Opinion
November 22, 1948.
1. Equity pleading — bill charging fraud must allege facts.
A bill or petition charging fraud must do so in terms of fact, specifically stated with full definiteness of detail — distinctly setting out the facts as facts which constitute the fraud charged.
2. Equity pleading — answer denying fraud, sufficiency of.
An answer denying fraud must distinctly answer every allegation from which fraud may be reasonably inferred. An answer is not sufficient which contains only a general denial of fraud and such an answer may be stricken on motion.
3. Adoption — necessary parties to petition — effect of failure to make presumptive father of child a party.
When the fact shown are that the husband not only had opportunity of access to his wife, the mother of the child sought to be adopted, but did have access to her at the time when the child would have been begotten in the ordinary course of nature, the presumption that the husband is the father is such that an adoption proceeding to which the husband is not made a party is invalid under the due process provisions of the state and federal constitutions.
4. Adoption — when evidence which would seek to bastardize a child will not be heard.
When a petition to adopt a child brought by a person who avers that he is the natural father of the child is opposed both by the mother and by the husband of the mother, and the facts show that the husband not only had opportunity of access to his wife but did have access to her at the time when in the ordinary course of nature the child would have been begotten, both the wife and the husband insisting that the child is legitimate, the said outsider will not be heard to attempt to prove to the contrary, and his petition will be dismissed.
APPEAL from the chancery court of Lamar County, LESTER CLARK, Chancellor.
Jesse W. Shanks, Ben Stevens, and L.B. Jones, for appellant.
In view of the fact that whether the decree of dismissal in cause No. 4091 is proper must be largely determined by the answer to the question of whether the dismissal decree in cause No. 3758 is proper, we shall first discuss the action of the court in entering the decree of dismissal in cause No. 3758.
The court will remember that the decree of dismissal followed the sustaining of a motion by the appellee, N.C. Lee, to strike from the file the answer of appellant to the petition of N.C. Lee to vacate the adoption decree in cause No. 3758 which was rendered in September, 1943.
Any casual reading of appellant's answer to that petition will reveal that appellant took square issue with appellee, Lee, on both the facts and the law of the situation, and, therefore, the motion to strike was not more than a demurrer would have been to the original petition, and the question, therefore, before the court is whether a chancellor has the right to ignore the fact that the pleadings raised square issues of fact and enter a final decree of dismissal. The court has repeatedly held that a circuit judge cannot grant a peremptory instruction under such circumstances, but at this moment we have found no case squarely dealing with the point.
However, the court has held in Jaubert Brothers v. Walker, 33 So.2d 827, that a motion to strike answers on ground that they presented no defense sufficient in law, admitted every fact asserted in their answers.
Likewise, in the case of Greenwood Grocery Company v. Bennett (a circuit court case) 58 So. 482, the court said in the third syllabus: "Courts of law are organized for the purpose of trying causes upon their merits and only in exceptional cases should the trial court refuse to permit amendments of pleadings or proceedings." We submit that the same principle applies in the instant case. Here the pleadings raise square issues of facts, several of them, and yet the court declined to hear the cases on the merits, notwithstanding that an issue of legitimacy was raised, and notwithstanding that an issue of fraud was raised, not only as against the parties litigant, but as against the court itself.
Likewise, this court has condemned the deciding of cases on motion in the case of Federal Credit Company v. Newman, 16 So.2d 619, where the court said, that the merits of causes are determined on plenary pleadings and rarely, if ever, on a motion.
Certainly the answer of the appellant to the petition of N.C. Lee to vacate the adoption decree in this cause was not frivolous. See Germain v. Harwell, 66 So. 396, 108 Miss. 396.
The lower court seems to have proceeded on the theory that because the appellees were not divorced at the time of the adoption proceedings, that neither the appellee. Beulah Lee, nor the appellant had any legal right to charge in the petition for adoption, as they both charged, that Bettie Joice Lee was an illegitimate child, and that N.C. Lee was a necessary party to the suit, and further, that the presumption of the legitimacy of a child born to a married woman could not be overthrown while she still remains married.
