(dissenting). I disagree with the conclusion announced by my associates in this case.
In my judgment the proof introduced in the trial court for the purpose of showing that the woman who calls herself Annie Asbury is not the daughter of Wesley Asbury, deceased, is sufficient, when viewed in the light of its acceptance by the trial court, to overcome the presumption of legitimacy upon which the conclusion announced in the majority opinion is based.
As stated in the majority opinion the sole ultimate question is whether the plaintiff is the child of Wesley Asbury. *443The presumption of legitimacy, which in addition to its common-law existence -is recognized by statute in this jurisdiction (10 O. S. 1941 §§ 1, 2, and 3), is of importance only for its probative force in connection with or in opposition to the proof introduced.
The foregoing sections of the statute were adopted at an early date by our Territorial Legislature. It is worthy of note that the presumption of legitimacy, although a strong one, under all of the decisions is not conclusive in nature, nor has our Legislature seen fit to demand any particular character of proof to overcome the presumption. On the contrary, it is provided in part by section 3, supra, that “illegitimacy in such a case may be proved like any other fact.”
At an early date this court, in Bell v. Territory, 8 Okla. 75, 56 P. 853, noted the discrepancy in judicial expressions as to the strength of the presumption and adopted a “middle ground” to test the sufficiency of evidence to overcome it. The test as adopted is something more than a mere preponderance of the evidence (the usual test applied to the plaintiff’s evidence in a civil action), but less than proof necessary to satisfy beyond a reasonable doubt (the standard required in the prosecution of criminal actions).
It is well to remember that the requirement is somewhere between the two extremes above noted. Otherwise, those disposed to add strength to the presumption may make the rule so strong as to require that illegitimacy be proved by proof of nonaccess at the time of conception beyond a reasonable doubt. In my opinion, the majority opinion requires this degree of proof.
The basic decision in this jurisdiction, Bell v. Territory, supra, expresses our view in the following language:
“. . . The Supreme Court of Massachusetts, in Phillips v. Allen, 2 Allen, 453, adopted the rule that nonaccess must be proved beyond a reasonable doubt. Michigan has followed the same rule. Egbert v. Greenwalt, 44 Mich. 245, 6 N. W. 654. In Wright v. Hicks, 56 Am. Dec. 451, the Georgia court adopts the rule that a preponderance is sufficient. But we think the Iowa Supreme Court has announced the better and safer rule, and one which does not go to the extreme either of strictness or liberality. In the case of State v. Romaine, 58 Iowa, 46, 11 N. W. 721, that court said: ‘It appears to us that the true rule adduced from the authorities, as well as from principle, is that a child born in wedlock, whether begotten before or after marriage, is presumed to be the child of the husband, but that such presumption may be rebutted by strong, satisfactory, and conclusive evidence that the husband did not have access to the mother of the child when it was begotten. . . . The jury should have been instructed that the presumption of legitimacy was so strong that it could only be overcome by distinct, strong, satisfactory, and conclusive evidence to the contrary.
So much for the strength of the presumption of legitimacy, which I agree is a strong one, but which under the legislative mandate contained in section 3, supra, may be disputed by proof of illegitimacy established like any other fact. Under judicial precedent the refutation of the presumption need not establish the illegitimacy by proof of nonaccess at the time of conception beyond a reasonable doubt.
The foregoing rules and tests are primarily for the guidance of trial courts and presumably cognizance thereof was taken by the trial court.
In all cases wherein appellate jurisdiction is exercised this court recognizes that the. trial tribunal was in a better position to weigh the evidence and determine the credibility of the witnesses than we are. We must judge from the cold, unexpressive record without the trial court’s advantage of observing the demeanor and conduct of the witnesses. Thus whatever might have been added to the value of evidence by such observance is presumed in support of the trial court’s judgment to have existed, and, similarly, con*444tradictory evidence fair and reasonable on the face of the record may have been properly discarded in the trial court upon considerations not apparent in this court.
With these governing considerations in mind, let us inspect the evidence reflected by the record before us, especially that portion which supports the judgment of the trial court. Incidentally, two trial courts have passed on the question of illegitimacy and both on consideration of the testimony reflected by the record now before us have declared the- plaintiff in error illegitimate.
