Scanlon v. Walshe

Fowler, J., delivered the opinion of the Court. It is fortunate that Courts of Justice are seldom called upon to consider a case in which the facts are so shocking to every sense of decency and morality as those presented by the record now before us. We shall not attempt, in this opinion, to discuss with any particularity the testimony which, we think, justifies this remark, for the view which has been forced upon us, after careful consideration, renders such an uninviting task altogether unnecessary. On the 26th March, 1891, David J. Walshe, of Baltimore City, died, leaving a will disposing of his personal property and one-third of his real estate and intestate as to the balance of his real estate, which latter consisted of, by far, the larger and more valuable part of the property known as the Mansion House, on the northwest corner of Fayette and St. Paul streets, in said city. A bill was filed in the Circuit Court of Baltimore City by Carlotta — 128 — Walshe, for the sale of said real estate, against a number of persons claiming to be heirs at law of her husband, David J. Walshe, three of them being her own children, born while she was living in lawful wedlock with a former husband, and the others being sisters and the children of a deceased sister of said Walshe. Proper proceedings were had, and, by agrfeement of' parties, the whole property was sold for the sum of seventy thousand dollars, which sale was duly confirmed. By a pro forma order, the Court below ratified Auditor’s Account B, by which the sum of $25,795.41 was allowed to three children of the plaintiff as their share of the proceeds of sale. From this order the sisters and the children of a deceased sister of Walshe have appealed. And the question is, who are the heirs at law of David J. Walshe ? There are two sets of claimants, first, two sisters and several nephews and nieces, and secondly, the plaintiff’s three children, the youngest of whom is about twenty-four years of age, who, although bom while their mother was married to and living in lawful wedlock with her first husband, Florian V. Simmons, from whom she was divorced, claim to be the children of said Walshe, whom she after-wards married, and his heirs at law, because subsequent to their birth their mother and their alleged father married, and he acknowledged them to be his children. A contention, whose foundations are so contrary to good morals, public policy and the presumption of law, can be maintained only by some statute which not only introduces “a new law of inheritance,” as our own statute does (Brewer v. Blougher, 14 Pet. 178, opinion by Ch. J. Taney), but which, to bring this case within its terms, must also abrogate some rules of evidence which we are not inclined either to weaken or destroy. The statute upon which the appellees, the children of Carlotta Walshe rely to maintain their contention, is section 29, Article 46 of the Code, which provides that “if any man shall have a child or children by any woman, whom he shall afterwards marry, such •child or children, if acknowledged by the man, shall, in — 129 — virtue of such marriage and acknowledgement, be hereby legitimated and capable in law to inherit and transmit inheritance as. if born in wedlock. This section was before this Court for construction in the case of Hawbecker v. Hawbecker, 43 Md. 516, where a married man had by his wife four children born in lawful wedlock, and during the life of his wife he also had six children by another woman. His wife died, and he subsequently married the mother of the last mentioned children, whom he acknowledged as his, and treated them as he did the children of his. first wife. It was very earnestly contended in that case,, that the section above quoted should not be construed so as. to include within its terms a case in which children are conceived and born when their parents are under impediment to marry. But it was held that although the Legislature, no doubt, in thus mitigating the severe rule of the common law, intended to hold out to the surviving parents an inducement to marry, and thus put a stop to the further illicit intercourse between them, yet “the main purpose and intent of the enactment * * * was to remove the taint and disabilities of bastardy from the unoffending children, when-, ever their parents did many, without regard to the deepness of guilt on the part of their parents.” And in, concluding the opinion, the language of Chief Justice Taney in the case of Brewer v. Blougher, supra, to the same effect in relation to the same provision of law, is quoted approvingly. We said, “the Legislature has not seen fit to make any exceptions to its operation. Its terms embrace every case where “any man shall' have a child or children by any woman whom he shall afterwards marry.” Hawbecker v. Hawbecker, supra. It will be observed, however, that in the case we have last cited, there was no question whatever made as to the paternity or illegitimacy of the children who were admitted to have been born out of wedlock. It was assumed that the reputed was the real father, and that the children were illegitimate; and the only question was whether the law was applicable to — 130 — the admitted facts. But here we have a different condition. Indeed this is the very opposite to Hawbecker’s case. For while the force of the broad terms of the law is here admitted, it is contended that the foundation facts — the facts of illegitimacy and of the alleged paternity — are not established at all, because, first, the witnesses are incompetent, and secondly, even if competent, their evidence is not of that strong, distinct, satisfactory and conclusive character which is required to overcome the presumption expressed in the common law rule “Hares legitimus est quern nuptial or another expression of the same rule, “Pater est quem nuptia demonstrante The old rule in England was, and also in this country, i Greenleaf on Evidence, sec. 28, that this presumption of legitimacy was conclusive, but it is said the Courts did not long permit so violent an estoppel. 