By the Court.
Lumpkin, J.delivering the opinion.
Berry Wesley Culpepper, the son of Isaiah Culpepper, and grand-son of Daniel and Jemima Culpepper, having been bom in three months after the marriage of his parents, both of whom are dead, claims to be-the heir at law, through his reputed father, to his grand parents; and the first great question to be settled is, whether or not his legitimacy may be disputed, so as to exclude him from the inheritance ? And if so, what are the principles of law applicable to the case ?
I need scarcely remark, that cases of adulterine bastardy are new in the Courts of this State. May the day be far distant, when our Courts shall be inundated with indecent and demoralizing investigations, as to whether the husband or another, be the father of children born within wedlock! Such inquiries cannot fail to contaminate the morals, and destroy the peace of society.
The doctrine upon this subject, has fluctuated greatly in England. The oldest law writers — Granville, Bracton, Fleta and Britton — seem to have considered that circumstantial evidence was admissible to counteract the maxim of the civil law — Por*159ter est quem nuptice demonstrant — or the presumption of legitimacy arising from the birth of the party within lawful wedlock.
But it appears from the year books, that rules of pleading were laid down by the English Courts, at an early period, the effect of which-was to treat the presumption in favor of legitimacy as conclusive, unless it could be opposed by evidence of the husband’s impolency; or of his being beyond seas, during the .whole period of the wife’s gestation.
And Lord Coke, in his Commentary on Littleton, lays it down, that, by the Common Law’, if the husband be within the four seas, (that is, within the jurisdiction of the King of England,) and his wife have issue, no evidence is admissible to prove the child a bastard; except in the sole case of apparent impossibility of procreation by the husband, as of his not having attained the age of puberty. Co. Litt. 244, (a.) See, also, Jenkins’ Eight Centuries. 10 Regina vs. Murray. 1 Salk. 122.
During the reigns which immediately followed, the presumption in favor of the legitimacy of a married woman’s offspring, was strict and unyielding to an extreme ; whether, as has been supposed, from motives of policy, to protect the fruits of the profligacy of kings and nobles from the perils of disinheritance, I wrill not undertake to affirm.
It is hard to believe, at the middle of the nineteenth century, that there ever existed, in any enlightened country, a law so diametrically opposed to every principle of reason and common sense, as, that the children of a married woman should in all cases, be deemed legitimate, provided the husband was anywhere within the four seas which surrounded the island of Great Britain, and was endowed with generating potency.
And yet, to such an absurd length was the principle carried, that it was solemnly decided by a Court of the highest jurisdiction, that a child born in England, was legitimate, although it appeared on the fullest evidence that the husband resided in Ireland during the whole time of the wife’s pregnancy, and for a long while previously, because Ireland was within the King’s dominion.
In another instance, where the husband resided in Cadiz, the *160ehild was held to be a bastard; not because Cadiz was at a greater distance, but because it was beyond the four seas.
In modem times, the severity of the “ quatuor maria” rule has been done away with, and a doctrine adopted more conformable to the. standard of reason and good sense, and more in accordance with what seems to have prevailed at the earliest period of the law. Lord Raymond, of virtuous memory, to his honor be it recorded, was the first Judge who had the courage, in 1732, in the case of Pendrell vs. Pendrell (2 Strange, 925,) to decide that the legal presumption of the husband’s access might be controverted by other proof.
[2.] This opinion has been sanctioned by innumerable subsequent determinations, and the law now is universally understood to be clearly settled, that, although the birth of a child during wedlock, raises a presumption that such child is legitimate, yet, that this presumption may be rebutted, both by direct and presumptive evidence. And in arriving at a conclusion upon this subject, the Jury may not only take into their consideration proofs tending to show the physical impossibility of the child born in wedlock being legitimate, but they may decide the question of paternity, by attending to the relative situation of the parties, their habits of life, the evidence of conduct and of declarations connected with conduct, and to any induction which reason suggests, for determining upon the probabilities of the case. Where the husband and wife have had the opportunity of sexual intercourse, a very strong presumption arises that it must have taken place, and that the child in question is the fruit; but it is only a very strong presumption, and no more. This presumption may be rebutted by evidence, and it is the duty of the Jury to weigh the evidence against the presumption, and to decide, as in the exercise of their judgment, either may appear to preponderate. 5 Phil, on Ev. 6th American from the 9th London edition, by Van Cott. See also, the opinions of Lords Eldon, Redesdale and Ellenborough, in the case of the Banbury Peerage. The answers of the twelve Judges, in the same case.
