
    Bowles v. Bingham.
    
    Saturday, November 26th, 1811.
    Illegitimacy — Evidence—Declarations of Husband.  — A husband’s declarations that a child born in wedlock is not his. are not sufficient evidence to prove it illegitimate; notwithstanding it was born only three months after the marriage, and a separation, between his wife and him, soon after took place, by mutual consent.
    James Bingham, administrator of Harriett Bowles, (who departed this life, intestate, an infant under the age of twenty-one years, being the daughter of Sally, wife of Peter Bowles, and born in wedlock,) filed his bill in the superior court of chancery for the Richmond district, against Peter Bowles, Mary Anne Blythe, maternal grandmother of the said Harriett, and several infants, (her next of kin,) defendants, by John Woody, their guardian; setting forth the right of the said Harriett to sundry property to which the said Peter Bowles would have been legally her heir, if, in fact, he had been her father; but charging that, when his wife was delivered of the said child, (which was in April, 1798, the marriage *having taken place the January preceding,) he “asserted that he was not its father, and resolved to repudiate his wife, but previously prevailed on her to designate the real father of her said child, on her oath before a justice of the peace, and, before such justice, she swore that another mau, whom she named, and not the said Peter Bowles, her husband, was its father;” after which transaction, an instrument of separation, bearing date the 13th day of May, 1798, was executed between them, and recorded in the county court of Hanover.
    The bill farther stated, that Sally Bowles, having lived for several years in such state of separation from her husband, departed this life on the 8th day of E'ebruary, 1802, leaving the said Harriett her only child and heiress, who died on the 12th day of September, 1805; that the plaintiff qualified according to law as her administrator, and needed the protection of a court of equity, to prevent his being injured by the interfering claims, of the defendants, upon her estate. He therefore prayed an injunction to restrain the relatives of the said Harriett, and every of them, as well as the said Peter Bowles, until the final decree in this cause, “from proceeding at law against him the said administrator, for the recovery of any estate, late of the said Sally, before her intermarriage with the said Peter, and also from interrupting his administration in the recovery of what- were then her rights, in his character of administrator of all and singular the goods, &c. whereunto the said Sally was entitled at the time of her death, which are considered by her relatives to have then been cast upon the said Harriett, as her daughter, heiress,' and distributee, and from the said Harriett, upon them, as her heirs and distributees;” which injunction was accordingly granted.
    The defendant, Peter Bowles, in his answer, “admitted *that he always insisted that the said Harriett, though born in wedlock, was not his child: but as, by the law of the land, the said Harriett would have been entitled to claim as his heir, if she had survived him, he thinks that he hath right to insist that the property, which belonged to her mother, and afterwards to her, shall be considered as vesting in him.” He therefore prayed a decree for the said property.
    The joint and several answer of the other defendants contained a statement of the grounds of their claim analogous to that set forth in the bill.
    The indenture of separation (among the exhibits) did not expressly mention the circumstance which induced the parties to sign it, but only that “the most convincing cause had taken place which rendered it impossible that they the said Peter and Sally should live in happiness together as becomes man and wife.”
    By the terms of that instrument, the parties agreed that “all the property, of whatsoever denomination, which she the said Sally Bowles brought, by virtue of the said marriage, to the said Peter Bowles, should be restored, and put into the hands of Mary Anne Blythe, for-the use of the said Sally Bowles; that she should be considered as acting as a feme .sole, and no longer as a feme covert, and he as no longer her husband; that he should not. be liable for any debts hereafter contracted, by her, nor for her maintenance, or support, under any circumstances whatsoever;. and that she should never claim, or demand, any part of his estate, in right of dower,, distribution, or otherwise.”
    No depositions were taken in the cause.. Chancellor Taylor, on the 19th of March,. 1807, “being of opinion that the illegitimacy of the said Harriett was fully proved that she, if living, could not, in the event of the death of the said Peter' Bowles, succeed to any part of his estate as heir j and that he, therefore, in the event which has happened, cannot, as such, succeed to any *part of the estate of the said Harriett; and, more especially,, as it would be against the true intent and-meaning of the articles of separation, in the bill mentioned, which are considered as binding in equity; therefore decreed that the injunction be made perpetual as to the said Peter Bowles and those claiming under him; that the plaintiff, as administrator of the said Harriett, make distribution of her estate among her next of kin on the part of her mother; and liberty is reserved to the said administrator, or any one, or all, of the parties, except the said Peter Bowles, to resort to the court for any further directions in the settlement, or division of the said estate j and that the defendant Peter Bowles pay the costs.” ’
    Prom this decree Peter Bowles appealed; and James Bingham having after-wards departed this life, the appeal was. revived against John Woody, administrator de bonis non of Harriett Bowles.
    Wickham, for the appellant,
    laid it down, ¿s an invariable rule that a child born in lawful wedlock is legitimate; unless a physical impossibility of procreation, or of access be proved, or there be strong evidence of non-access. In support of this, he quoted Com. Dig. tit. Bastard, (B.) and 2 Bl. Com. 446, and as to the evidence of access, or non-access, he observed that declarations, or admissions of the parties, are not to be received after marriage,  to prove that they had had no connexion, and that the offspring was spurious. The marginal note to Goodright v. Saul, 3 T. R. 356, (which states that “the child of a married woman may be proved to be a bastard by other evidence than that of the husband’s non-access,”) is wholly .unsupported by the case itself. The decision was, only, that the question of access, or non-access, ought to have been left to the jury.
    