1 Bishop on Marriage, Divorce and Separation, sec. 1170. This legal presumption has been characterized as the foundation of every man’s birth and status and of the whole fabric of human society, and no where has its full force and extent been so fully acknowledged and so well expressed, as in the case of Hargrave v. Hargrave, 9 Beav. 553, by Lord Langdale, the then Master of the Rolls, decided in 1846. He says, “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, 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 satisfactory proof that there was no sexual intercourse.” “Such evidence as this,” says his Lordship, “puts an end to the question and establishes the illegitimacy of the child of a married woman.” And in the same case it was held that where opportunities occurred for sexual inter — 131 — course between the husband and wife, and there was no proof of his impotency, 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. It was said in Crawford v. Blackburn, 17 Md. 56, that the declarations of the parents were not admissible to defeat the consequences of marriage, such as that the children are bastards. And Lord Mansfield said in Goodright v. Moss, 2 Cowp. 594: “It is a rule founded in decency, morality and policy that the father and mother shall not be permitted to say, after marriage, * * * that their offspring is spurious.” And, in our opinion, the testimony of the adulterer, when offered for the same purpose, should likewise be excluded, especially so in all cases in which it appears that the proof does not exclude the possibility or probability of access of the husband to the wife. In such cases, as Lord Langdale said in Hargrave v. Hargrave, supra, there being no proof of impotency, no evidence will be admitted to show illegitimacy. To this extent, at least, we think the presumption of the legitimacy of the child of a married woman should be conclusive. The mere fact of marriage and acknowledgement should not, under the facts of this case, be received as proper evidence of illegitimacy. The fact of illegitimacy should first be proved, and then the marriage and acknowledgement may be offered to prove paternity. And so it was held in Grant v. Mitchell, 83 Me. 27. And in Hemenway v. Towner, 1 Allen, 209, the declarations of the adulterer offered to show illegitimacy of the child of a married woman were excluded, the husband and wife having lived together as such until six months next before the birth of the child. It is true these two cases last cited were decided upon statutes not altogether like ours, but the questions decided were questions of evidence, and we think what was said in those cases on this subject are particularly applicable to this case. Now, the only testimony before us which can be properly resorted to to prove illegitimacy is that of the plaintiff, Car — 132 — lotta Walshe, which, as we have seen, is inadmissible for that purpose At the most, her testimony may be offered to show she was untrue to her husband, 1 Bishop M D. and Separation, sec. 1179. And so also as to the declarations and letters of David Walshe, which appear to have been offered to prove acknowledgement of the children. Neither will be admissible to show the husband is not the father, if he had or could have had access as indicated in Hargrave v. Hargrave, supra, and that he could have had access, we think, is clearly shown in this case, for the separation did not occur until several years after the birth of the youngest child. But the testimony of Carlotta Walshe, as well as that of the adulterer, if he were alive, would be inadmissible to show bastardy, and equally so his declarations, because they are both estopped to swear to a state of facts in conflict and inconsistent with the proceedings for divorce and for change of name of her three younger children. She will not be allowed now to come into Court and recklessly contradict what she alleged in the one and swore to in the other. Edes v. Garey, &c., 46 Md. 41 ; Hall v. McCann, 51 Md. 351 ; P. W. & B. R. R. Co. v. Howard, 13 Howard, 335. And it appearing that he was the instigator of both proceedings and in a position to know the truth, the estoppel should work equally against him, his declarations and his letters. In the supplemental brief on the part of the alleged children of Walshe filed a few days ago, it is suggested that the objections now relied on in this Court to most of the testimony are not covered by the exceptions filed by the appellants below, and David J. Walshe is spoken of as a witness whose testimony was objected to below only on the ground of estoppel. It will, however, be observed that he is not a witness. His declarations, verbal and written, were offered, and the testimony of all the witnesses who testified to the former, as well as the latter, which were offered in evidence, all of which was offered to show recognition of the children, was excepted to on the ground of estoppel. And while it — 133 — may be that the estoppel of the divorce and other proceedings may not go to the extent urged by the appellants, yet, as we have already said, both David J. Walshe, if living would be, and Carlotta Walshe is thereby estopped to take positions inconsistent therewith. And we think the exceptions, on the ground of estoppel, filed below, fairly cover the additional grounds of estoppel urged in this Court. For while it is required that every exception, in order to be availed of in this Court, must be reduced to writing and filed in the Court below, at least, before the hearing there begins, yet it is not necessary to set forth all the reasons and grounds on which such exceptions are based. But we think it unnecessary to prolong this discussion. It is conceded the exceptions filed below cover the testimony of Carlotta Walshe as to non-access, and having sustained the exception based on this objection, her testimony as to any collateral fact, for the purpose of proving non-access, would also be inadmissible. Weightman on Marriage and Legitimacy, 144. And it must be remembered that we have been considering what is the true rule by which to measure the amount and character of evidence required to prove the child of a married woman to be a bastard, which child is born while the mother is living in lawful wedlock with her husband. And although in this particular case the woman herself, and her children, the youngest of whom is twenty-four years old, are trying to establish the illegitimacy of the children, and for that purpose are asking us to destroy or weaken this rule, which the experience of many years and the wisdom of eminent Judges have sanctioned, we must remember, that such a position is seldom occupied by either the mother or her offspring. She and they are more frequently interested in guarding and enforcing the rule which protects the rights of legitimate rather than the rights of illegitimate children. We feel bound to say, however, that if all the testimony we have thus excluded were properly before us, we could — 134 — not, while giving full force and effect to the legal presumption of legitimacy, and in the absence of that strong, distinct, satisfactory and conclusive testimony required to overcome that presumption, do otherwise than reverse the pro forma order appealed from. (Decided March 27th, 1895.) Order reversed and cause remanded, costs to be paid out of the fund in hand of the trustees..