Shelley v. Smith

• Decision Date: 03 May 1968
• Docket Number: No. 200,200
• Citation: 249 Md. 619,241 A.2d 682
• Parties: Jean L. SHELLEY et al., etc. v. Larry James SMITH, etc.
• Court: Maryland Court of Appeals

Page 619

249 Md. 619

241 A.2d 682

Jean L. SHELLEY et al., etc. v. Larry James SMITH, etc.

No. 200.

Court of Appeals of Maryland.

May 3, 1968.

Carl A. Durkee, Pikesville, for appellants.

D. Franklin McGinnis, Bel Air, for appellee.

Before HAMMOND, C. J., and HORNEY, MARBURY, BARNES, McWILLIAMS and SINGLEY, JJ.

McWILLIAMS, Judge.

In 1777, during the Easter Term of the Court of King's Bench, Goodright ex dim. Stevens v. Moss et al., ¹ came on for a hearing before William Murray, first Earl of Mansfield, then the Lord Chief Justice, Mr. Justice Afton and Mr. Justice Willes. Lord Mansfield 'was inspired-apparently by some brooding omnipresence in the sky' ²-to declare:

'* * * the law of England is clear, that the declaration of a father or mother, cannot be admitted to bastardize the issue born after marriage.' Id. at 592.

'* * * it is a rule founded in decency, morality and policy that they shall not be permitted to say after marriage, that they have had no connection, and therefore that the offspring is spurious; more especially the mother who is the offending party.' Id. at 594.

His lordship had a long and distinguished career at the bar, on the bench, in the House of Commons, in the House of Lords and in the administrations of his day, little of which is now remembered. His monument, in the eyes of American lawyers, is the rule set forth above. Although much adverse critical comment ³ has been aimed at the Lord Mansfield rule it has, until our decision today, been embedded in the law of Maryland, at least since Craufurd v. Blackburn, 17 Md. 49 (1861). Its subsequent history will be found in Hawbecker v. Hawbecker, 43 Md. 516 (1876); Scanlon v. Walshe, 81 Md. 118, 31 A. 498 (1895); Howell v. Howell, 166 Md. 531, 171 A. 869 (1934); Harward v. Harward, 173 Md. 339, 196 A. 318 (1938); Hale v. State, 175 Md. 319, 2 A.2d 17 (1938); Hall v. State, 176 Md. 488, 5 A.2d 916 (1939); Dayhoff v. State, 206 Md. 25, 109 A.2d 760 (1954); Clark v. State, 208 Md. 316, 118 A.2d 366 (1955); Note, The 'Lord Mansfield Rule' As To 'Bastardizing The Issue', 3 Md.L.Rev. 79 (1938); Note, The 'Lord Mansfield Rule' And The Presumption of Legitimacy, note 3 supra. As a result of the extensions, modifications and refinements accomplished by our decisions since Craufurd, supra, including those just cited, the rule just prior to 1 June 1963 was:

(a) When a child is born to a married woman the presumption is that the husband is the father, but the presumption may be rebutted by proper evidence; (b) neither the wife nor the husband may testify to non-access at critical dates and neither they nor the paramour can give testimony that will bastardize the child, until non-access be shown by other testimony; (c) if non-access is so shown, either husband or wife may testify to any other relevant facts, even though the child will thereby be bastardized, such as intercourse of the wife with another man and the identity of the father; and (d) the proof need not be of impossibility of access but only testimony so clear, satisfactory and convincing as to convince the trier of fact that the husband did not have intercourse with his wife at a time when conception of the child in question would have been possible. Goodman v. State, 236 Md. 257, 259, 203 A.2d 695 (1964).

In 1960 the General Assembly adopted a joint resolution calling upon the Governor to appoint a commission to study the problems of illegitimacy. The commission, among other things, recommended (in its report filed 6 December 1961) that there be included in the proposed statute a provision that 'a married woman and her husband may both testify as to his nonaccess and other relevant matters in the wife's paternity action against another man, thus abrogating 'Lord Mansfield's Rule' as to these proceedings.' (Emphasis supplied.) By Chapter 722 of the Laws of Maryland of 1963 (after Art. III, sec. 38 of the Constitution had been amended) the General Assembly enacted Code, Art. 16, §§ 66 and 66A to 66P (both inclusive). See. 66F(b), under the general heading 'Paternity Proceedings,' provides in part, under the sub-heading 'Hearing without a jury; competency to testify; burden of proof,' as follows:

'When any bill or petition filed under this subtitle shall allege, or the court shall determine after the commencement of proceedings thereunder, that the child's mother was married at the time Sec. 66F (b), under the general that the child is the legitimate child of her husband may be rebutted by the testimony of persons other than the mother and her husband that, at the time the child was conceived, the mother was in fact living separate and apart from her husband, and it shall not be necessary to establish the nonaccess of the husband. After the court shall have determined that the child's mother and her husband were not living together as man and wife when the child was conceived, both the mother and her husband shall be competent to testify as to the nonaccess of the husband when the child was conceived or to any other relevant matter.' (Emphasis supplied.)