On the 5th day of May, 1919, Wesley Asbury and Louila King became man and wife by virtue of a ceremonial marriage. According to the application for the marriage license the groom was 45 years old and the bride only 19.
Sometime subsequent to the marriage but during the record period thereof the plaintiff in error herein was born. She was the daughter of Louila. Was she the child of Wesley? Wesley was convinced she was not.
On March 3, 1920, approximately ten months after the marriage ceremony, Wesley filed an action for divorce in the district court of Hughes county in which he sought and was subsequently decreed a divorce upon the sole and only grounds that Louila was at the time of the marriage pregnant by another man. The divorce was granted on January 10, 1921. It was based upon personal service of summons on the defendant wife.
While the marriage lasted some ten months before a dissolution thereof was sought, the record reflects that the parties separated soon after the ceremony and did not thereafter cohabit as man and wife, if they ever did.
It is reflected by the testimony of the witnesses produced that at the time of or immediately before the marriage to the decedent herein, the mother, Louila, had an emotional attachment for another man who was married. The other man’s wife discovered a letter in his possession disclosing the tendency and protested the matter. The protest seems to have been successful, since the offended spouse continued to live with her husband, and Louila, being then encouraged by her father, who said it was to keep her from going wrong, married Wesley.
Wesley, according to the testimony, soon discovered his bride was pregnánt by another man and took her home to her father in about a week or ten days, stating his reason for doing so at the time.
During the week they lived in the same house, but others were present and some testimony supports the view that they did not cohabit as man and wife at all. If the presence of the two in the same house establishes access, it does not establish such access at the time the child was begotten.
There is evidence in the record to the effect that the mother’s pregnancy had advanced to a stage that it was apparent to third parties at about the time of the marriage or shortly thereafter. While the testimony of the defendants in error does not fix a definite date of birth of plaintiff in error, it indicates and supports the view that the birth occurred at a much earlier date than that fixed by plaintiff in error’s evidence. A birth certificate was not produced; perhaps none was available.
Wesley Asbury at all times declared he was not the father. The child was not mentioned in his will. Witnesses were produced who said the mother also made declarations to the effect that he' was not the father and that the married man previously referred to was. She exhibited pictures of the child to relations of the latter man and declared the child was related to them through him. The other man on at least one occasion admitted the paternity.
As far as the record discloses, Wesley did not see the child during his life. They lived apart a distance of approximately 51 miles.
*445Most of the testimony reflecting the foregoing facts is either delineated by or corroborated by the testimony of witnesses who have no financial interest in the outcome of the controversy. On the other hand, the plaintiff in error’s case is built largely upon the testimony of her mother and her maternal grandfather.
Accepting the testimony of the plaintiff as the trial court did, the gist of this case is this. A middle-aged man married a young woman who had been in love with another man already married. The marriage was sponsored by her father. The groom discovered his bride was pregnant by another. He took her home for a week. He subsequently divorced her because of the pregnancy. He declared to all, and the mother stated to some, that he was not the father of the child. He made no provision for her in his will. The other man admitted his paternity.
The majority opinion holds in effect that presumption of legitimacy is so strong that having made the mistake of marrying a pregnant woman and keeping her in the same house for a week, the bridegroom or his descendants cannot establish illegitimacy the same as any other fact even though he did everything that reasonably might be expected of a man confronted with such a situation.
I apprehend that many men have been convicted of criminal offenses upon evidence judicially declared sufficient to establish their guilt beyond a reasonable doubt when the evidence against them was of less probative force than the evidence herein tending to prove illegitimacy and nonacceess by the father at the time the child was conceived. This court has declared that the evidence need not meet the reasonable doubt test.
There is evidence in the record which would support a decision by the trial court favorable to the appellant. But that evidence was not there accepted.
The question herein was a question of fact. The evidence supports the view that the child was begotten at a time when the deceased did not have access to the mother, and the decision of the trial tribunal and its judgment should be affirmed.
I respectfully dissent.
I am authorized to state that Mr. Justice ARNOLD concurs in the foregoing dissenting view.