Hartford Nat. Bank & Trust Co. v. Prince

• Decision Date: 30 August 1968
• Docket Number: No. 144143,144143
• Citation: Hartford Nat. Bank & Trust Co. v. Prince, 261 A.2d 287, 28 Conn.Supp. 348 (Conn. Super. 1968)
• Parties: HARTFORD NATIONAL BANK AND TRUST COMPANY, Trustee (Estate of Grace E. B. Prince) v. Helen B. PRINCE et al.
• Court: Connecticut Superior Court

Page 287

261 A.2d 287

28 Conn.Supp. 348

28 Conn.Sup. 348 HARTFORD NATIONAL BANK AND TRUST COMPANY Trustee (Estate of Grace E. B. Prince) v. Helen B. PRINCE et al.

No. 144143.

Superior Court of Connecticut, Hartford County.

Aug. 30, 1968.

Robinson, Robinson & Cole, Hartford, for plaintiff Hartford National Bank and Trust Co., Trustee.

Harry E. Back, Jr., Danielson, for defendants Methodist Church of Danielson, Westfield Cemetery Association, and Danielson Free Public Library.

Gross, Hyde & Williams, Hartford, for defendant Hartford National Bank and Trust Co., Executor.

Butler, Volpe & Sacco, Hartford, for defendants Andrew J., Elizabeth A., and Jason C. Bitgood.

Woisard, Back & Woisard, Danielson, for defendant J. Thomas Leamon.

William M. Shaughnessy, Jr., Hartford, for heirs of John E. Bitgood.

Basil T. Tsakonas, Danielson, for defendant John E. Bitgood.

PARSKEY, Judge.

This is an action brought by the trustee under the will of Grace E. B. Prince seeking the advice of the court with respect to the administration of the trusts established under articles fourth, fifth and sixth of the will. Under these articles, income is payable to Andrew Don Bitgood, Jr., for life and upon his death to his surviving children during their lives. Andrew Don Bitgood, Jr., died October 17, 1962, and is survived by four persons claiming to be his children. Three of these, the defendants Andrew Jackson Bitgood, Elizabeth Ann Bitgood and Jason Craig Bitgood, are concededly Andrew Don Bitgood's surviving children. The paternity of the fourth, the defendant John Edward Bitgood, also known as Edward John Bitgood, is being questioned in this action.

Vivian Ardell Wilcox intermarried with Andrew Don Bitgood, Jr., October 2, 1939. From the outset the marriage was a stormy one, resulting in many separations and reconciliations. In the summer of 1942 the marriage foundered and Vivian instituted divorce proceedings, but this action was discontinued later in the year. On July 9, 1943, an interlocutory divorce decree was rendered in Vivian's favor by the Superior Court of Rhode Island on the stated ground of 'neglect to provide.' On September 9, 1943, Vivian gave birth to the defendant John Edward Bitgood. The birth certificate named Andrew Bitgood as the boy's father. On January 8, 1944, a final decree of divorce was rendered. No mention of John Edward Bitgood is made in this decree. It does not appear that any hearing was held prior to the entry of the final decree; from the recitals in the decree it appears that the bonds of matrimony are loosed automatically after a lapse of time unless affirmative steps are taken to keep the strands in place.

During 1942 and 1943, Vivian resided at the home of her parents in Newport, Rhode Island. During all of 1943 and most, if not all, of 1942, Andrew and Vivian were separated from each other. At the end of November, 1942, Andrew entered the coast guard and was stationed at Provincetown, Massachusetts, until the end of December, 1942. During the month of January, 1943, Andrew was stationed at Newport, Rhode Island. In November, 1942, prior to his entry into service, and in December, 1942, following his entry, Andrew visited Vivian on a number of occasions. On some of these occasions Andrew stayed overnight at the Wilcox home and lived with Vivian in connubial symbiosis. He also visited at the Wilcox home during the month of January, 1943.

Andrew started keeping company with Helen Grise in the fall of 1942 and continued his association with her until their marriage on February 6, 1944. In the summer of 1943 and again in 1961 Andrew denied to Helen that he was the father of Edward John Bitgood. He made similar denials to his mother, Ida Bitgood of Moosup, Connecticut.

In the summer and continuing into the fall of 1942 Vivian was keeping company with Edward Krieger, whom she had met while serving as a U.S.O. (United Service Organizations) hostess. She obtained a wedding ring from Krieger and visited his parents in New Jersey, but the two were never married.

It is presumed that a child born during lawful wedlock is the husband's child. Grant v. Stimpson, 79 Conn. 617, 623, 66 A. 166. As a corollary, access between the husband and the wife is presumed until the contrary is plainly proved. 10 Am.Jur.2d, Bastards, § 12. These presumptions can be overcome only by clear, convincing and satisfactory proof that the child is illegitimate. McCormick, Evidence p. 646. While the proof need not establish absolute impossibility, the presumption is not rebutted by circumstances which only create doubt and suspicion. It may be wholly removed by proper and sufficient evidence showing that the husband was impotent, that he was entirely absent so as to have had no intercourse or communication of any kind with the mother, entirely absent at the period during which the child must in the course of nature have been begotten, or present only under such circumstances as affords clear and satisfactory proof that there was no sexual intercourse. 10 Am.Jur.2d, Bastards, § 19. Proof of access between husband and wife during the period within which a child must have been begotten is conclusive as to the child's legitimacy, whereas a mere showing that the husband was absent at a time prior to birth corresponding to the normal period of gestation is not enough of itself to establish nonaccess. 10 Am.Jur.2d, Bastards, § 23.

The contesting children offered three types of evidence to overcome the presumption of legitimacy: (1) denials of paternity by Andrew Don Bitgood, Jr.; (2) evidence claimed to show inferentially that Edward Krieger is probably John Edward's father; (3) evidence claimed to show inferentially...