In re Jones' Estate

• Decision Date: 03 October 1939
• Docket Number: No. 1665.,1665.
• Citation: 8 A.2d 631
• Court: Vermont Supreme Court
• Parties: In re JONES' ESTATE.

8 A.2d 631

In re JONES' ESTATE.

No. 1665.

Supreme Court of Vermont. Washington.

Oct. 3, 1939.

Exceptions from Washington County Court; Walter H. Cleary, Judge.

Proceeding in the matter of the estate of Henry Jones, deceased, wherein Leonard Jones claimed to be a son of the deceased. Lloyd, Gerald and Glenola Jones opposed the claim. To review judgment on a verdict finding that claimant was not the son of deceased, claimant brings exceptions.

Reversed and cause remanded.

Argued before MOULTON, C. J., and SHERBURNE, BUTTLES, STURTEVANT, and JEFFORDS, JJ.

H. C. Shurtleff, of Montpelier, for plaintiff.

Robert H. Ryan, of Montpelier, for defendants Gerald F. Jones and Glenola E. Jones.

Webster E. Miller, of Montpelier, for defendant Lloyd Jones.

STURTEVANT, Justice.

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 altogether 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, reported in 89 Vt. 121, 94 A. 434, L.R.A.1918F, 1087, decided at the February Term, 1915. Defendants make no question but that at the time of the decision in this case it was the law in this State that a child born in wedlock is presumed to be legitimate, that this presumption may be rebutted by proof of non-access and that where the husband and wife are living apart non-access may be shown by facts and circumstances, and that while the proof need not go to the extent of showing it impossible that the husband was the father, the degree of proof to rebut the presumption must be beyond a reasonable doubt. However, the defendants contend that our law on the questions before us has been changed by the decision of this Court in the case of Tyrrell v. Prudential Insurance Company of America, reported in 109 Vt. 6, 192 A, 184, 192, decided at the January Term, 1937. The rule laid down in the Tyrrell case relied upon by defendants in support of this contention is as follows: "A disputable presumption is a rule of law to be laid down by the court, which shifts to the party against whom it operates the burden of evidence, merely. It points out the party on whom lies the duty of going forward with evidence on the fact presumed. 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. To translate this statement into the language of this court, all such presumptions arc locative, merely. A 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. In such a case, the presumption does not have to be overcome by evidence; once it is confronted by evidence of the character referred to, it immediately quits the arena. The rule we now adopt applies to all disputable presumptions, including the presumption of innocence."

It therefore becomes necessary to determine the basis and reason for the law above stated as to burden and degree of proof required to rebut the presumption of legitimacy when a child is born in wedlock.

According to the very early common law in England no evidence could be introduced to show that a child born in wedlock was illegitimate. With the advancement of civilization and the recognition of the rights of personalty, the presumption could be rebutted by evidence that the husband was impotent or was beyond the four seas of England at the time of conception. 33 Har.L.Rev. 306; 7 A.L.R. 330. In 1811 in the Banbury Peerage case, 1 Sim. & Stu. 153, it was held "that in every case where a child is born in lawful wedlock, the husband not being separated from his wife by sentence of divorce, sexual intercourse is presumed to have taken place between the husband and wife until that presumption is encountered by such evidence as proves, to the satisfaction of those who are to decide the question, that such sexual intercourse did not take place at any time, when, by such intercourse, the husband could, according to the law of nature, be the father of the child." In the case of State v. Shaw, supra [89 Vt. 121, 94 A. 436, L.R.A.1915F, 1087], this court held that the words "to the satisfaction of those who are to decide the question" was equivalent to "beyond a reasonable doubt." In the English case of Hargrave v. Hargrave, decided in 1846, 9 Beav. 553, 555, it was held that the presumption of legitimacy of a child born in wedlock "may be wholly removed by proper and sufficient evidence, showing that the husband was (1) impotent; (2) entirely absent so as to have no intercourse or communication of any kind with the mother; (3) entirely absent at the period during which the child must, in the course of nature, have been begotten; or (4) only present under such circumstances as offered clear and satisfactory proof that there was no sexual intercourse."

The law has not gone to the full extent of regarding the presumption as based merely on logical inference. Almost universally it requires of rebutting evidence a strength or clearness greater in degree than that capable of rebutting the ordinary presumption of fact. 33 Har.L.Rev. 306, 307.

Professor Wigmore in his work on Evidence, Vol. 1, Sec. 164, in discussing the subject of birth during marriage to show legitimacy, states: "It is also true that, even where the birth occurs a year or more after the marriage, it is possible that the begetting intercourse was another man's, but it is still exceedingly more likely that it was that of B, the husband. Upon this likelihood is founded a rule of procedure, namely, the presumption of legitimacy (post #2527). No controversy of admissibility arises." Sec. 2527 of Vol. 4, Wigmore on Evidence, above referred to, states "that a child born of a married woman during wedlock is presumed to be the child of her then husband is uniformly conceded. The only doubt has been whether and how far this presumption is conclusive; i. e., to what extent is it a fixed rule of substantive law defining the legal quality of legitimacy," and in Sec. 2492, Vol. 4, of this same work on evidence, speaking of conclusive presumption, Professor Wigmore states as follows: "In strictness there can be no such thing as a 'conclusive presumption.' 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; and to provide this is to make 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. The term has no place in the principles of evidence (although the history of a 'conclusive presumption' often includes a genuine presumption as its earlier stage) and should be discarded." In 1 Elliott on Evidence, Sec. 93, it is stated: "When a presumption is called a strong one, like the presumption of legitimacy, it is meant that it is accompanied by another rule relating to the weight of evidence to be brought in by him against whom it operates." Also see Thayer, Prelim.Treat.Ev., pp. 336, 337, 563 and 576, and Starkie, Ev., tenth edition, *760.

It follows from the foregoing that when a child is born in wedlock the burden and degree of proof to establish illegitimacy is fixed by a rule of substantive law...