In re Estate of Jones

• Decision Date: 03 October 1939
• Citation: 8 A.2d 631,110 Vt. 438
• Parties: IN RE ESTATE OF HENRY JONES, LEONARD JONES, APPELLANT
• Court: Vermont Supreme Court

8 A.2d 631

110 Vt. 438

IN RE ESTATE OF HENRY JONES, LEONARD JONES, APPELLANT

Supreme Court of Vermont

October 3, 1939

May Term, 1939.

Presumption of Legitimacy---1. Function of Disputable Presumption---2. Presumption Not Evidence---3. "Conclusive Presumption" Discussed---4. Character of Rule as to Burden and Degree of Proof to Establish Illegitimacy---5. Burden of Proof Not Shifted---6. Burden of Establishing Alibi in Criminal Case---7. Burden and Degree of Proof Not Shifted---8. Burden of Proof Where Legitimacy in Issue---9. Rule as to Burden and Degree of Proof Not Changed by Tyrrell Case---10. Rule as to Presumption of Legitimacy Stated---11. Instructions to Jury on Burden and Degree of Proof of Illegitimacy---12. Proof of Nonaccess---13. Not Required to Prove Legitimacy Impossible---14. Viewing Evidence on Exception to Refusal to Direct Verdict---15. Evidence Held to Make Jury Question on Legitimacy Issue.

1. A disputable presumption is a rule of law to be laid down by the court, which shifts to the party against whom it operates merely the burden of evidence, and when that party has produced evidence fairly and reasonably tending to show that the real fact is not as presumed, the office of the presumption is performed, and the fact in question is to be established by evidence as are other questions of fact without aid from the presumption, which has become functus officio.

2. A disputable presumption, of itself alone, contributes no evidence and has no probative quality; it takes the place of evidence, temporarily, at least, but if and when enough rebutting evidence is admitted to make a question for the jury on the fact involved, the presumption disappears and goes for naught.

3. In strictness there can be no such thing as a "conclusive presumption," for whenever from one fact another is conclusively presumed, in the sense that the opponent is absolutely precluded from showing by any evidence that the second fact does not exist, the rule really provides that where the first fact is shown to exist, the second fact's existence is wholly immaterial for the purpose of proponent's case, which is a rule of substantive law and not a rule apportioning the burden of persuading as to certain propositions or varying the duty of going forward with evidence.

4. When a child is born in wedlock the burden and degree of proof to establish illegitimacy is fixed by a rule of substantive law and not by the presumption of legitimacy itself, and while this rule accompanies the presumption as in the case of the presumption of innocence, it is the rule and not the presumption that fixes the burden and degree of proof.

5. Once the fact of birth in wedlock is shown, the degree of proof required to rebut the presumption of legitimacy is greater than a mere preponderance of evidence but there is no shifting of the burden of proof in the sense that the plaintiff has been relieved of the burden of persuasion, nor is the function of this presumption an exception to the general rule that a presumption shifts only the burden of going forward with the evidence.

6. At the outset in a criminal case the State has the burden of proof and the degree of proof required is beyond a reasonable doubt, but if the respondent claims an alibi he has the burden of establishing that he was not at the place of the crime when it was committed and the degree of proof on this issue is a preponderance of the evidence.

7. Though a respondent in a criminal case who claims an alibi has the burden of establishing this defense by a preponderance of the evidence, this does not shift to him the burden of proof in the sense of the burden of persuasion and require him to prove his innocence by a preponderance of the evidence.

8. On an appeal to county court from probate court taken in behalf of a minor who was claimed to be the son of a decedent and entitled to share in his estate, the minor had the burden of establishing his claim by a preponderance of the evidence and this burden remained with him throughout the case, but the parties seeking to prove by the nonaccess of the decedent that the minor, though born in wedlock, was an illegitimate child of the decedent's wife, had the burden of proof on this issue and the degree of proof required was beyond a reasonable doubt.

9. The rule recently laid down with respect to presumptions, that they have no probative force, worked no change upon the rule of substantive law which accompanies the presumption of legitimacy and which fixes the degree of proof and places the burden thereof upon him who disputes the legitimacy of a child born in wedlock.

