The judgment of the court was pronounced by
Eustis, C. J.This suit was instituted to set aside the last will of John Vernon, deceased; the plaintiff alleging himself to be the son and forced heir of the testator concurrently with the heirs of his deceased brother, Daniel Vernon. By the will the plaintiff was excluded from all share iu the succession, the testator declaring therein that John Vernon was his only legitimate child, and that the children of John were his sole legal heirs: these children were instituted his heirs, under the will, to the exclusion of all others.
The district judge was of opinion that the 'condition of the plaintiff, as heir of the testator, was disproved by its being established that he was the issue of an adulterous connection between Mary Vernon, the wife of John Vernon, the testator, and another person — having been born at a time when the distance of the husband and wife from each other rendered their cohabitation impossible. The plaintiff was non suited in the court below, and has taken this appeal.
If the plaintiff is not the legitimate son of the testator he has no interest in contesting the will. This question is therefore the first object of inquiry. The facts relating to the legitimacy of the plaintiff ar-e disclosed in the testimony of John Dicks, a witness examined on behalf of the defendants. Pie is the father-in-law of the plaintiff, and was the cousin of Mary Vernon, the mother of the plaintiff. By this testimony it appears that John Vernon and Mary Vernon were married about the year 1790, in Orangeburgh district in South Carolina, where they resided. In March, 1793, she abandoned her husband, and report said she went to Kentucky. She did not return until the fall of 1800. A report had reached the neighborhood that she desired to return, which originated in a letter written by her to that effect. By this letter it would appear that she was living under a feigned name, and that the man with whom she had abandoned her home had left her. She had no children during the period of her living with her husband, but after her return to Carolina in 1800 she again was absent with her brother, and brought back two children born during- her absence: these children were Daniel Vernon, whose heirs are the defendants, and Philip, whe is the plaintiff in this suit. The former was in appearance about six, and the latter about four years of age. After the return of the mother, the husband made repeated overtures for a reconciliation. She objected on the ground that she had misbehaved, and that it would always be thrown up to her, and that she could not live with him without her child. The parties met at the house of the sister of Vernon. He proposed their coming together. *245She said she could not live with him unless her child was received. Vernon said they had one between them, but that long before she had left him he had had an illegitimate child, named Jack, who was then in the neighborhood; that he was willing to take all the boys, Daniel, Philip and Jack, and bring them up as brothers and treat them as children, and that at his or his wife’s death they should share alike. His wife agreed to this ; they embraced, and the reconciliation was consummated, and they lived conjugally together until the death of Mrs. Vernon. The parents and children remained together in South Carolina until 1806. In 1810, the witness found them all living together on the Tanchipao, in this State; they eontiuned living together until the marriage of Daniel and Philip. At the death of Mrs. Vernon, John Vernon, the father, divided equally the property belonging to her between her sons Daniel and Philip. When Mrs. Vernon and her brother went after her children, they said they were going to Cumberland river; they were absent about five weeks. The witness and John Vernon lived close together in the same neighborhood in Carolina. Vernon did not leave at any time that section of country. Witness knows this fact from being intimate with him, and that he never left South Carolina until he removed from there in 1806.
The testimony of this witness, who" appears to be a conscientious and truthful man, is weakened or rather explained in his cross-examination, in which he says he has no personal knowledge of Mrs. Vernon having been in Kentucky. From all the witness knows, she might have been during her absence within fifty miles of John Vernon’s residence. He saw the latter two or three times every month during Mrs. Vernon’s absence ; thinks he was never longer than three weeks at any one time without seeing him; it may have been a month. The witness is satisfied, from his intimacy with Vernon, that had they ever met during her absence from 1793 to 1800 he, the witness, would have known it. We have thus stated the material parts of the testimony of this witness lor the purpose of showing its extent and its legal effect.
It is certainly proved that in 1793 Mrs. Vernon left the residence and neighborhood of her husband; but as to where she went there is no satisfactory evidence. Supposing she went to the region which the report stated, — to Kentucky, — to that part of it in which the Cumberland river has its source, and that John Vernon never left his neighborhood in South Carolina, it is obvious that these facts do not establish the impossibility of access and cohabitation of these parties. The evidence on this point is not at all satisfactory. There is no proof, other than that stated, as to where Mrs. Vernon went, or was at any time from 1793 to 1800.
It appears in evidence that Philip was brought up and married in the house of John Vernon, and was until his marriage on the same footing as Daniel. But John Vernon, in the significant language of the neighborhood, did not claim Philip as his son. This Philip himself said to a witness ; and it concurs with the declaration of the testator in his will.
The marriage of John Vernon with Mary, the mother of the plaintiff, in 1790, having been proved to have taken place in South Carolina, the argument has principally been directed to the status of the plaintiff under the jurisprudence of that State. Under our laws, as the case stands, the defendants would not be permitted to question the legitimacy of the plaintiff. Code, 209, 210, 211.
We assume that the rule established by the judges in the Banbury peerage case would control the condition of the plaintiff at the time of his birth. He was born during marriage; and the marriage having been proved, nothing is allowed *246to impugn his legitimacy, short of the proof of facts showing it to be impossible that the husband of his mother could be his father. The declarations of the father are entirely insufficient to bastardize the issue of the marriage, both by our law and that of England. Goodright v. Moses, Cowper’s Rep. 591. 2 Greenleafon Evidence, § 153.
We understand, that to rebut the presumption of legitimacy resulting from marriage, the evidence against it ought to be distinct, clear and conclusive. It is sufficient to state that the evidence adduced in this case is not of that character. It is at best, conjectural; and at this distance of time it would be equally unjust and dangerous to deprive a man of his status of legitimacy by any evidence short of that which the law and public policy require to be administered in order to destroy the effect of a civil institution upon which society rests for its security.
The plaintiff being therefore a competent party to contest the will of John Vernon, it remains to consider the objections to its validity. The most important is that the formalities of the article 1575 of the Code have not been complied with in making it. The will was intended to be a nuncupative will under private signature. The article 1575 requires this kind of testament to be read by the testator to the witnesses, or by one of the witnesses to the rest in the presence of the testator. The article 1588 provides that the formalities to which testaments are subject by the provisions of this section must be observed ; otherwise the testaments are null and void.
The will declares it to have been dictated by the testator and written by his request, and to have been read to him in the presence of the witnesses, but does not state that it was read by the testator to the witnesses, or by one of the witnesses to the rest in the presence of the testator. And it is not proved by the testimony taken in the cause that it was so read by the testator or one of the witnesses. Indeed, the testator was incapable of reading the will, and it was read by the professional gentleman who wrote it to the testator and the witnesses. This is the only reading of the will which is established by the testimony. We think this an essential requisite to the validity of the will. Succession of Key, 5 R. R. 483. It not having been complied with, the will is null and void.
It is therefore decreed, that the j udgment of the district court be reversed ; and it is further decreed, that the instrument of date the 17th day of January, 1847, purporting to be the last will and testament of John Vernon be declared null, void, and of no effect; and it is further decreed that the plaintiff, Philip Vernon, be admitted as one of the heirs of the deceased John Vernon, to share equally with the defendants, representing the deceased Daniel Vernon, and receive as heir one half of the effects of the succession of the deceased, and that the case be remanded for a partition of the same, and a settlement of the accounts thereof; the defendants paying costs in both courts.