It is to be observed that under the adoption statute the father of an illegitimate child is never a party to an adoption proceeding of the illegitimate child, and as it is a fact which the very chancellor who set the adoption decree aside found to be true in the first instance, that the minor involved in this case was illegitimate, then it was his duty in the latter proceeding in the cause seeking a vacation of the decree to determine the truth of the situation under competent evidence, and we submit that the fact that the child was born while Beulah Lee was still married to N.C. Lee is not conclusive on the right of the appellant to raise the issue as he did raise it by his pleadings that the minor was illegitimate and was in fact his child.
The courts have long recognized, and particularly this court has, that it is not every child born to a married woman which is legitimate. The presumption of law is, of course, that it is legitimate. Furthermore, we admit this is a strong presumption, but the court has held that it is a rebuttable presumption, and can be overthrown if the evidence is at hand to do so, and certainly the appellant should have had his day in court on that issue, and especially in view of the fact that he was charged with a conspiracy to commit a fraud upon not only the appellees, but upon the court itself, and was furthermore charged with perjury in the proceedings. It isn't pleasant to hear such an issue, and the responsibility for a decision of such an issue is a heavy one, but the cold fact remains that the law imposes the duty upon the lower court to wade through the unpleasantness of such a hearing, and to assume the responsibility of such a decision.
In this connection we cite the following Mississippi cases: Herring v. Goodson, 43 Miss. 392; Adams v. Adams, 59 So. 84; Moore v. Smith, 172 So. 317, 178 Miss. 383.
In the case of State v. Coliton, 17 N.W.2d 546, 156 A.L.R. 1403, the court held that a child born to a married woman, but not begotten by her husband is a child "born out of wedlock," and is, therefore, illegitimate.
We also cite generally Smith v. Hawkins, 93 Miss. 588, 47 So. 429; Mahaffey v. Mahaffey, 170 So. 289. The court should remember in this connection that the appellee, Beulah Lee, in suing the appellee, N.C. Lee, for divorce swore that she was separated from him about February 1, 1942, and the final decree, as hereinabove pointed out, which granted her a divorce, and it was on personal process on the defendant, N.C. Lee, that the parties had not lived together since February 1, 1942. The child was born June 1, 1943, sixteen months later, and in that connection we cite 7 A.L.R. 313.
It should also be borne in mind that the petition to vacate this decree charges the appellant not only with fraud on the parties, but with fraud on the court, a conspiracy to defraud the parties and the court, and with perjury. The answer of the appellant to the petition decided direcly and with emphasis all of these allegation, and he was entitled to a hearing on it.
Independently of whether the minor, Bettie Joice Lee, is the legitimate child of the appellees, or the illegitimate child of the appellant by Beulah Lee, the petition for Habeas Corpus raises squarely the issue of who is a proper and fit party to have the custody of the child, and the lower court ran rough shod over its duty to decide that question which the petition for Habeas Corpus, leaving out all other questions, squarely presented for decisions.
It is most respectfully submitted that the decrees in both causes be reversed, and both causes remanded for a trial on the merits. O.K. Wiesenburg, for appellees.