10. A child born in wedlock is presumed to be legitimate, but this presumption may be rebutted.

11. On appeal to county court from probate court taken in behalf of a minor claimed to be the son of a decedent and entitled to a share in his estate, where it was alleged in opposition that the minor was the illegitimate son of the decedent's wife, though born in wedlock, the minor was entitled to have the jury instructed that the burden of proof was on those disputing his legitimacy to prove the nonaccess of the decedent and that the proof of nonaccess must be clear and to the satisfaction of the jury.

12. When proof of nonaccess is relied upon to rebut the presumption of legitimacy, where the husband and wife are living apart, nonaccess may be shown by facts and circumstances.

13. In order to rebut the presumption of legitimacy proof of nonaccess need not go to the extent of showing it impossible that the husband was the father but the facts relied upon must be proven beyond a reasonable doubt.

14. In considering an exception to the trial court's refusal to direct a verdict the Supreme Court must take the evidence in the light most favorable to the party against whom the motion was made.

15. A motion for a directed verdict in favor of one whose legitimacy was in issue on appeal to county court from probate court was properly refused when the evidence tended to show that the alleged parents separated about eleven months before the child was born, and thereafter lived in different towns, that the wife was seen at one time not definitely specified near the husband's home and was in the village where he lived on another occasion, that the husband occasionally went to the city where the wife was living, and that the wife never made any request of the husband for the support of the child.

APPEAL IN PROBATE from a final decree of distribution in a decedent estate, taken in behalf of a minor claimed to be the son of the decedent and entitled to a distributive share of the estate. The appellees claimed that the appellant, though born in wedlock, was an illegitimate son of the decedent's wife. Trial by jury at the March Term, 1939, Washington County, Cleary, J., presiding. Verdict that the appellant was not the son of the decedent and judgment thereon. The appellant excepted. The opinion states the case.

Judgment is reversed and cause remanded.

H C. Shurtleff for the appellant.

Robert H. Ryan for the appellees Gerald F. Jones and Glenola E. Jones.

Webster E. Miller for the appellee Lloyd Jones.

Present: MOULTON, C. J., SHERBURNE, BUTTLES, STURTEVANT and JEFFORDS, JJ.

OPINION

STURTEVANT

One Carl B. Lown, of Buffalo, New York, as next friend and guardian ad litem of Leonard Jones, the appellant, a minor, took an appeal from the final decree of the Probate Court for the District of Washington issued upon the estate of one Henry Jones, deceased, to Washington county court. Leonard claimed to be a son of said Henry Jones, deceased and as such entitled to a distributive share of the estate of said Henry Jones. His claim was opposed by three Jones children, namely, Lloyd, Gerald and Glenola Jones. Gerald is of age but under guardianship. Guardians ad litem were appointed below for the minors, Lloyd and Glenola. The court below referred to appellant as the plaintiff and the three Jones children, alleged heirs of decedent, as defendants and we will do so in this opinion. How these children were related to decedent is not shown by the record. A jury trial was had and a verdict returned, finding that said plaintiff was not the son of said Henry Jones, deceased, and judgment on the verdict was entered. The case is here on plaintiff's exceptions: (1) To the denial of plaintiff's motion for a directed verdict; (2) To the failure of the court to charge "that the burden of proof is on the defendants to prove that Henry Jones did not have sexual intercourse with his wife at such a time as would procreate this child, Leonard Jones"; (3) "To the failure of the court to charge that proof of non-access must be clear and to the satisfaction of the jury"; (4) To the denial of plaintiff's motion to set aside the verdict.

At the opening of the trial below defendants conceded that the plaintiff, Leonard Jones, was born to Mary Jones, wife of the intestate, during wedlock, on August 19, 1923. This concession being made, plaintiff rested his case. Defendants claimed that at the time Leonard Jones was begotten the intestate, Henry Jones, did not have access to his wife, Mary, mother of Leonard, and introduced evidence tending to prove such contention.

The questions raised by plaintiff's exceptions taken all together may be stated as follows: When a person is born in wedlock and it is claimed that he is illegitimate, who has the burden of proving the facts establishing such illegitimacy and what is the degree of proof required? Plaintiff contends that the law answering these questions is as set forth by this Court in the case of State v Shaw, decided at the February Term, 1915, reported in 89 Vt. 121, 94 A. 434, L.R.A. 1915F, 1087. Defendants make no question but that at the time of ...