Mr. Mathew, in his treatise on Presumptive Evidence, 22 et sequitur, says: The presumption in favor of legitimacy, still *161holds, whenever it is not inconsistent with the facts of the case ; and it is right that it should. It results from the principles of natural justice; it rests simply on the supposition of the virtuous conduct of the mother — a branch of that equitable rule which assumes the innocence of a party, until proof be brought of actual guilt. Yet, if such circumstances be in proof as clearly negative the truth of this presumption, the legal intendment will fail, and no general rule of evidence, of universal application, can be prescribed upon this subject. In every case, the fact must be determined by the particular circumstances.
Where the husband and wife reside at a distance from each other, so as to exclude the possibility of sexual intercourse, there it is admitted that the presumption of legitimacy is at once rebutted. But in the opinion of the Judges, in the Banbury Peerage case, a man and wife may dwell in the same place, and in the same house, and yet, under circumstances such as, instead of proving, tend to disprove, that any sexual intercourse took place between them.
So it has been laid down, that the presumption of access, by which is now meant sexual intercourse, though fortified by the strong fact of a private intercourse, is nevertheless open to rebuttal, by evidence of the feelings and conduct of the parties— such feelings and conduct as were displayed immediately before and after it.
And I apprehend, that a case might arise where mere proof of the fact of sexual intercourse, at or about the time of conception, would not be conclusive evidence of the legitimacy of the offspring. For instance — suppose that an adulterous connexion was shown to have existed between the wife and a negro, at or about the time when the child should have been begotten, and the color and other physiological developments of the offspring, demonstrated its African paternity, might it not be bastardized?
See Harris JYicolas, whose work on the law of Adulterine Bastardy, contains every authority and every case, published and unpublished, in its chronological order, which bears upon this subject; maintains the correctness of Lord Poke’s exposition of the law, and of its sound policy, at least, after it became so far *162modified as to abandon the rule of the “ qrntuor maria,” while it required evidence of the absolute impossibility of the husband’s being the father of his wife’s child, from whatever cause that impossibility might arise, instead of making the impossibility depend upon corporeal infirmity or geographical limits.
And it must be admitted that such arule has this to recommend it: it is clear, certain, positive, intelligible and well-defined; and it would seem to have the sanction of the Supreme Court of the United States, as we gather from one of the head notes to the report of the celebrated case of Patterson vs. Gaines and Wife, 6 Howard, 550.” “ If the fact of marriage be proved, nothing can impugn the legitimacy of the issue, short of the proof of facts, showing it to be impossible that the husband could be the father.”
I have _ looked carefully through the opinion of the Court, delivered indhis case, without being able to deduce this proposition as strongly and definitely as it is here stated.
[3.]' We adhere however, to the opinion already intimated, and such is our determination, that marriage is to be regarded in no other light than presumptive proof that the husband is the father of all the children born during wedlock, or within a competent time afterwards ; that either in a civil suit, or on a criminal prosecution, by the evidence of non access, or other testimony, the presumption of the legitimacy of the offspring may be rebutted.
[4.] That the same rules apply, whether the bastardy originates before or during marriage. If a man marries a woman pregnant by another person, the law presumes the child to be the husband’s; and whether she was a reputed virgin or grossment ensient, the books make no distinction. In both cases, the law says it is presumptively his child; still he may show by whatever proof he may command, that he has been made the innocent victim of fraud and artifice.
[5.] And the same proof may be adduced by any one, whose interest and right it is to contest the legitimacy of the pretender; and inexpressibly hard would it be if such privilege was not allowed. It is repugnant to the feelings of every man, that his *163property, upon his demise, should descend through channels where his blood did not flow; channels too, tainted and corrupted by the grossest impurity.
[6.] The other main question made by the record is, whether Mrs. Jemima Culpepper took a- life estate only, in the property of her deceased husband ? or, whether she is entitled, together with her reputed grandson, Berry Wesley Culpepper, as heirs at law, of Daniel Culpepper, to the fee ?
[7.] We take these principles to be well settled, namely: That the heir at law can only be disinherited by express devise or necessary implication; and that implication has been defined tobe such a strong probability, that an intention to the contrary cannot be supposed. 1 Jarman on Wills, 466, and the authorities cited.
neThat upon the fM'ciflfun[8.] And, that the intention to disinherit cessary to mise an estate by implicatio: devises, by implication, are sustainable|,o. pie of carrying into effect the intention o¡ less it appears upon an examination ofjjne' whole must have been his intention, there is Ibid, (3 note.)
[9.] And, lastly, that Courts are not permill^io give effect to the will of the testator, contrary to the plain and obvious terms used by him, upon a mere conjecture as to his intention. Maniganet vs. Deas, 1 Bail. Eq. 298.
[10.] Again, in the absence of anything in the will to the contrary, the presumption is, that the ancestor intended that his property should go where the law carries it, which is supposed to be the channel of natural descent. To interrupt or disturb this descent, or direct it in a different course, should require plain words to that effect.
