wedlock! Such inquiries cannot fail to contaminate the morals, and destroy the peace of society.
The doctrine upon this subject, has fluctuated greatly in England. The oldest law writers — Granville, Bracton, Fleta and Britton — seem to have considered that circumstantial evidence was admissible to counteract the maxim of the civil law — Por
But it appears from the year books, that rules of pleading were laid down by the English Courts, at an early period, the effect of which-was to treat the presumption in favor of legitimacy as conclusive, unless it could be opposed by evidence of the husband’s impolency; or of his being beyond seas, during the .whole period of the wife’s gestation.
And Lord Coke, in his Commentary on Littleton, lays it down, that, by the Common Law’, if the husband be within the four seas, (that is, within the jurisdiction of the King of England,) and his wife have issue, no evidence is admissible to prove the child a bastard; except in the sole case of apparent impossibility of procreation by the husband, as of his not having attained the age of puberty. Co. Litt. 244, (a.) See, also, Jenkins’ Eight Centuries. 10 Regina vs. Murray. 1 Salk. 122.
During the reigns which immediately followed, the presumption in favor of the legitimacy of a married woman’s offspring, was strict and unyielding to an extreme ; whether, as has been supposed, from motives of policy, to protect the fruits of the profligacy of kings and nobles from the perils of disinheritance, I wrill not undertake to affirm.
It is hard to believe, at the middle of the nineteenth century, that there ever existed, in any enlightened country, a law so diametrically opposed to every principle of reason and common sense, as, that the children of a married woman should in all cases, be deemed legitimate, provided the husband was anywhere within the four seas which surrounded the island of Great Britain, and was endowed with generating potency.
And yet, to such an absurd length was the principle carried, that it was solemnly decided by a Court of the highest jurisdiction, that a child born in England, was legitimate, although it appeared on the fullest evidence that the husband resided in Ireland during the whole time of the wife’s pregnancy, and for a long while previously, because Ireland was within the King’s dominion.
In another instance, where the husband resided in Cadiz, the
In modem times, the severity of the “ quatuor maria” rule has been done away with, and a doctrine adopted more conformable to the. standard of reason and good sense, and more in accordance with what seems to have prevailed at the earliest period of the law. Lord Raymond, of virtuous memory, to his honor be it recorded, was the first Judge who had the courage, in 1732, in the case of Pendrell vs. Pendrell (2 Strange, 925,) to decide that the legal presumption of the husband’s access might be controverted by other proof.
Mr. Mathew, in his treatise on Presumptive Evidence, 22 et sequitur, says: The presumption in favor of legitimacy, still
Where the husband and wife reside at a distance from each other, so as to exclude the possibility of sexual intercourse, there it is admitted that the presumption of legitimacy is at once rebutted. But in the opinion of the Judges, in the Banbury Peerage case, a man and wife may dwell in the same place, and in the same house, and yet, under circumstances such as, instead of proving, tend to disprove, that any sexual intercourse took place between them.
So it has been laid down, that the presumption of access, by which is now meant sexual intercourse, though fortified by the strong fact of a private intercourse, is nevertheless open to rebuttal, by evidence of the feelings and conduct of the parties— such feelings and conduct as were displayed immediately before and after it.
And I apprehend, that a case might arise where mere proof of the fact of sexual intercourse, at or about the time of conception, would not be conclusive evidence of the legitimacy of the offspring. For instance — suppose that an adulterous connexion was shown to have existed between the wife and a negro, at or about the time when the child should have been begotten, and the color and other physiological developments of the offspring, demonstrated its African paternity, might it not be bastardized?
See Harris JYicolas, whose work on the law of Adulterine Bastardy, contains every authority and every case, published and unpublished, in its chronological order, which bears upon this subject; maintains the correctness of Lord Poke’s exposition of the law, and of its sound policy, at least, after it became so far
And it must be admitted that such arule has this to recommend it: it is clear, certain, positive, intelligible and well-defined; and it would seem to have the sanction of the Supreme Court of the United States, as we gather from one of the head notes to the report of the celebrated case of Patterson vs. Gaines and Wife, 6 Howard, 550.” “ If the fact of marriage be proved, nothing can impugn the legitimacy of the issue, short of the proof of facts, showing it to be impossible that the husband could be the father.”
I have _ looked carefully through the opinion of the Court, delivered indhis case, without being able to deduce this proposition as strongly and definitely as it is here stated.
