I dissent.
The policy of the law has always been to favor legitimacy and to prevent, except upon the most convincing proof, the *Page 102 bastardization of a child born to a married woman. I believe the opinion of Mr. Justice Olney, in which all of my other associates concur, forsakes this oft-declared policy and is moreover against the letter of our statute. I believe this decision, as a result of which a woman is permitted successfully to attach the stigma of illegitimacy to her little boy, will stimulate many similar efforts on the part of others who desire to spend the money left by deceased bachelors.
The presumption arising because of the ancient policy of the law to which I have referred above is well set forth in an opinion written by the learned author of the prevailing opinion in this case. I refer to Estate of Walker, 180 Cal. 484,181 P. 792. In the opinion in that case (at page 794) I find the following language: "There is no doubt but that the presumption of legitimacy goes at least to this extent: That if it appear that by the laws of nature it is possible that the husband is the father (that is, if it appears that the husband had intercourse with the mother during the period of possible conception), legitimacy is conclusively presumed, and no guessing or weighing of probabilities as to paternity because of relations between the mother and other men will be permitted." In the opinion delivered by Mr. Justice Victor E. Shaw upon the former appeal in that case (Estate of Walker,176 Cal. 402, [168 P. 689]), he quoted, approvingly, the following language from Powell v. State, 84 Ohio St. 165, [36 L. R. A. (N. S.) 255, 95 N.E. 660]: " 'Public policy requires that the status of a child born or begotten in lawful wedlock should be fixed and certain, and the immediate exigencies, or even the apparent justice, of any particular case, will not justify a departure from the rule so necessary and salutary to the best interests of society. The law is not willing that a child shall be declared a bastard to suit the whim or purpose of either parent, nor upon evidence merely that no actual act of intercourse occurred between husband and wife at or about the time the wife became pregnant.' " Continuing, Mr. Justice Victor Shaw used the following language: "Before such a child can be adjudged a bastard, the proof must be clear, certain, and conclusive, either that the husband had no powers of procreation, or the circumstances were such as to render it impossible that he could be the father of the child." The court cited the following authorities: Dennison v. Page, 29 Pa. St. *Page 103 420, [72 Am. Dec. 644]; Kraus v. Kraus, 98 Mo. App. 427, [72 S.W. 130]; Orthwein v. Thomas, 127 Ill. 554, [11 Am. St. Rep. 159, 4 L. R. A. 434, 21 N.E. 430]; Egbert v. Greenwalt,44 Mich. 245, [38 Am. Rep. 260, 6 N.W. 654]; Ewell v. Ewell,163 N.C. 236, [Ann. Cas. 1915B, 373, 79 S.E. 509]. (It is to be noted that, through a printer's error, the last-quoted sentence, as appears on page 410, 176 Cal., is erroneously credited to the opinion in Powell v. State, supra.) It is true that the old English rule known as the "quattuor maria rule," which conclusively assigned legitimacy to a child born to a married woman while the husband was within the four seas, except upon proof of his impotence, has been modified by modern decision. Generally, courts have adopted the rule laid down by Lord Langsdale to the effect that "the presumption may be wholly removed by proper and sufficient evidence showing that the husband was impotent; entirely absent, so as to have no intercourse or communication of any kind with the mother; entirely absent at the period during which the child must, in the course of nature, have been begotten; or present only under such circumstances as afford clear and satisfactory proof that there was no sexual intercourse." (3 R. C. L. 727.) This rule, however, is still based upon the presumption arising from the policy of the law in favor of legitimacy. That policy was in existence when subdivision 5 of section 1962 of the Code of Civil Procedure was adopted. That subdivision declares that "the issue of a wife cohabiting with her husband, who is not impotent, is indisputably presumed to be legitimate." Read in view of the policy of the law in favor of legitimacy, it seems to me that this subdivision means that the issue of a wife, born within the possible period of gestation after proven access of her husband, he being not impotent, is indisputably presumed to be legitimate. Mr. Justice Olney, in the prevailing opinion, concedes that the subdivision applies to the issue of a wife cohabiting with her husband at the time of conception. Let us suppose that in the present case the period of separation of the spouses instead of ten months had been nine. It seems to me that under the logic of the opinion the child would be conclusively presumed legitimate, for the case would then be like that of a husband living with his wife during all of the usual period of gestation. In such a state of facts I take it the paternity might not be impeached by a showing that the *Page 104 infant was small and probably a child born eight months after conception. What reason is there for preventing inquiry in possible cases of subnormal pregnancy and permitting it in instances of that which may be abnormal? I can see none. Undoubtedly, in the operation of subdivision 5 of section 1962 of the Code of Civil Procedure, some children who are actually bastards will be held legitimate without power on the part of anyone to attack their standing in that regard. But that is in accord with the policy of the law which looks not to the possible foisting of a child upon a husband who might not have been the father, but seeks to prevent all possibility of a legitimate child having the stain and sorrow of illegitimate birth unjustly attributed to it as a sinister inheritance.
