This suit was begun in the Circuit Court of Texas County on February 14, 1916. Its general object is to try the title to about one hundred and sixteen acres of land in said county, fully described in the petition, and of which one Timothy S. Bower died seized in 1910. At the time of his death he resided in Wichita County, Texas, where his personal estate was administered. He left a widow, Martha, who has since intermarried with one Graham, and is sued by that name. She has ever since been living on the land with her child, the defendant Mary Bower. The identity of the child's father is the sole subject of controversy in this case. If she is, in contemplation of law, for the purpose of inheritance, the daughter of Bower, she and her mother take the land. If not, his collateral heirs take it subject to her mother's interest as widow.
Bower's father and mother predeceased him. He left no other child, but, at the time of his death, had four brothers and four sisters. Two of these brothers, James M. Bower and William H. Bower, are the plaintiffs. Of the other six, one has refuse to join in the suit, one or two have died since the death of Timothy, and others cannot be located. They and their representatives in interest are all joined as defendants under the proper allegations.
The substantive facts upon which the issue stands, and which will be developed in detail as we proceed, are as follows:
One William D. Jackson and the defendant Martha Graham were married in October, 1896. Five children were born to them, four of whom survived, the youngest being about two years old at the beginning of 1909. The family lived at Hazleton in Texas County, where Mr.
Jackson had a store. They lived together as husband and wife until about the middle of August, 1908, when trouble arose between them, and Mrs. Jackson left him, taking her four children with her to the house of her sister in St. Francois County, where she remained until October of the same year. In September, after her departure from Texas County, Mr. Jackson instituted a suit for divorce against her in that county, alleging as grounds therefor desertion and indignities, but did not charge unchastity, nor in any way mention his children. This suit was not followed. On the contrary, he went to his wife in St. Francois County in October, was apparently reconciled with her, and brought her and her sister, with the children, back to his home in Texas County. Bower also was in St. Francois County at the same time, and both the sisters testified that when they went back home with Jackson there was an understanding with Bower that on their return divorces would be procured and that they could then be married to each other.
When Martha and her sister Caroline and the four little children arrived at the Jackson home in Hazleton, the family of seven, including Aunt Caroline, seems to have resumed a normal condition and might, perhaps, have continued to function like other well ordered families but for the fact that there was a still just over the Phelps County line, the lure of which had a strong attraction for the husband and father. Whether the return of his wife and children created a need for the cheerful product does not appear from the record, but it does show that he took to drink, and when Christmas time came he was in bed with "jim-jams," and, according to the testimony of his sister-in-law and a neighbor, fell into the drink habit, so that he was under its influence the most of the time. The newly reconciled wife refused to maintain conjugal relations with him, and did not, in fact, share his bed from that time until she left and returned to St. Francois County on or about March 1, 1909. During that time, according to the testimony
of both Martha and her sister, who spoke from her own observation, Mr. Bower visited her as often as twice a week, and when he was there would share her bed.
The final separation of the Jacksons took place about March 1, 1909. About that time Mr. Jackson filed in the Texas County Circuit Court his petition for divorce against Martha, which contained no charge of adultery, nor prayer for any relief on account of the children. At or about the same time Bower filed his petition for divorce against his wife, Orena. Both were heard at the May term, and decrees were granted as asked. The Bower decree was entered upon an agreement by which a farm with stock and other personal property, and one thousand dollars in secured notes, were adjudged to the wife.
Bower and Martha were married May 28, 1909. The child whose paternity is in dispute was born October 24, 1909. He was proud of the child. There is evidence tending to show that, although a girl, it resembled him.
I. It is well enough to have in mind at the very beginning that we are called upon to adjudicate the rights of the child Mary Bower and not to give virtuous expression to our own disapproval of the iniquities of the parents. The time is come which was, nearly three thousand years ago, predicted by a greatConception expounder of the moral law, when "every one shall dieBefore for his own iniquity: every man that eateth the sourMarriage. grape, his teeth shall be set on edge." [Jeremiah, ch. 31, v. 30.]
