Whipple v. McKew
| Decision Date | 23 May 1933 |
| Citation | 60 S.W.2d 1006 |
| Parties | WHIPPLE v. McKEW et al. |
| Court | Tennessee Supreme Court |
Bachman, Wilkerson & Wilkerson, of Chattanooga, for complainant.
Sizer, Chambliss & Kefauver, of Chattanooga, for defendants.
The complainant claims to be the legitimate son and sole heir of Willis Whipple, deceased, and as such entitled to his whole estate, valued at $34,000.
The chancellor and the Court of Appeals concurred in finding that complainant was the natural son of Willis Whipple, but that the latter and the mother of complainant were never married. The evidence to sustain this finding is abundant, and is conclusive upon this court.
The assignments of error are directed solely to the finding that the parents of complainant were never married.
The theory of complainant in this court seems to be that he is presumed to be legitimate, and therefore the burden rests upon defendants to show by clear and convincing testimony that his father and mother were never married; that the other courts did not follow this rule in weighing the testimony, but simply found that complainant was not entitled to the relief sought because he had failed to show a marriage between his father and mother by a preponderance of the evidence. In other words, complainant insists that the burden was on the defendants to show his illegitimacy by clear and convincing evidence, which they have not done; while defendants contend that the burden was on complainant to show his legitimacy, which he failed to do.
The rule as to burden of proof and presumptions in such cases is thus stated in 3 Ruling Case Law, p. 725:
From the foregoing it appears that the burden is on complainant to establish legitimacy, and we find a number of cases supporting this rule and none to the contrary.
It is also stated in the above text...
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...33 S.W. 613; Wilkins v. McCorkle, 112 Tenn. 688, 80 S.W. 834; City National Bank v. Barnes, 164 Tenn. 450, 51 S.W.2d 503; Whipple v. McKew, 166 Tenn. 31, 60 S.W.2d 1006.' Freeman v. Felts, 208 Tenn. 201, 210, 344 S.W.2d 550, In Lazenby v. Universal Underwriters Insurance Co., 214 Tenn. 639,......
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