In Corley v. Moore, 236 Md. 241, 203 A.2d 697 (1964), an appeal from a decree in a paternity proceeding (pursuant to the provisions of § 66F), Chief Judge Henderson, for the Court, said:

'Under the old law, now repealed, neither the wife, the husband, nor the paramour was competent to testify as to nonaccess. See Clark v. State, 208 Md. 316, 321, 118 A.2d 366, 57 A.L.R.2d 718, et seq., where Judge Hammond for the court in an able and exhaustive opinion traces the evolution of the so-called 'Lord Mansfield rule'. * * * Clearly, the rule is relaxed under the new law.'

'We find no requirement in the statute (§ 66F) that proof of nonaccess must be clear and convincing, as the appellant contends. In this connection it may be noted that in the bill as introduced, the burden of proof was stated to be 'to establish by evidence so clear, satisfactory and convincing as to raise in the mind of a reasonable and unprejudiced person a natural inference that the defendant is the father * * *.' This was deleted in the passage of the bill, and the language quoted above was substituted. The only proof necessary is that the husband and wife are living separate and apart; it is not necessary to establish nonaccess. Once the fact is established that they are living separate and apart, the wife can testify as to nonaccess, or any other relevant fact. The burden of proof throughout is the same that is applied in other civil cases, to establish the ultimate fact of paternity, in issue under the pleadings, by a fair preponderance of affirmative evidence.' (Emphasis supplied.) Id. at 244-246, 203 A.2d at 699.

Cf. Baker v. Lease, 236 Md. 246, 203 A.2d 700 (1964).

Appellants contend that the chancellors' (Jenifer and Haile, JJ.) disregard of the Lord Mansfield rule, besides being wrong, will be productive of 'fearful' results. The principal question before us, therefore, is to what extent, if at all, the Lord Mansfield rule, as modified, applies to the case before us, the facts of which are as follows.

Virtually all of the people involved in this matter hail from the vicinity of either Freeland or New Freedom. Freeland is in Baltimore County quite near the Pennsylvania line. New Freedom is just across the line in York County. Herbert Smith married Gladys Orwig on 12 December 1925. They parted in March 1935. In May 1936 Smith filed a bill for a divorce a vinculo against Gladys in the Circuit Court for Baltimore County alleging adultery with Harry Shelley. Gladys gave birth to the appellee (Larry) on 10 December 1937. In March 1938, Smith was divorced a vinculo from Gladys. She had not interposed any defense.

On 17 September 1938 Gladys and Harry Shelley were married. They parted later on the same day. Gladys gave birth to Joyce Kathleen Shelley (now Sexton) on 20 December 1938. In April 1942 she was divorced a vinculo from Shelley, who made no defense. On 22 June 1963 Shelley died intestate. Surviving him besides Joyce, are Jean L. Shelley and Doris Shelley Hovermale, children by an earlier marriage. Letters of administration were issued to Jean and Joyce by the Orphans' Court of Baltimore County.

In June 1964 Larry filed his bill of complaint in the Circuit Court for Baltimore County against Doris, individually, and Jean and Joyce, individually and as administratrices. He alleged, in addition to circumstances tending to support his claim, in his second amended bill, that he is the son of Shelley and that he is entitled to share in his estate. Joyce elected not to defend and agreed to the entry of a decree pro confesso as to her.

The trial began 27 January 1967. Counsel for Larry offered in evidence the proceedings in Herbert R. Smith v. Gladys O. Smith, Equity #22740, in the Circuit Court for Baltimore County. The pleadings were admitted over the objection of appellants; the testimony was excluded. Counsel next offered the proceedings in State v. Harry Shelley, a criminal information, #7890, charging nonsupport, filed in the Circuit Court for Baltimore County on 23 May 1939. Shelley was convicted on 5 June 1939, by Judge C. Gus Grason (later a member of this Court) of the nonsupport of 'his minor children' Larry and Joyce. On the same day he signed a personal recognizance in which was recited the fact of his conviction of the nonsupport of 'his minor children' Larry and Joyce. The proceedings were admitted over the objection of appellants. Offered next was a certified copy of the proceedings in Shelley v. Shelley, No. 58, October Term, 1941, in the Court of Common Pleas of York County, Pennsylvania. The proceedings were admitted over the appellants' objection.

Early Flinchbaugh married the sister of Gladys. He testified that in 1936 and 1937 Herbert Smith was not living with Gladys.

Smith was produced as a witness on behalf of Larry. He said he was living with his parents during 1936 and 1937 and he declared that after he and Gladys were...