Kleinert v. Ehlers

• Decision Date: 11 March 1861
• Citation: 38 Pa. 439
• Court: Pennsylvania Supreme Court
• Parties: Kleinert <I>versus</I> Ehlers.

38 Pa. 439

Kleinert versus Ehlers.

Supreme Court of Pennsylvania.

March 11, 1861.

ERROR to the Common Pleas of Schuylkill county.

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Meyer Strouse, and F. W. & J. Hughes, for plaintiff in error, as to the legal meaning of the word access, cited Dennison v. Paige, 5 Casey 423; Banbury Peerage Case, 33 Law Lib. 436, — and argued, that the court erred in using the word to indicate merely a meeting of the parties, and yet attached to it the legal rules which govern its legal meaning of "sexual intercourse;" in effect instructing the jury, that access can be disproved only by showing facts which make it a physical impossibility.

That access was not to be presumed, merely because the parties were within such distance that it was possible: Shelford on Marriage and Divorce 711, 3 Law Lib. 433; Clarke v. Maynard, 6 Madd. 364, 8 East 193. That where husband and wife were living in such habits of intercourse, as that the husband might be the father of the child, this presumption may be rebutted and disproved: 33 Law Lib. 432; 32 Law Lib. 434.

The effect of the record of the decree of divorce was wrongfully restricted by the court below to evidence of mere desertion; while, to authorize the decree, not only desertion, but absence from his habitation for two years, must have been established by proof.

This decree was conclusive on the parties and their privies, the persons who claim as their children, and it embraces separation and total abandonment: 1 Bouvier's Law Dic. 413; Webster's Dic. "Desertion." It could have been defeated by proof of temporary cohabitation and sexual intercourse, but it was evidence which tended to rebut the evidence of access, and the court erred in saying, that as to the legitimacy of Ann Elizabeth Ehlers, no evidence was necessary other than the legal presumption; notwithstanding their divorce, and the fact that they lived more than one hundred miles apart.

D. B. Green, E. O. Parry, and T. Cuyler, for defendants in error, contended that the instruction of the court as to the presumption of legitimacy, when there was a possibility of sexual intercourse, was correct; citing Dennison v. Paige, 5 Casey 424; Head v. Head, 1 Sim. & Stu. 150; Banbury Peerage Case, Id. 153; Bury v. Philpot, 2 Milnes & Keene 349; Cross v. Cross, 3 Paige 139; Morris v. Davis, 3 Car. & Payne 215, 278.

As to the decree of divorce, it was argued, that the children were not to be affected by it so as to deprive them of support, or destroy their claim to the estate of him who, after their birth, instituted proceedings for divorce on the ground of the mother's desertion. They were neither parties nor privies to it, nor was there in it any question involving the maternal or paternal relation. The fact of his repeated visits to her while in Philadelphia, and of cohabitation there, is sufficient to raise the presumption of legitimacy in favour of the daughter also.

The opinion of the court was delivered, March 11th 1861, by WOODWARD, J.

This was a feigned issue to try the legitimacy of George and Ann Elizabeth Ehlers. If legitimate, they were the rightful heirs of their deceased father; if not, his estate would belong to the plaintiff in error as next of kin.

First, as to the legitimacy of George. The putative father, August Ehlers, was married to the admitted mother, Mary Rupp, on the 4th March 1835. What time George was born was disputed in the evidence. The testimony of Moses Strouse tended to fix the date of his birth as early as September — that of Mrs. Theresa Ritz as late as December ensuing the marriage — but Mrs. Ehlers, the mother, swore that he was born on the 28th November 1835. This would be but six days short of nine months from the...