Strode v. Magowan's Heirs
| Decision Date | 05 December 1865 |
| Citation | 65 Ky. 621 |
| Parties | Strode, & c., v. Magowan's heirs. |
| Court | Kentucky Court of Appeals |
The above is the residuary clause of the will. The testator left no descendants, and his estate was claimed by the descendants of a sister of the whole blood, and of a brother of the half blood. The descendants of the sister resisted the claim of the descendants of the half-brother, on the ground that he was not a legitimate half-brother. Held by the Court --1. The law presumes that every child in a Christian country is, prima facie, the offspring of a lawful union of the parents, and that the mother, by actual marriage, or by cohabitation and recognition, was the lawful wife of the father; and in the absence of negative evidence, no supplemental proof of legal marriage will be necessary to legitimate the offspring. 2. Mere rumor is insufficient to bastardize issue, or require positive proof of actual marriage. If the presumption of legitimacy be false repellant facts may be generally established; and if no such fact can be clearly proved, the presumption from mere filiation should stand. 3. " Reputation, " in order to have any legal effect on a question of this sort must originate in the family, or from the conduct or declarations of relatives presumed to know the truth, and to be disparaged by it. 4. The testator treated the descendants of his half-brother, who it was alleged was illegitimate, as legitimate, and manifested great affection for them as such. He kept and cherished two of them in his family, and treated them with peculiar confidence and affection as nephew and niece as long as he lived; and whether their father was in fact legitimate or not, the testator considered them as of the class of his " lawful heirs."
APPEAL FROM FLEMING CIRCUIT COURT.
HARRISON TAYLOR and HARLAN & HARLAN, For Appellants,
CITED--
7 B. Mon., 132; Kuhl vs. Knauer.
2 Brock., 256; Stigall vs. Stigall.
3 A. K. Mar., 294; Finlay vs. Humble et al.
3 A. K. Mar., 326; Birney vs. Huren.
1 Greenleaf's Evidence, sec. 28, note 2.
2 Starkie's Evidence, 196, part 17, Am. ed., Bastardy.
15 Geo. R., 155; Wright vs. Hicks.
6 How. Rep., 550; Patterson vs. Gaines.
W. H. CORD, On same side
CITED--
7 B. M., 132; Kuhl vs. Knauer.
8 B. M., 612; Remington vs. Lewis.
13 B. M., 371; Jones vs. Letcher.
2 Greenleaf on Evidence, sec. 462.
3 Greenleaf on Evidence, sec. 461.
Gresley's Equit. Evidence, 318.
18 Vesey, 443; Walker vs. Wingfield.
10 Clark & Finnell, 471; Rolson vs. Atty. Genl.
1 Maddock, 430; Beachcroft vs. ______.
4 Per. & D., 193; Doe vs. Bunyon.
2 Merivale, 419.
2 Pr. Williams, 136; Harris vs. Lincoln.
4 Russell, 384.
3 Blackstone, 212; Newbury vs. Meade.
1 Vesey, 313 Beard vs. Travers.
1 Bullen, 295.
T. C. CAMPBELL, On same side,
CITED--
3 Johnson ; Jackson vs. Blanshon.
1 Hawkins, 239, 384, 385.
1 Greenleaf's Ev., secs. 570, 21, 142.
4 Dana, 423; Bennett vs. Runyon.
6 Dana, 110; Cook's heirs vs. Totter's heirs.
3 A. K. Marshall, 326; Birny vs. Hann.
2 Starkie's Ev., 833, title Pedigree.
Randall's Peake, 11.
4 Mon., 367; Taylor vs. Whiting.
4 J. J. Mar., 651; Bank vs. Johnson.
5 J. J. M.; Currie vs. Fowler.
2 Starkie, 833.
Matthew's Presumptive Evidence, 284.
8 B. M., 511; Remington vs. Lewis.
STANTON & THROOP, E. C. PHISTER, and DANL. K. WEISS, For Appellees,
CITED--
2 Lee, 244; Taylor vs. Taylor.
4 Bradford, 85.
Best on Presumptions, 57-8.
Hubbeck on Successions, 248-58.
7 B. M., 132; Kuhl vs. Knauer.
4 Bradford, 85; Ferries vs. Public adm'r.
8 B. M., 612; Remington vs. Lewis.
8 B. M., 113; Donnelly vs. Donnelly.
5 Barbour, 215; Clayton vs. Wardel.
2 House of Lords Cases, 331; Piers vs. Piers.
2 House of Lords Cases, 566; Morris vs. Davies.
1 Lee, 571; Taylor vs. Taylor.
1 Lee, 271; Lady Mayo vs. Brown.
1 Dessaussure's Equity R., 595; Johnson vs. Johnson's ex'r.
9 Smith's N. Y. R., 94; Canjoble vs. Ferrie.
4 Bradford, 28.
26 Barbour, 177.
1 Penn. R., 452; Senser vs. Bower.
6 Howard, 819; Patterson vs. Gaines.
4 Johnson, 52; Fenton vs. Reed.
8 B. M., 113; Donnelly vs. Donnelly.
5 J. J. Mar., 460; Sneed vs. Ewing and wife.
3 Dana, 232; Storer vs. Boswell's heirs.
3 A. K. Mar., 369; Dumarsly vs. Fishly.
2 Kent, 86-7.
Butler's Nisi Prius, 112.
