Opinion
01-01-1811
BOWLES v. BINGHAM
OPINION
This opinion was delivered by Judge ROANE
This opinion was delivered by Judge ROANE, and not by the PRESIDENT, and was omitted in its proper place by a mistake of the Reporter.
THIS is a bill of interpleader, brought by the administrator of Harriet Bowles, a deceased infant, against the appellant, her father, and her relations, ex parte materna, of whom the wife of the appellee, Bingham, was one, praying that the conflicting claims of these respective parties, to the estate of the said Harriet, may be settled by the decree of the Court of chancery, and the said administrator thereby enabled to make distribution of her estate. The ground stated, as well in the bill as in the answers of the maternal relations aforesaid, for excluding the right of the appellant, is, that, although the said Harriet was born after the intermarriage of the said appellant with her mother, the said appellant was not, in fact, her father; had disclaimed her as his child; had repudiated her mother; and separated himself from her by articles of agreement, which are made an exhibit in the cause; these articles, it is further alleged, were made very shortly after the birth of the said Harriet; which birth, it is, also, alleged, took place in about three months after the marriage.
Throwing out of this case the answers touching the facts aforesaid, of all the defendants, (that of Bowles only excepted,) on the ground that the answer of one defendant is incompetent to bind another, if not on the further ground that the respective defendants to a bill of interpleader may be considered, in some sense, as plaintiff's, in relation to each other, there is no evidence remaining in the cause, touching the principal question, except the answer of the appellant; for the articles of separation, while they state that that measure was produced by a convincing cause, rendering it impossible that the parties should live any longer together, do not specify what that cause was. That instrument does not bring forward, and rely on, the particular facts, on the ground of which the claim of the appellant is now opposed. As to the answer of the appellant, while it admits that he intermarried with the mother of the said Harriet, and that the said Harriet was born after the said marriage, it neither admits that her birth was at a time which, taken in relation to that of the marriage, rendered it certain that she was begotten before the marriage, nor avers that at such time he had no access to her said mother, and far less that such access, by him, was impossible. For any thing appearing in this answer, then, the said Harriet may be considered as having been begotten, as well as born, during wedlock, and, also, at a time when non-access, on the part of the husband, has not been shown, (if pretended, either by himself, or by others. As this construction, however, may be too rigid, as the appellant, perhaps, intended distinctly to admit the facts stated in the bill, showing that the said Harriet must have been begotten before the marriage, we will consider the case as if this circumstance, resulting from the respective times of the marriage, and of the birth of the said Harriet, had been particularly and distinctly admitted by his answer.
This answer admits, more particularly, that the said appellant" always insisted that the said Harriet, though born in wedlock, was not his child. This opinion of the appellant is entirely consistent with the idea, that he had access to her said mother, at the time of procreation, but that some other person, who might also have had access to her, about the same time, was, in his opinion, in reality, the father of the child, and this opinion, so far from being bottomed upon a supposed inability of procreation, on his part, or a non-access to his wife, (which are the only grounds of exception tolerated in cases of this sort,) may have been induced either by a feverish and unwarrantable jealousy on his part, by a belief of a simultaneous and concurrent access on the part of other men, or by other circumstances equally uncertain and equivocal. This concession, therefore, (supposing that the doctrines applying to cases of procreation during marriage, apply at least with equal force to those taking place before marriage,) will fall far short of the desideratum required in cases of the former character.
With respect to procreations during marriage, the presumption is, that all persons born during marriage are legitimate. This presumption can be destroyed only by contrary proof, demonstrating that the child is not the child of the husband; which, again, can only be, by showing that, from his continued absence from his wife, at or about the time of procreation, or from the impotency of his body, it is impossible that he should be the father. This presumption, in favour of legitimacy, is so strong, and the exceptions thereto are held under such strictness, that, where a man was divorced from his wife, propter perpetuam generandi impotentiam, and then married another woman, who had issue during the marriage, that issue was holden to be his, on the ground that a man may be habilis et inhabilis diversis temporibus. (a ) It is not, therefore, a mere circumstance of probability that will operate in this case to bastardize the issue. Such issue will be held to be legitimate, unless it be conclusively shown, that a person, other than the husband, must necessarily and unavoidably have been the father. This doctrine applies, à fortiori, it is believed, to cases of procreation before the marriage.
While the wise policy of our law, anxiously desiring that every child shall be assigned to some responsible person as his parent, for his nurture and education, and finding it necessary to act by general rules, has adopted as the rule, in this case, that " paterest quem nuptiæ demonstrant; " and while, in relation to children procreated during the marriage, it only tolerates an inquiry going to show, that the husband could by no possibility have been the father of the child, it will, certainly, not relax that rule in relation to a procreation before the marriage, to cases in which the husband has entered into a matrimonial engagement with his wife, not only with a full knowledge of the rule aforesaid, but, also, (in general,) with a knowledge of her particular situation, in relation to her pregnancy, or otherwise. Our law wisely throws a veil over acts of incontinency, in such cases, and, certainly, will not, without necessity, and in a spirit of departure from the wise rule of public economy before mentioned, inundate our Courts with indecent inquiries whether this or that man, whether the husband or another, committed a given act of immorality and fornication. It will, at least, emphatically, interdict the HUSBAND from giving evidence in such case, for the reasons so luminously assigned, in relation to procreations during the marriage, the case of Goodright v. Moss. ( a ) It is even better that a particular grievance should exist, than a scene of this sort be opened, without necessity, in a country in which public decorum is a part of its law, to contaminate and destroy the morals and peace of our country.
If, in the time of fustinian, it was deemed proper, by that emperor, to establish the age of 14 as the general age of puberty, (though it is evident that the state of puberty must vary with the particular habits and constitutions of individuals,) rather than continue the indecent usage therefore existing, of judging of such puberty, in relation to each particular case, by an inspection of the habit of the body; reasons founded on a like regard to decorum, may well be considered as having justified the general regulation we are now considering. It is no impeachment of the wisdom of the rule in either instance, or of the policy of acting by a general regulation, that particular cases may chance to occur, to which the spirit of the rule, in either case, may be inapplicable.
While, therefore, we are inclined to think that the inquiry in question is occluded on general grounds, sanctioned by principles contained as well in our own municipal code, as the codes of other enlightened nations, we are clearly of opinion, upon the particular evidence in this case, which is not only inadmissible, as aforesaid, but does not repel the possibility of the infant Harriet's having been actually begotten by the appellant; that the said Harriet was legitimate; that the appellant is to be considered as her father, under the sound construction of our laws and, as such, is entitled to her estate, in preference to the maternal relations of the said Harriet or any other person or persons. The consequence is, that the decree of the chancellor, in favour of the maternal relations, must be reversed, and rendered in favour of the appellant, agreeably to the foregoing ideas, pursuing in other respects the provisions in the said decree contained.