" She overlooks the fact that in Santiago the court relied upon the testimony of the mother together with evidence of blood tests excluding the mother's husband from paternity of the child. The other case claimant Dillon relies upon is People ex rel. Jones v. Schmitt (1968), 101 Ill. App.2d 183, 242 N.E.2d 275, in which, she states, "the testimony of the wife and husband that they were not having intercourse and were occupying separate bedrooms was sufficient to rebut the statutory presumption." She fails to note that in Schmitt the putative father had admitted having intercourse with the relatrix on or about the date of conception, had admitted "`there is a chance I could be the father,'" (101 Ill. App.2d at 186, 242 N.E.2d at 276) and had stated, when told that the baby looked like him, "`[H]e ought to'" (101 Ill. App.2d at 185, 242 N.E.2d at 276).

The presumption is that a child born to a married woman is legitimate. People ex rel. Adams v. Mitchell (1980), 89 Ill. App.3d 1023, 1028, 412 N.E.2d 678, 682; In re Ozment (1978), 61 Ill. App.3d 1044, 1047, 378 N.E.2d 409, 412; People ex rel. Smith v. Cobb (1975), 33 Ill. App.3d 68, 70, 337 N.E.2d 313, 315; People ex rel. Jones v. Schmitt (1968), 101 Ill. App.2d 183, 186, 242 N.E.2d 275, 276; People ex rel. Gonzalez v. Monroe (1963), 43 Ill. App.2d 1, 7, 192 N.E.2d 691, 693; People v. Powers (1950), 340 Ill. App. 201, 204, 91 N.E.2d 637, 638. • 2 The presumption, however, is not conclusive; it may be rebutted by clear and convincing evidence.

Willis, 214 Ill. App.3d at 690-91. The Illinois Appellate Court also held the presumption adequately rebutted and a putative father's paternity proved in People ex rel. Jones v. Schmitt, 101 Ill. App.2d 183, 184-86 (1968), where the child's mother and her husband both testified they had not had intercourse during the period of conception and for several months prior even though they lived in the same house at the time, the putative father bought wedding rings around the time of the mother's divorce, paid some of the mother's hospital bills from the birth, told an unrelated witness who mentioned that the baby looked like him that it "ought to," admitted having sex with the mother around the time of conception, and said there was a chance he could be the father. And finally, in People ex rel. Smith v. Cobb, 33 Ill. App.3d 68 (1975), the court found the legitimacy presumption rebutted when both husband and wife testified that they had not lived together for over 2 years prior to the child's birth, the child's mother and the putative father both testified they lived together at the time of conception and birth of the child, the mother and putative father had joint checking accounts, the putative father wa

Appellate courts in this State have consistently held that a paternity action, though criminal in form, is civil in nature. ( People ex rel. Harris v. Williams (1st Dist. 1972), 8 Ill. App.3d 821, 823-24; Alsen v. Stoner (2d Dist. 1969), 114 Ill. App.2d 216, 223; People ex rel. Jones v. Schmitt (3d Dist. 1968), 101 Ill. App.2d 183, 186; Poindexter v. Willis (5th Dist. 1967), 87 Ill. App.2d 213, 216. Cf. People ex rel. Meyers v. Glees (1926), 322 Ill. 189, 190 (proceeding under former Bastardy Act, ch. 17, pars.

The court found plaintiff's self-serving testimony that she did not engage in sexual intercourse with her husband insufficient to overcome the presumption of legitimacy, although the evidence was conclusive that plaintiff and defendant were engaged in a clandestine affair at the time of the child's conception. People ex rel. Jones v. Schmitt (1968), 101 Ill. App.2d 183, 242 N.E.2d 275, is relied upon by plaintiff. There, the court upheld a finding of paternity on the part of defendant even though plaintiff was married and living with her husband at the time of conception.

