Fox v. Burke

Berry, J. As there are no facts tending to show, and, so far as-we discover, there is no claim made, that, though illegitimate born, Charles Fitzgerald was legitimated by the subsequent marriage of his parents, the real question on trial before the court below was whether Charles Fitzgerald was the legitimate son of John Fitzgerald and his first wife, in the sense of having been born in lawful wedlock. In favor of an affirmative answer to this question there was — First,. the testimony of two witnesses, swearing that John Fitzgerald told them that Charles was his son by his first wife. This, in common parlance, would be understood to mean that Charles was his son by his first wife as wife, or, in other words, that he was their legitimate son. Such would also be its prima facie meaning in law. Wilkinson v. Adam, 1 Ves. & B. 422; Caujolle v. Ferrie, 23 N. Y. 90. There was also the testimony of several other witnesses that John Fitzgerald for many years recognized and treated Charles as his son, as did also his second wife. Second, the evidence being very cogent that Charles was the son of John Fitzgerald, there is the presumption that he was his legitimate son; and there being evidence (from the declaration of John Fitzgerald) that he was the son of him (John) and of the woman who was his first wife, there is the further presumption that he was born in lawful wedlock. And these presumptions [321] axe not slight, as the learned judge below told the jury, but exceedingly strong. Caujolle v. Ferrie, supra, and cases cited; State v. Worthingham, 23 Minn. 528. They rest upon the principle that innocence and right conduct are presumed, in the absence of proof of guilt and wrong conduct, and upon the reluctance of the law to bastardize. Opposed to the testimony and presumptions mentioned is the testimony of plaintiff’s witnesses, denying that Charles was a son of John Fitzgerald, legitimate or illegitimate; for a more particular account of which we refer to the opinion filed upon the former appeal in this case. Fox v. Burke, 29 Minn. 171. In our judgment the testimony and the presumptions in favor of the legitimacy have a reasonable tendency to sustain it, and the testimony to the contrary is not so conclusive as to authorize a trial judge to take the question of legitimacy from the jury by directing them to find a verdict for plaintiffs. As for the comparative weight of the testimony on one side and the other, we express no opinion further than to say that the testimony on behalf of the plaintiffs was not so overwhelming or preponderant as to enable a court to say, as a matter of law, that it. completely overcame the testimony for the defendant. In view of a. probable new trial, this is all that it is advisable for us to say with reference to the testimony, except to remark that the testimony upon-defendant’s side upon the second trial is somewhat stronger than it. was upon the first. Order reversed. Gileillan, C. J., dissents.