Scanlon v. Walshe

Citations

• 81 Md. 118
• 31 A. 498
• 1895 Md. LEXIS 32

Syllabus

<p>Presumption as to Legitimacy of Children Born in Wedlock. — Proof of Illegitimacy. — Estoppel of Parent. — Legitimation by Subsequent Marriage. — Exceptions to Evidence in Equity.</p> <p>A child bora in lawful wedlock, when non-access of the husband is not established, is' presumed to be legitimate, and neither the evidence of the mother nor of an adulterer is admissible to prove that the child is not the offspring of the husband.</p> <p>In a bill for a divorce from her husband, S., the plaintiff, alleged that certain children were the issue of the marriage, and the decree awarded their custody to her. Subsequently, in a petition for a change of name, the plaintiff averred that after being divorced she had married W., and asked that the names of the children “born to her and her said husband,” S., might be changed to W., which was accordingly ordered. Some years afterwards, upon the death of W. intestate, plaintiff claimed that these children were not the offspring of her former husband, S., but of W.; that after her marriage with W., he acknowledged them to be his children, and that consequently, under Code, Art. 46, sec. 29, such marriage and acknowledgement made them the legitimate childrem of W. At the time the children were born, it was not shown conclusively that S. had no access to plaintiff. Heldi</p> <p>1st. That the evidence of the plaintiff and the declarations of W. were not competent to show that the children were not the legitimate children of S., and also that the evidence generally was not strong enough to overcome the presumption expressed in the maxim, pater est quem nuptiae demonstrant.</p> <p>2nd. That the marriage of the plaintiff and W., and the latter’s acknowledgment of the children, were not, under these circumstances, evidence of their illegitimacy.</p> <p>3rd. That in cases under the above statute, the fact of illegitimacy must be first proved, and then marriage and acknowledgment may be offered to show paternity.</p> <p>4th. That the p