[11.] If the estate is not devised to some other person, though the intention of the testator be ever so manifest to disinherit the heir, still the law casts the estate upon the heir. Denn vs. Larkin, Cowper, 657. This was a devise of a freehold-estate, to three nephews, without words of inheritance; a legacy of ten shillings to the heir at law, and after some other lega*164cies, the residue of the personal estate to the nephews. It was held that the nephews took only a life estate in the lands, and the heir at law, the fee — the intention to disinherit him, being wanting, it could only be inferred, from a vulgar notion, that a small legacy was evidence of such an intention, which Lord Mansfield held to be insufficient.
In Howell vs. Barnes (Cro. Car. 382,) an estate was devised to A. for life, and after death, ordering her executors to sell and divide the proceeds. It was held, that the intention to disinherit the heir was wanting, notwithstanding the executors had authority to sell and divide the proceeds.
In Schanber vs. Jackson, ex. dem. Bogert and others, (2 Wend. 13,) this whole doctrine underwent a most searching examination. There, the testator bequeathed to his son, Simon, who was the heir at law, 20 shillings for his birthright, to be raised and levied out of his estate, “ wherewith he utterly excludes, debars and excludes him Jrom having or claiming any other, or further pretensions, claims and demands whatever, as being his heir at law, or by any other pretence whatever.” He then bequeaths certain articles of personal property to his other children, and twenty-five pounds to his son Johannes, to be raised out of moneys arising from his real and personal estate. He then .authorizes and empowers, orders and directs his executors.to sell and dispose his whole real and personal estate, as well in New York as elsewhere, (except the personal estate before bequeathed) either at public or private sale, and declares their conveyance valid and effectual to convey all his estate. ' He directs the money arising from such sale to be applied, first, to pay the legacies, and the balance to be divided; one-fifth to each of his sons, Simon and Johannes; one-fifth to each of his daughters, Maddalena and Engeltze, and one-fifth to his grand-son, Jacobus Berry, the share of his grandson to be retained till bis maturity or marriage, in the hands of his executors, and in case of his death, to be •divided among the four children above named. He then appoints his son Johannes, and daughter, Engeltze, executors of his will. Engeltze filed her renunciation as executrix, and the will was proven, and letters testamentary granted to Johannes. *165According to the English law, in force at the time of the death of William Appel, the testator, his oldest son, Simon, would have been entitled by right of primogeniture, to the estate in question, as heir of his father, unless the descent was broken by, or under the provisions of this will.
The only question made in the Court of errors, was — whether by the will, any part of the legal estate was devised to the executors; or, whether they had a naked power to sell only, and distribute the proceeds ?
The Supreme Court decided, that there being no direct devise, either to the children or to the executors, there was nothing to prevent the descent of the estate to the heir at law. And the Chancellor, together with nine Senators, voted for affirming the judgment — twelve Senators for reversal. Stebbins, one of the majority, argued the question at great length, and with much ability, and he concedes “ that, had the will stopped after de'daring that Simon, the heir, should not take the estate, he wTould, nevertheless, have taken, because it would have been given to no other person.”
Here, there are no words of exclusion in the will, of the heirs at law; neither is the inheritance given to any other person. Of course, the fee is cast upon them by descent.
Let us next apply these principles to the pleadings, and see whether there was error in dismissing the complainant’s bill.
It is brought by Elias S. Wright, as administrator of Jemima Culpepper, deceased, against Lewis F. Hicks, as administrator generally, and also, as administrator de bonis non cum testamento annexo of Daniel Culpepper, deceased, to recover the residue of the estate of said Daniel, out of the hands of the defendant. It Seeks a decree for the whole surplus, upon the ground that the ostensible co-heir, to wit: Berry Wesley Culpepper, was an illegitimate.
Were the allegations in the bill — admitting them to be true— sufficient to bastardize this boy ? We think not. The bill does not even expressly charge the illegitimacy of Berry Wesley Culpepper, which it should do, and that notwithstanding he was born within three months after wedlock, that no sexual inter*166course had ever been liad or taken place between the said Isaiah Culpepper and his mother, previous to their marriage.
The order of the Court, dismissing the bill, was manifestly wrong, admitting that the averments were insufficient, as to the bastardy. It should have been returned at least for the purpose of enabling the administrator of old Mrs. Culpepper, to secure from the defendant, the moiety of the estate coming to his intestate.
Consequently, the bill must be re-instated, with leave to amend in the particulars indicated.
I regret sincerely, that the Reporter is forbidden to publish in extenso, the argument submitted by Robert P. Hall, Esquire, in this case. It would constitute an abiding monument of his ability and research, and deserves to be preserved in an enduring form.