
    Florence E. Mayer, Respondent, v. Marian Davis and Others, Respondents, Impleaded with Charles R. Davis, Appellant.
    Second Department,
    April 19, 1907.
    Parent and child—presumption of legitimacy— evidence insufficient to establish bastardy.
    ' The presumption of legitimacy is one of the strongest known to the law and cannot be overthrown except by evidence stronger than the presumption. The ' burden of proof is,on the party asserting illegitimacy.
    Evidence of non-access of husband considered and
    
      Held, insufficient to establish illegitimacy. ", ■ -
    Appeal by the defendant, Charles R. Davis, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county .of Kings on the 25th day of May, 1906,
    . upon the decision of the court, rendered after a trial at the Kings County Special Term, adjudging that the said defendant is not an heir at law of William H. B^vis, deceased.
    The action is for the partition of real estate. William H. Davis, . grandfather, is the common ancestor. The appellant claimed an undivided share as the son of Robert Davis, deceased, who was a son of the said William H. Davis. There are two other tenants in common-who are the children of another deceased son of the said William II. Davis. Their mother, Mellie Bavis, is living. The mother of the appellant died on February 1, 1900.
    The appellant was born on-April 16, 1881. His mother was the wife of the said Robert Davis, deceased, whom he claims for father. He died in the Kings County Hospital of phthisis before the. appellant’s birth, viz., on August 18, 1880. - He was received there July 2, 1880, and remained there continuously in a public ward which had 16 other beds, all occupied and attended by'nurses and physicians, until’ lie died. He married liis said, wife in 1874 or 1875, and she bore him two children in his lifetime, but they-.did not' survive him.
    Mel lie Davis, the said mother of the two. tenants in common other than the appellant, was the second wife of their said, father, the brother of the appellant’s father. Her deceased sister was his first* She testified that the said Robert Davis was taken to-the said hospital from the home, of her said sister and the latter’s then husband in Brooklyn; that he had been there continuously “ about two months” before being taken to such hospital; that she was living there all the while and helped to take care of him; that he was there without his wife; that, the latter never came there to see him; that he never went out of the house while there; that he was not able to walk without assistance from his bed to his chair; that he coughed and expectorated terribly and was so poor that he was only, skin and bones; that he was brought there in a cab by his said brother (the husband -of her sister and afterwards her husband) from the place in Brooklyn where he and liis wife were living together, in. order ' that he might be better taken care of. Her other sister, -who then lived in another house in the neighborhood with her. husband, testified, that she saw him there in his said brother’s house also. She gives the same description of his health, says she helped to take care of him there, and also that he was there “ about two months.”
    The trial court-decided that the appellant was a‘bastard.
    
      Harry E. Lewis, for the appellant.
    
      Thomas M. Rowlette, for the respondents.
   Gaynor, J.:

The usual or.average period of human gestation, i. e., from the beginning of pregnancy to- the maturity of the foetus, when delivery should and -usually does'take place, is 10 lunar months, or 40 weeks, i. e., 280 days. The period from intercourse to- delivery • may not -be identical with that of gestation, but much longer. There is much literature, ancient and modern, in favor of the claim that this latter period may normally last 11 calendar months, especially to-save a widow and her tardy offspring from anything worse than suspicionbut it has scarcely survived the .immortal satire of Rabelais (B’k 1, ck. 3). Pregnancy does not always take place and gestation therefore begin at the time of intercourse but several days (even more than a week, respectable medical writers' say) lately when the. ovum has become ripe to receive the male seed, which retains its vitality in the generative tract meanwhile. By making . allowance for this in reckoning back from the- birth of a child, and also for the several days, at least, that delivery may be postponed beyond the usual period of gestation, i.. e., after ¡the growth of the foetus, lias become complete, from .10 to, 20 days may be easily added (Coke On Lit. by H: & B., p. 123 b., n. 1 & 2 ; 2 Greenl. on Ev. sec. 152; Bonv. L. D. vol. 1 [Rawl. Rev.], p. 882; Herold on Legal Med. chap. 40; Lusk on Midwifery, p. 108 ; Am. Text Book of Obstetrics, p. 176). Hence 300 days from the time Of last possible access is generally established by statute on the continent of Europe as the period to determine legitimacy (Code Napoleon, art. 312). In this State-a whole year has long been established by statute as the period in proceedings for the support of bastards (1 R. S. p: 641-; Code Crim. Pro. sec. 838).