As a preliminary to his argument, counsel for appellees cited and quoted at length from the following statutes, cases, and texts:
Chapter 305, Laws 1942; Sections 399, 1300, and 7064 Code 1942; Sinquefield v. Valentine, 159 Miss. 144, 132 So. 81; Englehard v. Sutton, 7 How. (8 Miss.) 99; Griffith, Mississippi Chancery Practice, sections 27, 29, 223 and 372; 21 C.J.S., Courts, sections 35 and 73; 14 Am. Jur., Courts, section 167; 34 Am. Jur., Judgments, section 113; Union Chevrolet Co. v. Arrington, 162 Miss. 218, 138 So. 593; 7 Am. Jur., Bastards, sections 13, 52 and 53; 10 C.J.S. Bastards section 3; Moore v. Smith, 178 Miss. 383, 172 So. 317; Beaver v. Crump, 76 Miss. 34, 23 So. 432; Roberts v. Cochran, 177 Miss. 546, 171 So. 6; Bess v. Ervin, 177 Miss. 461, 170 So. 673; Re Andrew Malalina, 1 A.L.R. 1629. He quotes from the latter case as follows:
"Public policy and common decency are opposed to the bastardizing of children born in wedlock, against the wishes and perhaps against the protest of their putative parents. If neither the husband nor the wife to an existing marriage desires to raise any question of the legitimacy of a child born during its existence, the best interests and welfare of society will be promoted if the state likewise declines to intervene in raising that question. It will appear, too, that the welfare, comfort, and happiness of innocent children are, under this policy of the state, best conserved, as they are protected against the stigma of illegitimacy, or aspersions cast upon their birth being raised by third persons, either through excessive zeal or actuated by sinister motives. . . ."
The appellant comes before this court in the strange guise of an admitted adulterer demanding to be allowed to have a trial in a court of equity on the question of whether or not a child born in apparent lawful wedlock is the fruit of his seduction of the wife as against the claim of both the husband and wife that the child is legitimate and their own.
He argues that he should be permitted to make this issue by virtue of a decree of adoptions or "legitimation," to which the husband was not a party, and because of a subsequent divorce between the husband and wife in which the legitimacy of the child was not an issue. Small wonder then, this case comes up on the sustaining of a motion to throw him out of a court of equity.
Appellant's claimed case strikes at the very foundation of our basic law. Certainly where husband and wife both agree that a child born during the marriage is their lawful issue, our courts ought not to countenance proceedings by strangers to the marriage asserting that the child is illegitimate and that any custody rights should be vested in the putative father.
Great stress is made by opposing counsel to the decree of divorce rendered by the chancery court of Lamar County on February 29, 1944, as to the finding of facts contained in that decree — that N.C. Lee and Beulah Lee had separated in 1942, and that they had not lived together since February of 1942. Appellant makes the contention that this finding of fact rendered in February of 1944 adjudicates the verity of the prior decree of adoption or "legitimation" rendered in September of 1943 by establishing the fact that Lee could not have been the father of the child in question inasmuch as it showed a separation of over sixteenth months prior to the birth of the child, and inasmuch as Lee was made a party defendant to the divorce proceeding, yet made no appearance or contested the divorce. The decree rendered in this cause, a copy of which appears on page 104 of the record, was rendered on the 29th day of February, 1944, six months after the "legitimation" decree, and as pointed out to the court previously, N.C. Lee and Beulah Lee have filed a petition to set aside and revoke the decree, the petition appearing on pages 52-54 of the record. We submit to the court that the validity of the decree of "legitimation" is determined by the facts that existed at the time the petition was presented to the chancellor, and its validity cannot be bolstered by collateral proceedings at a later date.
The question of the legitimacy of Betty Joyce Lee as between Beulah Lee and N.C. Lee was not adjudicated by the divorce proceedings, nor as a matter of fact, was the issue even raised between the parties. Lee did not appear in response to the divorce action, nor did he forfeit any right that he might have to Betty Joyce Lee if she were his legitimate child.
If I understand the argument of appellant correctly, he argues that the question of whether N.C. Lee was the father of the minor, Betty Joyce Lee, or whether she was illegitimate and the child of V.E. Graham, should have been inquired into by the court on the habeas corpus proceeding. Counsel overlooks the fact that in view of the petition to vacate the so called "legitimation" proceedings, the court would not undertake any such inquiry until determining the validity of the "legitimation" proceeding in the first instance. He further overlooks the fact that if the court determined as a matter of law that N.C. Lee was a necessary party to the legitimation decree, then there was no alternative but to vacate the decree for the purpose of permiting N.C. Lee to be heard. Once that result was attained, the appellant is in the position, insofar as the "legitimation" proceeding is concerned, in insisting that he is the putative father of the child born in apparent lawful wedlock when the presumptive parents of the child both insist that the child was born in lawful wedlock. We do not see how the chancellor could have done anything else other than dismiss the "legitimation" petition in view of the pleadings. While in Moore v. Smith, supra, our Supreme Court did declare that the lawful husband and wife could testify to facts which would show the actual illegitimacy of a child apparently born in lawful wedlock, we do not believe that this court will ever extend that doctrine to permit an adulterer to come into a court of equity and claim the alleged fruits of his illicit cohabitation against the contention of the lawful huband and wife that the child is their own.
