Scanlon v. Walshe

Fowler, J., delivered the opinion of the Court. It is fortunate that Courts of Justice are seldom called upon to consider a case in which the facts are so shocking to every sense of decency and morality as those presented by the record now before us. We shall not attempt, in this opinion, to discuss with any particularity the testimony which, we think, justifies this remark, for the view which has been forced upon us, after careful consideration, renders such an uninviting task altogether unnecessary. On the 26th March, 1891, David J. Walshe, of Baltimore City, died, leaving a will disposing of his personal property and one-third of his real estate and intestate as to the balance of his real estate, which latter consisted of, by far, the larger and more valuable part of the property known as the Mansion House, on the northwest corner of Fayette and St. Paul streets, in said city.

A bill was filed in the Circuit Court of Baltimore City by Carlotta ¹²⁸ Walshe, for the sale of said real estate, against a number of persons claiming to be heirs at law of her husband, David J. Walshe, three of them being her own children, born while she was living in lawful wedlock with a former husband, and the others being sisters and the children of a deceased sister of said Walshe. Proper proceedings were had, and, by agrfeement of' parties, the whole property was sold for the sum of seventy thousand dollars, which sale was duly confirmed. By a pro forma order, the Court below ratified Auditor’s Account B, by which the sum of $25,795.41 was allowed to three children of the plaintiff as their share of the proceeds of sale. From this order the sisters and the children of a deceased sister of Walshe have appealed.

And the question is, who are the heirs at law of David J. Walshe ? There are two sets of claimants, first, two sisters and several nephews and nieces, and secondly, the plaintiff’s three children, the youngest of whom is about twenty-four years of age, who, although bom while their mother was married to and living in lawful wedlock with her first husband, Florian V. Simmons, from whom she was divorced, claim to be the children of said Walshe, whom she after-wards married, and his heirs at law, because subsequent to their birth their mother and their alleged father married, and he acknowledged them to be his children. A contention, whose foundations are so contrary to good morals, public policy and the presumption of law, can be maintained only by some statute which not only introduces “a new law of inheritance,” as our own statute does (Brewer v. Blougher, 14 Pet. 178 , opinion by Ch. J. Taney), but which, to bring this case within its terms, must also abrogate some rules of evidence which we are not inclined either to weaken or destroy.

The statute upon which the appellees, the children of Carlotta Walshe rely to maintain their contention, is section 29, Article 46 of the Code, which provides that “if any man shall have a child or children by any woman, whom he shall afterwards marry, such •child or children, if acknowledged by the man, shall, in ¹²⁹ virtue of such marriage and acknowledgement, be hereby legitimated and capable in law to inherit and transmit inheritance as. if born in wedlock. This section was before this Court for construction in the case of Hawbecker v. Hawbecker, 43 Md. 516 , where a married man had by his wife four children born in lawful wedlock, and during the life of his wife he also had six children by another woman. His wife died, and he subsequently married the mother of the last mentioned children, whom he acknowledged as his, and treated them as he did the children of his. first wife. It was very earnestly contended in that case,, that the section above quoted should not be construed so as. to include within its terms a case in which children are conceived and born when their parents are under impediment to marry.

But it was held that although the Legislature, no doubt, in thus mitigating the severe rule of the common law, intended to hold out to the surviving parents an inducement to marry, and thus put a stop to the further illicit intercourse between them, yet “the main purpose and intent of the enactment * * * was to remove the taint and disabilities of bastardy from the unoffending children, when-, ever their parents did many, without regard to the deepness of guilt on the part of their parents.” And in, concluding the opinion, the language of Chief Justice Taney in the case of Brewer v. Blougher, supra, to the same effect in relation to the same provision of law, is quoted approvingly. We said, “the Legislature has not seen fit to make any exceptions to its operation. Its terms embrace every case where “any man shall' have a child or children by any woman whom he shall afterwards marry.” Hawbecker v. Hawbecker, supra. It will be observed, however, that in the case we have last cited, there was no question whatever made as to the paternity or illegitimacy of the children who were admitted to have been born out of wedlock.

It was assumed that the reputed was the real father, and that the children were illegitimate; and the only question was whether the law was applicable to ¹³⁰ the admitted facts. But here we have a different condition. Indeed this is the very opposite to Hawbecker’s case. For while the force of the broad terms of the law is here admitted, it is contended that the foundation facts — the facts of illegitimacy and of the alleged paternity — are not established at all, because, first, the witnesses are incompetent, and secondly, even if competent, their evidence is not of that strong, distinct, satisfactory and conclusive character which is required to overcome the presumption expressed in the common law rule “Hares legitimus est quern nuptial or another expression of the same rule, “Pater est quem nuptia demonstrante The old rule in England was, and also in this country, i Greenleaf on Evidence, sec. 28, that this presumption of legitimacy was conclusive, but it is said the Courts did not long permit so violent an estoppel. 1 Bishop on Marriage, Divorce and Separation, sec. 1170.

This legal presumption has been characterized as the foundation of every man’s birth and status and of the whole fabric of human society, and no where has its full force and extent been so fully acknowledged and so well expressed, as in the case of Hargrave v. Hargrave, 9 Beav. 553, by Lord Langdale, the then Master of the Rolls, decided in 1846. He says, “A child born of a married woman is in the first instance presumed to be legitimate. The presumption thus established by law is not to be rebutted by circumstances, which only create doubt and suspicion; but it may be wholly removed by proper and sufficient evidence showing that the husband was, 1. Incompetent. 2.

Entirely absent, so as to have no intercourse or communication of any kind with the mother. 3. Entirely absent at the period during which the child must, in the course of nature, have been begotten, or 4. Only