The appellant was born only 241 days after his father’s death. But it is claimed that his father did hot have access to his mother for; 3 calendar months and 17 days preceding his death. This claim, if true, would, lengthen the period from the latest possible time of intercourse to the time of delivery 108 days more, i. e., to 349 days, and present a serious case of legitimacy. It rests on the testimony of the mother of the two co-tenants of the appellant, who are contesting his legitimacy. ■ She testified that his father lived' in the house of his brother, then the husband of her sister, and after-wards her husband and the father of her said children, for “ ab'out two. months” before he was taken to the-hospital, where sexual access to his wife was impossible, and where, he died of phthisis after-about six weeks (47 days); that she also lived in her said sister’s family at the same time, and helped to take care of him ; that he never went out while living there, and that his wife never came'there to visit him. This is the testimony of a biased and hostile witness,'and also improbable in itself. The testimony.is that he was brought by his brother to the latter’s house from the house where lie and his wife were living together (evidently iii poverty owing to his sickness), for better care. ÍSTo' estrangement existed between them, nor any reason why his wife should abandon him, so far as appears. And the length of time is left in uncertainty. The witness, testifying from unaided memory after the lapse of over twenty-five years, gives it as “ about ” two months. We all know how natural it is for a biased witness to stretch weeks into months, even without intending to falsify, especially after such a lapse of time. Except for this testimony, and some slight corroboration by a sister of the witness who visited the house; and testified that the time was “about” two months, the legitimacy of the appellant is not even blown upon.

The presumption of fact of legitimacy is one of the strongest known to the law, and of course it cannot be overthrown except by evidence which is stronger. The burden of proof is on the party asserting illegitimacy, and tlie rulé in a case like the present one has been declared to be “that to bastardize the issue of a .married woman, it must be shown.beyond, all reasonable doubt that there was. no such access as could have enabled the husband to be the father of the child ” (Cross v. Cross, 3 Paige, 139; Van Aernam v. Van Aernam, 1 Barb. Ch. 375; Caujolle v. Ferrié, 23 N. Y. 90; Matter of Matthews, 153 N. Y. 443; Br. .& Had. Com. Am. Ed. p. 384, n, and cases cited; Lawson on Presumpt. Ev. p. 108). The feeble, and indefinite evidence relied on here is evidently insufficient. If 28Ó days be taken as the period of gestation, there were within it 39 days of possible sexual access of the appellant’s parents before his father went to the hospital, and if 300 days be taken as the period allowed from the latest opportunity of access to delivery, there were 59. The father could therefore have been at his brother’s house without access to his wife for several weeks — for nearly six weeks — before going to the hospital without the legitimacy of the appellant being jeopardized. . Who will say that even an honest recollection of two months after the lapse of nearly twenty-six years may not be just as safely taken for five weeks, or even much less ?

The hospital doctor testified that he could say tliat during the last, two months .of life of a man in the father’s state of health it was improbable but not impossible that he could beget a child. Mot only was this evidence far from conclusive, but it left out the previous mouth and .17 days,

That the appellant’s mother did not make known, his birth to her .deceased husband’s kin 'is of no significance, .for they liad ignored her . from the beginning. They never met her except at hei; husband’s grave on'the day of the. funeral, and they left her there. The appellant did go ..to his grandfather and his uncle in Ms boyhood and announce Ins kinship...

The .judgment-should be reversed, •

. Hirschbérg, P. J., Hooker,' Rich ánd Miller, JJ., concurred.

Judgment reversed and hew trial granted, costs to abide the final award of costs. .  