Shelley v. Smith

⁶²¹ McWilliams, J., delivered the opinion of the Court. 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 Atl. 498 (1895); Howell v. Howell, 166 Md. 531 , 171 Atl. 869 (1934); Honward v. Harward, 173 Md. 339 , 196 Atl. 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 ⁶²² 366 (1955); Note, The “Lord Mansfield Rule” As To “Bastardising 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 non-access 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. ill, sec. 38 of the Constitution had been amended) the General Assembly enacted Code, Art. 16, §§ 66 and 66 A to 66 P (both inclusive). <“Sec. 66 F (b), under the general heading “Paternity Proceed ⁶²³ ings,” 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 of the child’s conception; the presumption 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 § 66 F), 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 , 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 [§ 66 F] that proof of nonaccess must be clear and convincing, as the appellant contends. In this connection it may he 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 ⁶²⁴ 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. 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 ad ⁶²⁵ ministration 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 Plerbert 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 separated in March 1935 he never thereafter lived, had access to nor intercourse with her. He denied that Larry was his son. Pie said that in his bill for a divorce he named Shelley as the man with whom his wife had committed adultery and that Larry “positively” favored Shelley.

During 1936 and 1937, he said, Shelley “was going with” Gladys. He identified 27 letters (from Gladys to Shelley), later offered in evidence, as having been written by Gladys. ⁶²⁶ Larry testified he was “sometimes known as Larry Shelley.” He identified as his a school report certifying that “Larry Shelley” was eligible for promotion to the 8th grade. He identified also a certificate, dated 18 June 1948, recognizing the “faithful attendance and creditable work” of Larry J. Shelley at “Vacation Bible School.” At the time he said he was “going by the name of Larry Shelley” and that he was living with his mother, his sister Joyce, and James Robinson whom his mother had married after she divorced Shelley. The report and the certificate were admitted over appellants’ objection.

Offered next was a snapshot which Larry identified as having been taken by his “brother-in-law” in the summer of 1956 at Shelley’s farm. The notation on the back of the print, which Larry said he wrote in 1956, reads, “Sister Joyce & myself taken in Dads buggy summer 1956 at his farm.” There is no doubt they resembled each other when this picture was taken. The print was admitted over objection as was another one Larry said was taken at the same time showing a man seated on the ground holding two dogs. The notation, which Larry said he wrote at the time, reads, “Dad & his dogs summer on the farm 1956 Freeland Md.” When he was little, he recalled, his mother often took him and Joyce to the farm to see Shelley.

He believes Shelley was his father because “that is what * * * [his] mother always told” him. When he was older he visited Shelley “several times a month” occasionally helping him water a horse and put in corn. Jean Shelley testified she lived with her father until 1945 when she left home. Asked about Gladys’ reputation she said “it wasn’t a good reputation from the very point she and * * * [her] father were carrying on an affair while she was married.” She said her father “denied that either one of them [Joyce and Larry] was his children.” The letters, she admitted, were in Gladys’ handwriting, that her father had them, that the “Dear Harry” in the letters was her father and she would not deny they were written to him.

The 27 letters had been found by Larry and Joyce in the loft of the garage at the Shelley farm. They were received in evidence over the objection of appellants. The chancellors filed their opinion on 23 February 1967. The ■decree declaring Larry to be entitled to share in the distribution of Shelley’s estate as a son was dated 10 April 1967 and filed the same day. ⁶²⁷ I. Obviously the first question to be resolved is the admissibility vel non of the testimony of Smith.

If it must be excluded the chancellors’ finding that Shelley is the father of Larry cannot be sustained. If it is admissible then, considering it together with the remaining admissible evidence, we would be unwilling to say that the finding of the chancellors is clearly erroneous. Appellants, relying on Scanlon v. Walshe, et al., 81 Md. 118 , 31 Atl. 498 (1895), and the Lord Mansfield rule, contend it was error to admit Smith’s testimony. The case at bar is not, of course, the kind of paternity proceeding envisaged by Code, Art. 16, § 66 F and the relaxation of the Lord Mansfield rule, as set forth in § 66 F (b), at least at first blush, does not appear to be applicable to any but the special proceeding therein provided.

If this is indeed the case then a quite undesirable anomaly presents itself; viz., the existence of two different rules governing the resolution of identical issues of paternity, the Lord Mansfield rule in cases like the one before us and the § 66 F (b) rule in paternity proceedings under the statute. We think this should not be. It contravenes both good order and common sense. In this regard Judge Offutt’s comment in Hall v. State, 176 Md. 488, 497 , 5 A. 2d 916 (1939) seems especially relevant.

He said, for the Court: “It is undesirable however that there be different rules of evidence controlling the proof of the same fact in different proceedings, so what might be proved in a criminal proceeding could not be proved in a civil proceeding, and if any reasonable interpretation of the statute [Code, Art. 12, sec. 1 (1924)] will avoid that result it would be adopted.” Appellants lean more heavily on Scanlon v. Walshe, supra. In that case Carlotta Simmonds had been married to her husband for 17 years when, in 1875, she sought to divorce him. She alleged in her bill that she had 6 children by “said marriage,” aged respectively 15, 13, 11, 9, 7 and 5, and that her conduct had always been proper and above reproach. The decree divorcing her a vinculo from Simmonds and awarding her the custody of the 6 children was passed in November 1876.

In August 1877 ⁶²⁸ she married David Walshe. In July 1883 she filed a petition in the Circuit Court of Baltimore City, reciting her divorce and subsequent remarriage and the award of the custody of the children born to her and Simmonds and praying that the names of the 3 youngest children be changed from Simmonds to Walshe. She made affidavit to the truth of the representations in the petition and, in due course, an order changing the names of the 3 children was passed. Walshe died in 1891.

In his will there were bequests to her and “her three children” (the youngest three). Since the will, for some reason not explained, was not operative as to real estate, Carlotta filed a bill for the sale of the real estate and the distribution of the proceeds to herself and the 3 youngest children, claiming that Walshe was their father and that he had acknowledged them as his children. Carlotta testified that Walshe was their father. The lower court found for her and Walshe’s relatives appealed.

Our predecessors were of the opinion (in Scanlon) that the provisions of the statute 4 (legitimation by marriage and subsequent acknowledgment) applied only to “illegitimate” children and that the illegitimacy of the 3 youngest Simmonds children would first have to be proved before the provisions