Does the unquestionable presumption of legitimacy cease with the period of 280 days after the last cohabitation of man and wife, that being, as we are informed, the average period of gestation? If not, when does the whole matter become open to the court's inquiry. Is it open to full inquiry on the two hundred and eighty-first day or any day thereafter on which a child shall be born to the woman? Would this court sustain a finding that the child in this ease was illegitimate if, instead of a little more than three weeks, the birth had passed the average period by only a day? If not, when would the passage of time become sufficient to justify such a finding? Would it be one minute after three hundred days, since we are told that instances of pregnancy of more than three hundred days are "entirely beyond the usual order of things?" Is the period covered by the indisputable presumption subject to the guessing of each judge of the superior court who may have a problem of this sort, he to be governed not by the testimony of experts but by such knowledge of the laws of nature as he may be able to acquire from medical works to which he may have access? These are questions no one of which is answered by the prevailing opinion.
Suppose, for illustration, a case exactly like this, except that instead of being true to one lover, after deserting her husband, the woman had possessed half a dozen to whom she had yielded herself very soon after the desertion.
According to the logic of the opinion it would then be the duty of the court to guess whether the husband, the deceased lover, whose estate was sought, or some one of the living but *Page 105 possibly impecunious Don Juans, was the father, or, as someone jestingly said at the oral argument, whether or not the baby was "of the progeny of a syndicate." It seems to me that many evils must flow from the announced rule of this court and that the wisdom of extending the presumption of the statute to the utmost possible period of gestation is enforced by the illustration.
If the matter of legitimacy or bastardy is one purely of fact, to be drawn from the evidence adduced as in any other case, then the presumption of intercourse from possible access should be abolished; but this court upholds the doctrine ofEstate of Mills, 137 Cal. 298, [92 Am. St. Rep. 175,70 P. 91], and by it supports the conclusion that the husband and wife had sexual relations on the last night on which they were together, which is founded, as was declared in the opinion in that case, upon "good morals and public policy." To allow cohatiting married people thus to impeach the legitimacy of children born in wedlock would be, as well stated in the opinion in Estate of Mills, "to allow evidence which shocks every sense of decency and propriety." Yet in the case at bar evidence quite as shocking was permitted, namely, the statement of Mrs. Bettencorte regarding her alleged menstrual periods. This is the sort of testimony which may be manufactured without fear of contradiction. Its admission puts a premium upon perjury. In the case at bar it is evident that one of the controlling elements of the finding of the probate court was the testimony of the woman regarding her menstrual periods. Such testimony should have been excluded under what I believe to be the true interpretation of subdivision 5 of section 1962 of the Code of Civil Procedure.
All of these considerations make me adhere to the doctrine now repudiated by this court but expressed so clearly and forcibly by Mr. Justice Olney in the opinion in the Walker case that I venture to quote it here a second time (following the pious example of clergymen who sometimes emphasize a text by repetition):
"There is no doubt but that the presumption of legitimacy goes at least to this extent: That if it appear that by the laws of nature it is possible that the husband is the father (that is, if it appears that the husband had intercourse with the mother during the period of possible conception), legitimacy is conclusively *Page 106 presumed, and no guessing or weighing of probabilities as to paternity because of relations between the mother and other men will be permitted." (The italics are mine.)
Rehearing denied.
All the justices concurred, except Melvin, J., who dissented.