Opinion
No. 31653.
April 8, 1935.
1. BASTARDS.
Conception during wedlock is not essential to presumption of legitimacy which arises from birth in wedlock, although birth occurs so soon after marriage as to render it certain that conception was prior to marriage.
2. BASTARDS.
Legitimacy of child born in wedlock though begotten before marriage is founded on supposition that child was begotten by man who subsequently became husband of child's mother, especially when husband knew of pregnancy at time of marriage.
3. MARRIAGE.
Marriage, consent to which has been induced by coercion, is not void but voidable, so that marriage remains of full legal effect, and is valid for all purposes until dissolved by decree of competent court.
4. MARRIAGE.
Decree dissolving marriage cannot be rendered except during lifetime of parties.
5. MARRIAGE.
If spouse dies before voidable marriage has been dissolved by decree of competent court, the other spouse is entitled to rights of inheritance and all other rights which follow upon existence of valid marital relation.
6. BASTARDS.
Child born before voidable marriage has been dissolved by decree of competent court is as much entitled to character of legitimacy as if marriage had been entirely valid.
7. MARRIAGE.
Decree of annulment of marriage should make provision for support and maintenance of children born during marriage.
8. BASTARDS.
Man who married pregnant woman with knowledge that he was putative father of child, and who subsequently procured decree annulling marriage on ground of coercion, could not be required to provide support for child in bastardy proceedings instituted by woman after decree of annulment was rendered, notwithstanding that woman failed to request provision for support of child in annulment suit, since child, who was born before decree of annulment was rendered, was legitimate (Code 1930, section 179).
APPEAL from the circuit court of Harrison county.
HON.W.A. WHITE, Judge.
Bastardy proceeding by Betty Bass against John E. Ervin. From a judgment for the plaintiff, the defendant appeals. Reversed and dismissed.
Bidwell Adam and T.J. White, both of Gulfport, for appellant.
This cause must fail for the reason that it was brought under section 179, chapter 8, of the Mississippi Code of 1930.
This statute has no application to a married woman who shall be delivered of a bastard child.
A child born in wedlock is presumed to be legitimate until the contrary is shown; and the child referred to in the second clause of the statute means a child which, when born, will be in the eye of the law a bastard — that is to say, the child of a single woman.
Welch v. Cliburne, 49 So. 184.
Conception during wedlock is not essential to the presumption of legitimacy which arises from birth in wedlock.
3 R.C.L. 730.
Jo Drake Arrington, of Gulfport, for appellee.
There are many answers to appellant's argument, but only two will suffice to dispose of it: (1) The decree of the chancery court of Harrison county, Mississippi, specifically decreed that the marriage which appellant invokes (not to protect the woman, the mother and appellee herein, not to bestow a name and the status of legitimacy on his own child, but to shield himself against the sword of legal duty) was only a "pretended marriage," that it be "annulled," that is "was null and void," — which, if language has any meaning, means that both in law and in fact no marriage ever existed at any time between appellant and appellee, either before, during, or after the birth of the child, and consequently it means also, and as a matter of law, that the appellee, Betty Bass, never ceased to be a "single woman;" and (2) the decree of said chancery court is conspicuously silent as to the legitimacy vel non of the child, whereas the law is extremely zealous to bestow legitimacy on every child that it possibly can consistently and compatibly with the logic and integrity of the law: by its very silence in that regard the said decree (which is binding even on the appellant, as it is on the appellee, whom it denied the dearest consolation of a woman's heart, and as it is on the child whom it denied its father's name) proclaims the illegitimacy of the child; if appellant's position is sound (that appellee was a married woman when the child was born), then the child was, and still is, a legitimate one; but that cannot be in the face of the decree of the chancery court, which we submit has more to do with determining the status of the child than the position taken by the appellant.
Appellee became enceinte in July, 1932. On December 24, 1932, appellee and appellant were ceremonially married; appellant knowing at the time of appellee's condition and that he was the putative father of the unborn child. The child was born on April 5, 1933. On July 1, 1933, the marriage was annulled by a decree of the chancery court, on the ground that the ceremony had been the result of coercion and duress. On December 9, 1933, appellee instituted a bastardy proceeding against appellant, and obtained judgment, from which this appeal is prosecuted.
Conception during wedlock is not essential to the presumption of legitimacy which arises from birth in wedlock. This is true though the birth occurs so soon after the marriage as to render it certain that conception was prior to marriage. The legitimacy of a child born in wedlock though begotten before marriage is founded upon the supposition that it was begotten by the man who subsequently became the husband of the child's mother, more especially when the husband knew of the pregnancy at the time of the marriage, as is the case now before us. 3 R.C.L., p. 730; 7 C.J., pp. 940, 941; McRae v. State, 104 Miss. 861, 869, 61 So. 977.
A marriage, the consent to which has been induced by force or coercion, is not void, but voidable. In consequence it remains of full legal effect and valid for all purposes until dissolved by the decree of a competent court; and such a decree cannot be rendered except during the lifetime of the parties. Ellis v. Ellis, 152 Miss. 836, 842, 119 So. 304. If, therefore, one of the parties die before the decree of dissolution or annulment, the other would be entitled to the rights of inheritance, and all the other rights which follow upon the existence of a valid marital relation. And if such be the legitimate rights following upon death, nonetheless must be the rights of legitimacy consequent upon birth during the existence of the same legal marital relation. It would be an indefensible arbitrariness in judicature which would recognize, under such a state of facts, the legitimacy of the descent of mere property and at the same time deny the legitimacy of the descent of a child born during the existence of the same relation which gave legitimacy to the descent of the property of one or the other of the parties.
We hold, therefore, that a child born during the time that a voidable marriage, as distinguished from one absolutely void, remains in effect is as much entitled to the character of legitimacy as had the marriage been entirely valid, and while in so declaring we follow our own jurisprudence, Amis on Divorce and Separation in Mississippi, section 30; and see, also, Parkinson v. Mills (Miss.), 159 So. 651, we do not depart materially from the general law as reflected by the tendency of modern decisions in other states, although much is found in the older decisions and texts to the contrary.
The decree of annulment should have made proper provision for the support and maintenance of the child, Amis on Divorce and Separation, section 30; and doubtless would have done so had the mother in response to the suit for annulment properly presented that question to the court. She could not omit to do so, and afterwards institute a proceeding in bastardy; for in order to maintain that sort of proceeding there must be a bastard, section 179, Code 1930, whereas the child here involved is a legitimate child. We express no opinion as to whether there yet remains to her a remedy against the father for the support and maintenance of the child.
Reversed and dismissed.