Wilson v. Babb

• Decision Date: 09 August 1882
• Citation: 18 S.C. 59
• Parties: WILSON v. BABB.
• Court: South Carolina Supreme Court

18 S.C. 59

WILSON

v.BABB.

Supreme Court of South Carolina.

Aug. 9th, 1882.

1. A child born in lawful wedlock is presumed to be legitimate until the contrary be shown, even where born so soon after marriage that it could not have been lawfully begotten; but in such case, the evidence of illegitimacy is not required to be so strong as in other cases. This rule should be applied by the courts with a cautious regard to the peace of society and the happiness and reputation of families.

2. Any competent testimony bearing upon this question is admissible, and, if it satisfies the mind, is sufficient.

3. Impotency of the husband, impossibility of access, or cohabitation of the wife with another man, are not the only facts competent to establish the illegitimacy of a child born in wedlock.

4. A finding by the Circuit judge of the fact of the illegitimacy of a child born four and one-half months after marriage, sustained.

Before FRASER, J., Laurens, July, 1881.

Action for partition of a tract of land of which J. Newton Bolling died seized. Elizabeth Wilson and others, children of James and Lucinda Johnson, were plaintiffs, and the defendants were, at first, Tandy M. Babb, administrator de bonis non of J. N. Bolling, and Amanda Bolling, widow; and after her death, Tandy Babb, as heir-at-law of the widow of J. N. Bolling, and the widow and children of Melmoth Babb. Tandy and Melmoth Babb were brothers, and only heirs-at-law of Mrs. Bolling. Mrs. Bolling survived her husband, and her brother, Melmoth, survived her. The brief gives no dates.

The testimony was as follows:

Martin Arnold-Am connected with the family; know Elizabeth Wilson, Sarah Monroe; they were acknowledged to be children of James Johnson and Lucinda Johnson; she was also the mother of Henry Johnson; Henry Johnson was a brother to petitioners; Henry Johnson and J. N. Bolling called each other brother.

??.-Reside in Greenville county; Lucinda Johnson was the mother of Elizabeth Wilson and Sarah Johnson; never heard her claim to be the mother of J. N. Bolling; knew the parties for forty years; well acquainted with petitioners; Mrs. L. Johnson raised them.

William Ellison-I know Elizabeth Wilson and Sarah Monroe; they were said to be children of Lucinda Johnson; am connected with the family by marriage; knew J. N. Bolling; he was said to be a son of Lucinda Johnson.

??.-Reside in Laurens county; it was said by neighbors and connections that J. N. Bolling was a son of Lucinda Johnson; Mrs. Perrit said, during her life, that J. N. Bolling was a son of Lucinda Johnson; Mrs. Perrit and Mrs. Johnson were sisters.

Martin Arnold, recalled-Know that Mrs. Perrit and Mrs. Johnson were sisters; J. N. Bolling was raised by old Mrs. Bolling.

??.-Heard Mrs. Perrit and Mrs. Johnson say they were sisters; old Mrs. Bolling was the mother of Mrs. Johnson and Perrit.

Wesley Latimer-Know J. N. Bolling; heard him say that Lucinda Bolling was his mother; Lucinda Bolling was the wife of James Johnson; heard Mrs. Isabella Latimer, my former mistress, say that J. N. Bolling was taken from his mother when very small; Mrs. Latimer and Mrs. Bolling were closely connected after her marriage with Johnson; Mrs. Johnson had other children-Sarah, who married Monroe; Elizabeth, who married Wilson, and others.

??.-It was in Greenville county I saw Mr. Bolling, some twenty-two or twenty-three years ago, when he told witness that Mrs. Bolling was his mother; can't recall any other conversation that then took place between them; frequently saw before-mentioned at Mrs. Johnson's; they called her ma; Mrs. Latimer said to witness, the child was carried away when very small, but did not say where from.

Josiah Sullivan-I know J. N. Bolling; Lucinda Bolling was his mother, who afterwards married James Johnson; did not know the Johnson boys; when they were play-boys together, heard J. N. Bolling say Lucinda Bolling was his mother; he (Bolling) then lived at the old Bolling place.

??.-Knew J. N. Bolling well; were play-boys together; witness is over seventy years old; saw Mr. Bolling frequently after we grew up; did not know the Johnson boys; it was when they were boys heard J. N. Bolling say Mrs. Bolling was his mother.

Phyllis Bolling-I knew J. N. Bolling well; Lucinda Bolling was his mother; was born after her marriage with James Johnson; I knew both J. N. Bolling and his mother well.

??.-Witness belonged formerly to mother of Mrs. Bolling; carried a letter from Esquire Dunklin to James Johnson, saying he would take the child and its mother too; I carried the child to my home at Mrs. Abby Bolling's, but the mother stayed; I have heard J. N. Bolling say Mrs. Lucinda Johnson was his mother; he was then a good-sized boy; have heard Mrs. Johnson say J. N. Bolling was her son; Mr. Johnson is dead; witness was not at Mr. Johnson's for several days after the birth of the child.

