Dennison v. Page

• Decision Date: 01 January 1857
• Citation: 29 Pa. 420
• Parties: Dennison versus Page.
• Court: Pennsylvania Supreme Court

29 Pa. 420

Dennison versus Page.

Supreme Court of Pennsylvania.

ERROR to the Common Pleas of Fayette county.

Kaine, for plaintiff in error.

Ewing and Davidson, for defendants in error.

The opinion of the court was delivered by KNOX, J.

Mary Dennison was born three months after the marriage of her mother with Samuel Page. Her right to any part of his real estate was denied upon the allegation that he was not her father. To determine the question of her legitimacy, an issue was certified by the Orphans' Court of Fayette county to the Court of Common Pleas.

Upon the trial the defendant offered to prove by Mrs. Mary Page, the mother of Mrs. Dennison, that Samuel Page was not her father; that she was begotten before the witness was married to Samuel Page, and that he did not beget her. The refusal of the Court of Common Pleas to receive Mrs. Page's testimony, forms the first assignment of error.

Where a child is begotten and born whilst its mother is a married woman, its legitimacy is presumed, until the contrary is clearly made to appear. This presumption can be removed by showing that the husband had no sexual intercourse with his wife at any time when it was possible for the child to have been begotten. Does the ante-nuptial conception weaken the presumption of legitimacy arising from the post-nuptial birth? It is well settled by authority that it does not. A child born in wedlock, though born within a month or a day after marriage, is legitimate by presumption of law: Co. Lit. 244 a. And where a child is born during wedlock, of which the mother was visibly pregnant at the marriage, it is presumed, juris et de jure, that it was the offspring of the husband. In Rex v. Luff, 8 East 198, Lord ELLENBOROUGH said that "with respect to the case where the parents have married so recently before the birth of the child, that it could not have been begotten in wedlock, it stands upon its own peculiar ground. The marriage of the parties is the criterion adopted by the law in cases of ante-nuptial generation, for ascertaining the actual parentage of the child. For this purpose it will not examine when the gestation began, looking only to the recognition of it by the husband in the subsequent act of marriage." And in the same case, LE BLANC, J., said: "Our attention has been called to cases where a child born within a short time after the marriage of the parents, is by the rule of law considered legitimate. That is a rule of law not to be broken in upon, except as in other cases by proof of natural imbecility," &c.

In Stigall v. Stigall, 2 Brockenborough 256, the marriage preceded the birth about six months, and there was no reason to suppose it a premature birth, yet the case was treated by C. J. MARSHALL precisely as though the child was begotten in wedlock, making the question of legitimacy depend upon the access of the husband. In Bowles v. Bingham, 2 Munford 442, the marriage took place in January, and the birth in the succeeding April. The opinion of the court, delivered by Judge ROAN, is to be found in 3 Munford 599, and it clearly establishes the doctrine that the presumption of legitimacy is the same where the child is born in wedlock, whether begotten before or after. So in The State v. Wilson, 10 Iredell 131. And in The State v. Herman, 13 Id. 502, the same rule is asserted and followed.

In the last-mentioned case, where the child was born five months and two days after the marriage, Chief Justice RUFFIN, in delivering the opinion of the court, said: "There seems to be no difference in point of law between a case where the conception was prior and posterior to the marriage, provided the birth be after wedlock, for that makes the legitimacy."

It follows, from the authorities above quoted, that the legitimacy of a child born in wedlock, though begotten before the marriage, is founded upon the supposition that it was begotten by the man who subsequently became its mother's husband, and that this presumption can only be rebutted by clearly proving that no sexual intercourse occurred between the two at any time when the child could have been begotten. Whether it was begotten in or out of wedlock, where the marriage precedes the birth, the presumption of paternity is the same, and the like evidence is required to bastardize the issue. That evidence is proof of non-access. Where the husband, or he who subsequently becomes such, has access to the mother of the child, the presumption that he is its father is conclusive. By the term access, used in this sense, we understand actual sexual intercourse; and this is presumed in the one case from the existence of the marital relation, and in the other from the subsequent marriage. Where marriage follows pregnancy, and precedes birth, he who marries the pregnant woman is presumed to be the father of the after born child. Upon this presumption rests the doctrine of the common law, that legitimacy follows birth in wedlock.

The question before the jury was, whether or not Samuel Page was the father of Mrs. Dennison? That he was her father, his marriage with her mother before her birth clearly establishes, in the absence of proof of non-access. The proffered testimony, in substance, though not in form, was to prove non-access.

That the mother was incompetent to prove this, is perfectly well settled by abundant and uniform authority. Non-access cannot be proved by either the husband or the wife, whether the action be civil or criminal, or whether the proceeding is one of settlement or bastardy, or to recover property claimed as heir at law.

I will mention some of the numerous cases where the question has been decided.

In Rex v. Rook, Wilson 340, which was a bastardy case, it was...