28 Law Jour. Rep., 745; Goodman vs. Goodman.
4 Bing., 266; Doe vs. Fleming.
Law Register, May, 1865, 418.
Burrill on Cir. Ev., 39 th ed., 1859.
Robertson's Scrap Book, 218.
3 A. K., 326; Birney vs. Hann.
13 B. M., 371; Jones vs. Letcher.
1 Greenleaf on Evidence, 116, secs. 103-107.
2 Smith's Leading Cases, 119 (10 East ); Hingman vs. Ridgway.
13 Vesey, jr., 147; Vowles vs. Young.
13 East, 574; Whitlock vs. Baker.
1 Philips on Evidence, 238.
Mathews on Presumptive Evidence, 271.
2 Saunders on Pleading and Evidence, 58.
Cowper's Rep., 591; Stevens vs. Moss.
1 Gilbert's Evidence, 279.
1 Wheaton's Selwyn's Nisi Prius, 615.
2 Bingham, 86.
4 Randolph, 611; Gregory vs. Baugh.
2 Conn. Rep., 348; Chapman vs. Chapman.
4 N. H. Rep.; Waldron vs. Tuttle.
7 Curtis, 605 (1 Peters, 337); Elliott vs. Piersol.
Littell's Select Cases, 24; Nicholas vs. Landsdale.
1 Starkie and notes, 7 Am. ed. from 3 d Lond. ed., 1842.
4 B. & A., 376.
2 M. & L., 337; King vs. Netherthong.
1 Blackf., 162; Henthorn vs. Doe.
Martin & Yerger, 228; Hawes vs. Peck's lessee.
2 Munf., 129; Roberts vs. Stanton.
7 Wend., 371; Hewlett vs. Cork.
MSS. Opinion, Winter Term, 1861-2; Means vs. Fairburn et al.
A. DUVALL, On same side,
CITED--
Best on Presumption, 57.
Wigram on Wills.
Abram Magowan, of Fleming county, Kentucky, who died in the year 1863, without a surviving descendant, made the following disposition of a residual portion of his estate, of the value of about two hundred thousand dollars, by his will, published in the year 1858:
This testamentary document, anomalous as it is, is constructively legatory; but its inappropriate use of technical words indicates that the testator did not understand the legal import of the terms " heirs-at-law, " any more than of the term " inherit. " And extraneous facts may therefore determine whom he considered his " heirs-at-law" and intended to be his devisees.
This suit in equity was brought by the executor to obtain a judicial settlement of that problem.
Numerous descendants of the testator's full and legitimate sister, Nancy Strode, mother of the pretermitted Johnson Strode, were made defendants as indisputable devisees. The only other persons who claim a beneficial interest under that devise are the descendants of William Magowan, who died about thirty years ago, was the recognized half-brother of the testator, and was born in Berkley county, Virginia, in 1769, about three years before the intermarriage of the father and mother of the testator and of his said sister Nancy.
But the appellees, descendants of that sister, assuming that by " lawful heirs" the testator meant his legitmate heirs, deny the legitimacy of the said William Magowan; and on that issue the parties made elaborate preparation by voluminous depositions and other evidence.
On the final hearing the circuit court adjudged to the appellees, as the legal descendants of William Magowan, the portion of half bloods; and the descendants of Nancy Strode, not content with that distribution, appeal to this court for a reversal.
The habitual recognition of the said William by the testator's father as his son, and by the testator himself as his brother, and also by his other brothers, all now dead without issue, and the like recognition by many of the appellants of said William's children as their cousins, are sufficiently established by proof. But these prescriptive recognitions do not necessarily prove that he was either the full or the legitimate half-brother of the testator. It is undeniable, however, that he was only a half-brother, and we concur with the circuit court in the conclusion that the legal probabilities preponderate in favor of his legitimacy.
For obvious reasons, the law presumes that every child in a Christian country is, prima facie, the offspring of a lawful rather than of a meretricious union of the parents, and that, consequently, the mother, either by actual marriage or by cohabitation and recognition, was the lawful wife of the father, and, in the absence of any negative evidence, no supplemental proof of legal marriage will be necessary to legitimate the offspring. Mere rumor is insufficient to bastardize issue or require positive proof of actual marriage. If the presumption be false, repellant facts may be generally established; and if no such fact can be clearly proved, the presumption from mere filiation should stand.
In this case the repellant evidence, when closely analyzed, is but...
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