It is admitted in this record that notwithstanding all the disgusting details in evidence, the child was born in lawful wedlock, five months after the marriage of her mother with Bower.
In Gates v. Seibert, 157 Mo. 254, 272, this court said: "A legitimate child under our law is one born in lawful wedlock or of a widow within ten months after the death of her husband, or born before the marriage of its
parents who afterward marry, and receives the recognition of its father; and one such child is just as legitimate before the law as the other." We approved this definition in Breidenstein v. Bertram, 198 Mo. 328, and in Martin v. Martin, 250 Mo. 539, l.c. 545. In this case there is no question that this child was born in lawful wedlock, and therefore comes within the first definition, and is entitled to the presumption resulting from its birth, unless it is destroyed by the fact that the mother had been the wife of another when it was conceived, which the appellants say overcomes completely the presumption raised by its birth in wedlock. This is the propostion before us. It was before the Supreme Court of Illinois in Zachmann v. Zachmann,201 Ill. 380, in which it was held that the fact that, at the time of the conception of the child, the mother was the wife of another did not overcome the presumption arising from birth in wedlock. The case is interesting, and in many respects directly in point.
Before taking it up we will notice the provisions of Section 341, Revised Statutes 1909, relating to the status of children born before the marriage with each other of the parents. We lately had occasion to carefully consider this statute in the case of Busby v. Self, 284 Mo. 206, in which we said that in its enactment the Legislature spoke as the mouthpiece of the public policy of the State, and in this respect it is pertinent to the construction of the laws relating to the same subject as administered in this jurisdiction. We held, as we were bound to hold, that the words of this section meant what they said, and applied to adulterine issue. The mind of the Legislature is evident in the terms of this act. It did not embrace children born in lawful wedlock, because, under the law as it then existed, these were already legitimate.
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This suit was begun in the Circuit Court of Texas County on February 14, 1916. Its general object is to try the title to about one hundred and sixteen acres of land in said county, fully described in the petition, and of which one Timothy S. Bower died seized in 1910. At the time of his death he resided in Wichita County, Texas, where his personal estate was administered. He left a widow, Martha, who has since intermarried with one Graham, and is sued by that name. She has ever since been living on the land with her child, the defendant Mary Bower. The identity of the child's father is the sole subject of controversy in this case. If she is, in contemplation of law, for the purpose of inheritance, the daughter of Bower, she and her mother take the land. If not, his collateral heirs take it subject to her mother's interest as widow.
Bower's father and mother predeceased him. He left no other child, but, at the time of his death, had four brothers and four sisters. Two of these brothers, James M. Bower and William H. Bower, are the plaintiffs. Of the other six, one has refuse to join in the suit, one or two have died since the death of Timothy, and others cannot be located. They and their representatives in interest are all joined as defendants under the proper allegations.
The substantive facts upon which the issue stands, and which will be developed in detail as we proceed, are as follows:
One William D. Jackson and the defendant Martha Graham were married in October, 1896. Five children were born to them, four of whom survived, the youngest being about two years old at the beginning of 1909. The family lived at Hazleton in Texas County, where Mr.
Jackson had a store. They lived together as husband and wife until about the middle of August, 1908, when trouble arose between them, and Mrs. Jackson left him, taking her four children with her to the house of her sister in St. Francois County, where she remained until October of the same year. In September, after her departure from Texas County, Mr. Jackson instituted a suit for divorce against her in that county, alleging as grounds therefor desertion and indignities, but did not charge unchastity, nor in any way mention his children. This suit was not followed. On the contrary, he went to his wife in St. Francois County in October, was apparently reconciled with her, and brought her and her sister, with the children, back to his home in Texas County. Bower also was in St. Francois County at the same time, and both the sisters testified that when they went back home with Jackson there was an understanding with Bower that on their return divorces would be procured and that they could then be married to each other.
