dissenting. The plaintiff declares he is the legitimate son of John Vernon, deceased; and sues his grand-children, one of whom is his executor, to annul his will and for half his succession. They deny that he is the son of John Vernon.
The plaintiff very properly rests his case on sufficient proof of the fact that he was born of the wife of John Vernon during the existence of their marriage.
But one of his witnesses, Simeon C. Bankston, proves that he heal'd “ the old man say that he did not own Philip as his child ; that Philip himself said that the old man did not claim him, and that it was the general understanding in *247the neighborhood that Philip was not claimed by the old man Vernon as his child.”
John Dicks is the father-in-law of the plaintiff, and was also the cousin of his mother. There is not a shade of suspicion cast upon his testimony by the plaintiff. He had every possible motive to support his pretensions. His testimony must therefore be regarded as a severe sacrifice to truth and justice.
He proves that' Mrs. Vernon left her husband in South Carolina in March, 1793, and did not return until 1800 ; during which time her husband was not absent from his residence; that she left without children and returned with two, of whom plaintiff was the youngest. He then enters into details which show ^lly that Mrs. Vernon went to Kentucky and lived under an assumed name with a paramour, who abandoned her; when she returned to Carolina, and in the subsequent negotiation, by which her husband was reconciled to her, fully acknowledged that Philip was not his child.
This testimony establishes beyond all reasonable doubt that the husband had not access to his wife for seven years, during which time she had two children. The youngest could not therefore be the child of the husband.
The answer to hypothetical cross-interrogatories, so often put in cases of this kind, — for example, might not the husband and wife have come together without your knowledge ? — must always be the same which counsel, judges, or jurymen would give without the answer of the witness, and never has any effect upon the case, the court, or the jury.
John Vernon, at a great age, and on the brink of the grave, in the midst of infirmity, being blind, and having no motive to deceive, but every possible inducement to declare the truth, and not leave the world with the stain of falsehood on his soul, with regard to the only thing any longer of importance to him or those connected with him, made what was intended to be his last will, which was reduced to writing under his direction and signed before three neighbors and his legal adviser. Although informal as a will, it is a formal declaration of the truth. After appealing, as usual, to the name of God, he said, “ I now solemnly declare that Daniel =Vernon, now deceased, was my only legitimate child, and that his children are my only legal heirs.”
The plaintiff, pretending to be the son of the deceased for the purpose of claiming a portion of his properly, is compelled to stamp this solemn and, we may say, dying declaration of his supposed father with falsity. But it is impossible to yield to his pretensions to Vernon's property, based upon the stigma of him he calls father, unless compelled by irresistible proof or the inexorable rules of law.
There is not the slightest proof to counteract all this irresistible evidence of the plaintiff’s illegitimacy. Is it counteracted by law ? The principles of our Code which require the husband to denounce the infidelity of his wife, and judicially to bartardize her offspring are not applicable to the circumstances of this case, which occurred in South Carolina fifty years ago. They are rigorous principles of law requiring the husband and father to spread the shame of his wife and children on record, and thus to render reconciliation and forgiveness impossible, or to subject himself to the paternity of her spurious offspring. It is more conformable to the spirit of Christian forgiveness, if possible to be reconciled to a wife and mother of one’s children, even after the foul blot of her infidelity, as was done in the present case. These rules of our Civil Code should not be extended to a case which did not arise under them.
*248So the arbitrary rules of evidence which exclude the truth should not be extended beyond the positive enactments of law. There is no enactment of our own Legislature which excludes the acknowledgment of the plaintiff’s mother that he was not her husband’s child, and the most solemn written declarations of the husband to the same effect, as evidence in this case, in opposition to his claim as heir of tbe husband. On the contrary, the articles 214 and 215 of our Code authoi’izes every species of evidence, written or oral, in support of legitimate filiation; and the next article, 216, authorizes proof against legitimation, that “the plaintiff is not the child of the husband of his mother.” The article limits it to no particular species of evidence, and seems by its connection with the preceding articles, all are on one subject, to authorize all proof in opposition to legitimacy which could be offered in its support. The declarations of parents are the strongest evidence in support of legitimacy, and therefore should be admitted in opposition to it.
I am led to the conclusion from reading the opinion of Lord Mansfield, in the case of Goodright v. Moses, 2 Cowper’s Rep. 594, so much relied upon by the counsel of plaintiff, that such declarations are admissible as evidence to the jury n England. The rule that no evidence, except the impossibility of the husband’s access, should be admitted to establish the illegitimacy of a child born of the wife during the marriage has long since been abandoned in that country _
In the case of Goodright v. Saul a new trial was granted to prove a child illegitimate, his mother and her husband both living in London at his birth, because she lived with a paramour, called the child by his name, and it was reputed in the family to be illegitimate. 4 Durnf. and East. 358. The cases are numerous to that effect.
It is certainly laid down in general terms by Toullier, that the declarations of husband and wife shall not establish the illegitimacy of the wife’s child, born during the marriage : and our Supreme Court adopted the principle in the case of Tate v. Penn, to prevent the mother from reaping advantage from her shameless declaration.
But a note to the very section of Toullier furnishes a decision of the courts in France to the contrary, in the case of the illegitimate daughters of Antoine Lamarie. They were baptized by the mother as the children of Beancé, with whom she lived in adultery during Lamarié’s life. And after his death they failed in a suit to change the act of baptism and recover the succession of Lamarie.
The whole evidence was received by the district judge. He resided in the parish, knew the parties and witnesses, and on the question of fact decided against the plaintiff’s pretensions; and I think his judgment should prevail.