    In 2 Burn’s Ecc. Daw, 431, it is said, the sole confession *of the parties is not admissible to prove adultery. There is a difference, however, between the question of adultery, and that of illegitimacy ; for the mother may be convicted of adultery, and yet the child be legitimate. If the husband might have had access to the wife, he is not permitted to disavow the child, unless it was naturally impossible for him to be its father. Such is the doctrine, I believe, in every civilised nation. 
    
    The consequences of a contrary rule would be pernicious indeed. Declarations •of this sort, by a husband, may be occasioned by unfounded jealousy; and since they are not to be used against him, in •case he chooses to retract them afterwards, (which he may do, upon discovering his ■error,) the rule must be reciprocal.
    I cannot discover any authority showing a difference in relation to this point, between a child begotten before marriage, and born afterwards, and a child begotten and born in wedlock.
    Warden, contra. The husband, by his answer, declared the child not bis; and though he swore to this, and the child was born only three months after the marriage, he claims the estate as heir of that child!
    All Mr. Wickham’s cases, except that from Com. Dig. relate to circumstances occurring during the marriage, whereas, in this case, the child was begotten before. Is not the evidence of the husband and wile, both declaring there was no access, as conclusive as any other proof of non-access can be? Besides, the deed bars him from claiming any of the property of Sally Bowles. There never was a case in which law would be made more clearly consonant to reason than by affirming this decree.
    Wickham, in reply. The defendant has not sworn in his answer that the child was not his. He only says *that he always insisted so; without averring that those assertions of his were true. If the question, whether the child was actually his, had been put to him by the bill, he would not have been •obliged to answer it, but might have demurred. He might, perhaps, have refused to answer concerning his own former declarations.
    The deed -of separation says nothing .about the legitimacy or illegitimacy of the child. Peter Bowles does not claim against the deed; nor any thing inconsistent with it: he claims the property, not as that of Sally Bowles, but as that of Harriett. Whether the title of the child was derived from the mother, or not, is unimportant; the property is admitted on all hands to have belonged to the child at the time of her death; and he claims as her heir.
    If every allegation in the bill were established by testimony, the whole would be inadmissible to prove illegitimacy. The law will rather permit a particular injury, than encourage a general inconvenience. If this man should get by inheritance what he is not entitled to, (the child, in reality, not being his.) he will have been poorly compensated for his sufferings of body and mind, occasioned by the infidelity or his wife.
    
      
       For the opinion of the court in the principal case, see Appendix to 3 Munf. 599.
    
    
      
       Legltimacy Issue Born (luring Wedlock. — The issue born during wedlock will be held to be legitimate, unless it be conclusively shown that a person other than the husband must necessarily and unavoidably have been the father. Watkins v. Carlton, 10 Leigh 575, citing the principal case.
      See further, monographic note on “Parent and Child” appended to Armstrong v. Stone, 9 Gratt 102.
    
    
      
       Note. See Peake's Law of Evidence, p. 182, 18 3, and p. 1112.
    
    
      
       Goodright v. Moss, Cowp. 594.
    
    
      
       2 Peake’s Ev. 358.
    
   Wednesday, December 4th. The President pronounced the opinion of the court that the aecree be reversed, and the injunction made perpetual against all the defendants, except the appellant; and “it was decreed that the appellee, John Woody, administrator de bonis non of Harriett Bowles, deceased, deliver over to the appellant the estate of the said Harriett, upon his entering into bond, payable to the appellee, Woody, with security to be approved of by the said court of chancery, in such penalty as that court may direct, conditioned to refund the said estate, or such part thereof as may be necessary, towards payment of such debts as the said Woody may hereafter be compelled to pay for the estate of the said ^Harriett; and that William Barker,” (executor of Mary Anne Blythe, one of the appellees, as to whom the appeal, which had abated by her death, had been revived,) “out of the estate of the said Mary Anne Blythe, deceased, in his hands to be administered, (if so much thereof he hath,) and the appellees, (except John Woody,) pay to the appellant his costs by him expended in the said court of chancery. And liberty is reserved to the appellant, and the appellee, Woody, to resort to the said court of chancery for any further directions in the settlement of the said estate. ”  