Sergent v. North Cumberland Mfg. Co.
| Decision Date | 06 March 1902 |
| Citation | 112 Ky. 888,66 S.W. 1036 |
| Parties | SERGENT et al. v. NORTH CUMBERLAND MFG. CO. [1] |
| Court | Kentucky Court of Appeals |
Appeal from circuit court, Harlan county.
"To be officially reported."
Action by Milton Sergent and others against the North Cumberland Manufacturing Company for partition of land and allotment of dower. Judgment for defendant, and plaintiffs appeal. Reversed.
B. M Lee, for appellants.
O'REAR J.
Appellants Milton and Millard Sergent, are twin children of appellant Mary Sergent. They were born in June or July, 1877. Ephraim Sergent, Sr., owned a tract of 400 acres of land in Harlan county at his death in December, 1876. Eight of his children (but not including appellants) in 1884 conveyed their interests in this land, which has, by subsequent conveyances, come down to appellee. Appellant Mary Sergent was the widow of Ephraim Sergent, Sr. Her two children, appellants Millard and Milton Sergent, joined her in bringing this suit in 1898 for a partition of the land claiming dower for the widow and an undivided one-tenth each for the two children. Appellee defended upon the alleged grounds that Mary Sergent, by adultery, had forfeited her right to dower, and that the two boys named were not the children of the decedent, Ephraim Sergent, Sr. An issue was joined upon the question of the legitimacy of the sons. The court, upon the pleadings, and without proof, dismissed appellants' petition. This was error. The answer charged that Ephraim Sergent, Sr., at the time of his death, was 80 years of age; that for 6 months before his death he had been in very feeble health, and unable to turn himself in his bed that during that time appellant Mary Sergent was guilty of adultery with divers men; that at no time within 10 months before the birth of these two sons had the putative father been physically able to perform the sexual act, and that he did not do so. It was not charged that his wife was living apart from him, or that they had not been in cohabitation during that period up to his death. As a general rule, a child born in lawful wedlock, when its mother is living with her husband, and they have opportunity for coition, is conclusively presumed to be legitimate (Greenl. Ev. § 28; Strode v. Magowan's Heirs, 2 Bush, 626); this is so even though it may be shown also that the wife during the time was guilty of infidelity (Cope v. Cope, 1 Moody & R. 269, 276; Morris v. Davies, 3 Car. & P. 215; Rex v. Luffe, 8 East, 193). This presumption of the legitimacy of such offspring is founded not alone upon the coincidence of probabilities, but as well upon that policy of the law that forbids either husband or wife testifying to occurrences between them during marriage; also upon its supreme regard for those privileges of the married state that all men instinctively withhold from the public knowledge. If the question of legitimacy were oven to such attack, to be sustained or defeated by a mere preponderance of evidence, based largely and most frequently upon circumstances alone, the right of inheritance, the integrity of blood, the pride of ancestry, and its just sense of honor, all would depend upon the most dubious of titles. From the very nature of the case, positive evidence in support of the legitimacy must be the most difficult to be adduced. The law does not allow its inquiries to invade the privacy of the connubial couch for any such purpose. When husband and wife enter it, it must be held that its privileges are not subject of investigation, to the end that its reasonable and legitimate fruits may be brought into question. Exceptions to the general rule stated are...
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