A presumption exists that a child conceived during wedlock is legitimate. This presumption is rebuttable and can be overcome by irrefragable proof ( People ex rel. Jones v. Schmitt (1968), 101 Ill. App.2d 183, 186, 242 N.E.2d 275, 276). Moreover, in a paternity suit, the burden of persuasion rests with the plaintiff to prove the charge by preponderance of the evidence.

In Illinois a child born to a married woman is presumed to be legitimate. ( People ex rel. Smith v. Cobb (1975), 33 Ill. App.3d 68, 337 N.E.2d 313.) The presumption is not irrebuttable but it is a strong one; various courts have described the quantum of evidence needed to rebut it as "clear and convincing" ( Cobb, 33 Ill. App.3d 68, 70, 337 N.E.2d 313, 315), "strong, satisfactory and conclusive" ( Orthwein v. Thomas (1887), 127 Ill. 554, 563, 13 N.E. 564, 566), and "clear and irrefragable" ( Orthwein, 127 Ill. 554, 562-63, 13 N.E. 564, 566; People ex rel. Gonzalez v. Monroe (1963), 43 Ill. App.2d 1, 6, 192 N.E.2d 691, 693). Some courts have held that in order to rebut the presumption it must be established that the husband was either inaccessible to the wife or sterile ( People ex rel. Gonzalez v. Monroe (1963), 43 Ill. App.2d 1, 192 N.E.2d 691; Robinson v. Ruprecht (1901), 191 Ill. 424, 61 N.E. 631), although it would appear that standard has been softened (see People ex rel. Jones v. Schmitt (1968), 101 Ill. App.2d 183, 242 N.E.2d 275), where inaccessibility was found despite the fact that husband and wife lived in the same house at the time of conception. In any event, we hold that even under the strictest evidentiary requirement the evidence adduced in this cause by plaintiff was sufficient to overcome the presumption.

• 1 There is a strong presumption in Illinois that a child born to a wife during her marriage was fathered by her husband. ( People ex rel. Repsel v. Kirk (1971), 133 Ill. App.2d 771, 273 N.E.2d 86; People ex rel. Jones v. Schmitt (1968), 101 Ill. App.2d 183, 242 N.E.2d 275; Zachmann v. Zachmann (1903), 201 Ill. 380, 66 N.E. 256.) The presumption of legitimacy prevails even though the child was conceived prior to the marriage of his mother ( Zachmann v. Zachmann).

• 2 The ordinary rules of pleading and proof are applicable in a paternity case. ( People ex rel. Jones v. Schmitt, 101 Ill. App.2d 183, 242 N.E.2d 275 (3d Dist. 1968).) As in any other case, a jury cannot be allowed to predicate its verdict on mere conjecture or surmise. ( Gillespie v. R.D. Werner Co., Inc., 43 Ill. App.3d 947, 357 N.E.2d 1203 (5th Dist. 1976); Champion v. Knasiak, 25 Ill. App.3d 192, 323 N.E.2d 62 (1st Dist. 1974).

We believe that this finding is against the manifest weight of the evidence and must be reversed. • 13 Although a husband is presumed to be the father of a child born to his spouse during marriage ( Sugrue v. Crilley (1928), 329 Ill. 458, 464, 160 N.E. 847, cert. denied (1928), 278 U.S. 616, 73 L.Ed. 539, 49 S.Ct. 20; Jones v. Industrial Com. (1976), 64 Ill.2d 221, 225, 356 N.E.2d 1), the presumption is rebuttable and can be overcome by clear and conclusive evidence ( Sugrue, at 464; Jones, at 225; People ex rel. Jones v. Schmitt (3d Dist. 1968), 101 Ill. App.2d 183, 186, 242 N.E.2d 275; Robinson v. Ruprecht (1901), 191 Ill. 424, 432, 61 N.E. 631). If the presumption is overcome, the child is no longer considered legitimate and must, therefore, be illegitimate. Section 12 of our Probate Act recites in part: "A child who was illegitimate whose parents intermarry and who is acknowledged by the father as the father's child is legitimate."