When Martha and her sister Caroline and the four little children arrived at the Jackson home in Hazleton, the family of seven, including Aunt Caroline, seems to have resumed a normal condition and might, perhaps, have continued to function like other well ordered families but for the fact that there was a still just over the Phelps County line, the lure of which had a strong attraction for the husband and father. Whether the return of his wife and children created a need for the cheerful product does not appear from the record, but it does show that he took to drink, and when Christmas time came he was in bed with "jim-jams," and, according to the testimony of his sister-in-law and a neighbor, fell into the drink habit, so that he was under its influence the most of the time. The newly reconciled wife refused to maintain conjugal relations with him, and did not, in fact, share his bed from that time until she left and returned to St. Francois County on or about March 1, 1909. During that time, according to the testimony
of both Martha and her sister, who spoke from her own observation, Mr. Bower visited her as often as twice a week, and when he was there would share her bed.
The final separation of the Jacksons took place about March 1, 1909. About that time Mr. Jackson filed in the Texas County Circuit Court his petition for divorce against Martha, which contained no charge of adultery, nor prayer for any relief on account of the children. At or about the same time Bower filed his petition for divorce against his wife, Orena. Both were heard at the May term, and decrees were granted as asked. The Bower decree was entered upon an agreement by which a farm with stock and other personal property, and one thousand dollars in secured notes, were adjudged to the wife.
Bower and Martha were married May 28, 1909. The child whose paternity is in dispute was born October 24, 1909. He was proud of the child. There is evidence tending to show that, although a girl, it resembled him.
I. It is well enough to have in mind at the very beginning that we are called upon to adjudicate the rights of the child Mary Bower and not to give virtuous expression to our own disapproval of the iniquities of the parents. The time is come which was, nearly three thousand years ago, predicted by a greatConception expounder of the moral law, when "every one shall dieBefore for his own iniquity: every man that eateth the sourMarriage. grape, his teeth shall be set on edge." [Jeremiah, ch. 31, v. 30.]
It is admitted in this record that notwithstanding all the disgusting details in evidence, the child was born in lawful wedlock, five months after the marriage of her mother with Bower.
In Gates v. Seibert, 157 Mo. 254, 272, this court said: "A legitimate child under our law is one born in lawful wedlock or of a widow within ten months after the death of her husband, or born before the marriage of its
parents who afterward marry, and receives the recognition of its father; and one such child is just as legitimate before the law as the other." We approved this definition in Breidenstein v. Bertram, 198 Mo. 328, and in Martin v. Martin, 250 Mo. 539, l.c. 545. In this case there is no question that this child was born in lawful wedlock, and therefore comes within the first definition, and is entitled to the presumption resulting from its birth, unless it is destroyed by the fact that the mother had been the wife of another when it was conceived, which the appellants say overcomes completely the presumption raised by its birth in wedlock. This is the propostion before us. It was before the Supreme Court of Illinois in Zachmann v. Zachmann,201 Ill. 380, in which it was held that the fact that, at the time of the conception of the child, the mother was the wife of another did not overcome the presumption arising from birth in wedlock. The case is interesting, and in many respects directly in point.