[3.]' We adhere however, to the opinion already intimated, and such is our determination, that marriage is to be regarded in no other light than presumptive proof that the husband is the father of all the children born during wedlock, or within a competent time afterwards ; that either in a civil suit, or on a criminal prosecution, by the evidence of non access, or other testimony, the presumption of the legitimacy of the offspring may be rebutted.
neThat upon the fM'ciflfun
In Howell vs. Barnes (Cro. Car. 382,) an estate was devised to A. for life, and after death, ordering her executors to sell and divide the proceeds. It was held, that the intention to disinherit the heir was wanting, notwithstanding the executors had authority to sell and divide the proceeds.
In Schanber vs. Jackson, ex. dem. Bogert and others, (2 Wend. 13,) this whole doctrine underwent a most searching examination. There, the testator bequeathed to his son, Simon, who was the heir at law, 20 shillings for his birthright, to be raised and levied out of his estate, “ wherewith he utterly excludes, debars and excludes him Jrom having or claiming any other, or further pretensions, claims and demands whatever, as being his heir at law, or by any other pretence whatever.” He then bequeaths certain articles of personal property to his other children, and twenty-five pounds to his son Johannes, to be raised out of moneys arising from his real and personal estate. He then .authorizes and empowers, orders and directs his executors.to sell and dispose his whole real and personal estate, as well in New York as elsewhere, (except the personal estate before bequeathed) either at public or private sale, and declares their conveyance valid and effectual to convey all his estate. ' He directs the money arising from such sale to be applied, first, to pay the legacies, and the balance to be divided; one-fifth to each of his sons, Simon and Johannes; one-fifth to each of his daughters, Maddalena and Engeltze, and one-fifth to his grand-son, Jacobus Berry, the share of his grandson to be retained till bis maturity or marriage, in the hands of his executors, and in case of his death, to be •divided among the four children above named. He then appoints his son Johannes, and daughter, Engeltze, executors of his will. Engeltze filed her renunciation as executrix, and the will was proven, and letters testamentary granted to Johannes.
The only question made in the Court of errors, was — whether by the will, any part of the legal estate was devised to the executors; or, whether they had a naked power to sell only, and distribute the proceeds ?
The Supreme Court decided, that there being no direct devise, either to the children or to the executors, there was nothing to prevent the descent of the estate to the heir at law. And the Chancellor, together with nine Senators, voted for affirming the judgment — twelve Senators for reversal. Stebbins, one of the majority, argued the question at great length, and with much ability, and he concedes “ that, had the will stopped after de'daring that Simon, the heir, should not take the estate, he wTould, nevertheless, have taken, because it would have been given to no other person.”
Here, there are no words of exclusion in the will, of the heirs at law; neither is the inheritance given to any other person. Of course, the fee is cast upon them by descent.
Let us next apply these principles to the pleadings, and see whether there was error in dismissing the complainant’s bill.
It is brought by Elias S. Wright, as administrator of Jemima Culpepper, deceased, against Lewis F. Hicks, as administrator generally, and also, as administrator de bonis non cum testamento annexo of Daniel Culpepper, deceased, to recover the residue of the estate of said Daniel, out of the hands of the defendant. It Seeks a decree for the whole surplus, upon the ground that the ostensible co-heir, to wit: Berry Wesley Culpepper, was an illegitimate.
Were the allegations in the bill — admitting them to be true— sufficient to bastardize this boy ? We think not. The bill does not even expressly charge the illegitimacy of Berry Wesley Culpepper, which it should do, and that notwithstanding he was born within three months after wedlock, that no sexual inter
The order of the Court, dismissing the bill, was manifestly wrong, admitting that the averments were insufficient, as to the bastardy. It should have been returned at least for the purpose of enabling the administrator of old Mrs. Culpepper, to secure from the defendant, the moiety of the estate coming to his intestate.
Consequently, the bill must be re-instated, with leave to amend in the particulars indicated.
I regret sincerely, that the Reporter is forbidden to publish in extenso, the argument submitted by Robert P. Hall, Esquire, in this case. It would constitute an abiding monument of his ability and research, and deserves to be preserved in an enduring form.
In Re Estate of Walker , 176 Cal. 402 ( 1917 )
Beal v. Ross , 11 Conn. Super. Ct. 323 ( 1942 )
Maloof v. State , 67 Ga. App. 269 ( 1942 )
Saunders v. Fredette , 84 N.H. 414 ( 1930 )
Dulsky v. Susquehanna Collieries Co. , 116 Pa. Super. 520 ( 1934 )
White v. Holderby , 192 F.2d 722 ( 1951 )
In Re White , 254 Ga. 678 ( 1985 )
Simeonides v. Zervis , 127 Ga. App. 506 ( 1972 )
Overstreet v. Nickelsen , 170 Ga. App. 539 ( 1984 )