??.-Witness went for the child; got it at Mr. Johnson's house, and from the bed with Mrs. Johnson; Mrs. Johnson said it was her child, but that Mr. Johnson would not allow her to “suckle” it; witness raised the child at Mrs. Abby Bolling's; lived with him after he was grown; saw him after death; and knew him to be the same J. N. Bolling.

Mrs. Ann H. Sullivan-Knew Newton Bolling and his mother; Bolling was born, I think, in 1808 or 1809; his mother was then married to James Johnson; I knew Elizabeth, daughter of James and Lucinda Johnson; she married John Wilson; and Sallie, another daughter, married Francis Monroe; did not know the other children; am not related to Newton Bolling; knew his grandmother; lived near her and visited her; Lucinda was at my house several times.

??.-Lucinda was never married, except to James Johnson; about time of Newton's birth, I saw Phyllis carrying the child to his grandmother's, Mrs. Abigail Bolling; and also heard Mrs. Kinman, the midwife, speak of the circumstances of his birth about 1808 or 1809.

Nathaniel Gaines-Knew J. N. Bolling; report said he was son of Lucinda Bolling, born after her marriage with James Johnson.

??.-My recollection is, that James Johnson and Lucinda Bolling were married in the latter part of the summer or early fall of 1809; about four and a half months after, the child, J. N. Bolling, was born; recollect the date from the fact that my (witness) father died November 6th of that year; recollect the birth from the fact, as reported then, that Mrs. Kinman, the midwife, on that occasion, attempted to pacify Mr. Johnson by telling him that four and a half months for himself, and four and a half months for his wife, made the full nine months; was familiar with the Bolling family from a short time before said marriage; do not recollect to have heard said family, or Johnson, or his wife, speak of the child; was frequently at James Johnson's in 1809 and 1810; was there a few weeks after the birth of said child; did not, at any time, see the child or hear the family speak of him; my father and Johnson's mother were brother and sister; I have heard the Johnsons speak of the birth of the child, and his removal by order of James Johnson; I never saw or heard of the child, J. N. Bolling, being at Johnson's, or having any communication whatever with his family; never heard Johnson say why said child was taken away; from frequent visits, I know the child was not nurtured by his mother, and was never recognized as a member of the Johnson family.

??.-Knew the Bolling family from shortly before said marriage; saw James Johnson and Lucinda Bolling on one occasion at a neighborhood gathering, but did not see them associating together.

FOR DEFENSE.

Tandy Babb-Am acquainted with defendant; is his sister; she married Josiah N. Bolling; I have heard members of the Bolling family speak of Josiah N. Bolling; it was said by them that he was a son of James Dunklin; I have frequently heard Maj. T. C. Bolling (cousin of Josiah N. Bolling, and nephew of Lucinda Bolling,) say that James Dunklin was the father of the said J. N. Bolling, and was so recognized by the whole family, and there was a striking resemblance between them; the Bolling family regarded J. N. Bolling illegitimate; I never saw James Johnson; J. N. Bolling, my brother-in-law, never recognized the Johnsons as his family.

??.-Josiah N. Bolling lived in Laurens county; married Amanda Babb, my sister, the defendant in this case; was never married but once.

Amanda Bolling-Was the wife of Josiah N. Bolling; never heard him speak of himself as the son of James Johnson; have heard him frequently say he was not; Josiah N. Bolling showed me a house, and said his father lived there, and his name was James Dunklin; does not know that Lucinda Bolling was ever married.

Phyllis Bolling-Knew Lucinda Bolling well; lived on same plantation with her; four or five months after her marriage, the child, J. N. Bolling, was born; the mother kept the child some three days after birth, before it was sent away; Mrs. Johnson sent the child away because Mr. Johnson would not allow it to remain; would not allow her to “suckle” it; because, as he said, it wasn't his child; frequently heard the Bolling family say James Dunklin was the father of the child.

??.-Josiah N. Bolling was the son of Lucinda Johnson; witness lived with Bolling family before said parties were married; saw them married; Johnson came courting a very short time-perhaps three months.

B. Gunnels-I have heard Mary Perrit and her husband say that James Dunklin did not deny, but said there was no doubt but that he was the father of Josiah or Newton Bolling; Mary Perrit was a sister of Lucinda Johnson.

Andrew McKnight-Thornberry Bolling said to me that Josiah N. Bolling was an imperfect child, and he intended to give all his property to him and one other; said James Dunklin was his father; I heard Samuel Bolling speak of James Dunklin as the father of the child, and fought on the subject; I have heard James Dunklin say that he was the father of J. N. Bolling; J. N. Bolling has said...