Before taking it up we will notice the provisions of Section 341, Revised Statutes 1909, relating to the status of children born before the marriage with each other of the parents. We lately had occasion to carefully consider this statute in the case of Busby v. Self, 284 Mo. 206, in which we said that in its enactment the Legislature spoke as the mouthpiece of the public policy of the State, and in this respect it is pertinent to the construction of the laws relating to the same subject as administered in this jurisdiction. We held, as we were bound to hold, that the words of this section meant what they said, and applied to adulterine issue. The mind of the Legislature is evident in the terms of this act. It did not embrace children born in lawful wedlock, because, under the law as it then existed, these were already legitimate. Their birth was as open and visible as was the marriage relation in which it occurred. Their conception involved an issue uncertain at its best and revolting in its details, and over which courts
have no ambition to preside unless necessary to the ends of justice. This healthy sentiment was evidently in contemplation of the Legislature when it inserted as a condition of its statutory legitimation, recognition of the child by the husband. It was aware of the presumption of legitimacy which attended every child born in lawful wedlock, and therefore carefully inserted the word "afterward." From this statute we cannot infer the absurd intent to give the natural child whose parents should postpone their marriage until after its birth an advantage over one whose parents had been more prompt in the performance of that duty. Its obvious intent was to preserve to the latter the advantage of the legal presumption arising from its birth in wedlock. In using the word "recognize" in the same connection, it deferred to the superior advantage of the natural parents of a child to judge of their own relation to it.
It is illogical to say that one who may adopt a stranger as his child and heir, should not be permitted, as against himself, to determine who is his natural child and heir. In Busby v. Self, supra, at page 215, we said on the subject: "So far as the guilty father is concerned, the marriage and recognition is equivalent to the adoption provided for by statute in other cases. . . . It will be noted that when the parties are married the act of the husband alone creates this relation, and his estate alone is involved in this proceeding." It is this principle which gives its controlling force to the presumption that a child born to the wife in the house of her husband is his child. This may not be true under all circumstances and for all purposes, but these appellants are claiming under Bower as his heirs, and are bound by the situation which he has created. His acknowledgment of paternity binds them, and that he heartily acknowledged it at all times after its birth is not only conclusively proven but is undisputed. From the vantage point of his own house
he has announced that he is the father of this child and no one has disputed him otherwise than with a presumption. That presumption having been destroyed, so far as available to the appellants, by the deliberate act of the one by whose right they claim, would seem to leave them no ground on which to stand in this appeal. We do not, however, think it improper to consider this record from the standpoint that the presumption arising from the birth of the child in lawful wedlock may be disputed by showing the fact to be otherwise.
II. The undisputed facts in the record leave no doubt in our mind of the paternity of this child. Its mother has testified that it is the child of the husband in whose house it was born. The competency of her evidence to prove her own adultery is challenged. There being an irreconcilable conflict ofDivorce by authority on this question we will put her evidenceAgreement. aside and, without an expression of our own opinion, only refer to the direct and positive testimony of her sister for the purpose of showing that evidence was invited by the respondents as to the conjugal relations of Martha with Mr. Jackson, her then husband, during the time covered by the inquiry. That Mr. Jackson was living and in the neighborhood at the time of the trial appears inferentially in the record.
Martha went with her four children to her sister in St. Francois County on August 15, 1908. Jackson instituted suit for divorce against her on September 19th. Sometime in October, both Bower and Jackson went to St. Francois County to see her. The result was that before the end of that month she took her children home to Texas County and tried Jackson again with unsatisfactory results. About March 1, 1909, both Jackson and Bower prepared and almost immediately filed suits for divorce against their respective wives. Judgment of divorce was rendered in each at the May term of the Texas Circuit Court. The suit of Bower was a friendly one, Mrs. Bower appearing by attorney, and
taking land, livestock and money in exchange for her unfaithful husband, who married his paramour immediately. Rejecting the uncontradicted testimony to that effect these admitted facts show that all these things were done by agreement between these four persons, Jackson and wife and Bower and wife, the last named being represented by one of the attorneys now before us in this suit; that after March 1, 1909, the law would imply no conjugal relation between Jackson and his wife by reason of the divorce suit pending between them, and that the statement in his petition that before it was filed her conduct had been such as to make it impossible for him to live with her would imply, as between Jackson and his wife, a previous hiatus in such relations.
We think that the evidence fails to overcome the presumption arising from the fact that the child Mary was born in lawful wedlock between her mother and Bower. This necessarily disposes of the whole case, and the judgment of the Texas County Circuit Court is therefore affirmed. Ragland and Small, CC., concur.