The vice of appellant's position in this case is that he mistakes the issue involved to be his rights as against the indubitable rights of the child itself. At the time of the birth of Betty Joyce Lee no question could have been raised in any court or in any place as to her legitimacy. Her father and mother, N.C. Lee and Beulah Lee, were husband and wife, lawfully married. Her certificate of birth, duly issued to her in usual form, showed her to be the legitimate child of Beulah Lee and N.C. Lee and bearing no taint or suspicion of the stigma of illegitimacy. When V.E. Graham, joined by Beulah Lee, filed his petition in the chancery court of Lamar County to legitimatize Betty Joyce Lee, in view of the actual facts which were not disclosed to the chancellor, the petition was one actually to bastardize the child, and such indeed was the effect of the decree. If Graham still be of the opinion that his petition made a sufficient disclosure to the court of the marital status of Beulah Lee, or of the actual facts pertaining to the birth of Betty Joyce Lee, he certainly fails to take into consideration the duty vested upon our courts of equity under our constitution and statutes to stand as a bulwark of protection as to the rights of minors, and to act for and in behalf of the minor on its own initiative. It was only because the petition did not disclose the actual facts that the deceree was rendered without N.C. Lee being made a party to it. Certainly the petition in this case does not comply with the statute, which is the sole authority upon which it could be heard. As an adoption proceeding it failed of necessity because N.C. Lee was not a party thereto. As a legitimation proceeding, it failed for the same reason. Whether adoption or legitimation, by the very essence of the facts N.C. Lee was a necessary party thereto, and the decree rendered in his absence was a nullity, which Graham himself was responsible for in the first instance. His mouthing now that N.C. Lee knew, or should have known, about the adoption decree, and his further allegations contained in his answer in which he bitterly attacks N.C. Lee, seem as consistent with his character as disclosed by the pleadings as his present effort to have the court say that he had a right to bastardize a legitimate child.
Appellant overlooks entirely the fact that this is not a contest between Graham on one hand and Lee on the other, or between Graham and Mr. and Mrs. Lee. It is a proceeding that a court of equity will inquire into solely for the purpose of determining what is for the best interests of the minor child involved in this case. The rights of the parties are subordinate to thet principle, and the claimed adoption decree itself must disappear like snow upon the desert's face if it appears to the court that its rendition was against the best interests of the minor child because of facts not disclosed to the court.
It is strange, indeed, that appellant should now scream so loudly for a right to trial in a court below on an issue which he sought to deny to appellee the right to make by not making him a party to the so called adoption or "legitimation" proceeding in the first instance. If the appellant had made the appellee, N.C. Lee, a party to the so called "legitimation" proceeding in Lamar County, he would have had his day in court immediately on that question unless, as is more likely, the learned chancellor on learning the facts of the case, would have forthwith thrown the parties bodily out of his court. Can appellant cry injustice at a situation that the entire record shows is of his own making, and one that he deliberately sought to accomplish? In view of the strong presumption of legitimacy that attends a birth in lawful wedlock, in view of the provisions of our statute on the question of legitimation, Chapter 305, Laws of 1942, supra, in view of section 399 of the Mississippi Code of 1942, supra, and particularly in view of Sinquefield v. Valentine et al, 159 Miss. 144, 132 So. 81, we submit that the court properly ruled on the pleadings that he was without jurisdiction in the first instance to proceed upon a so called adoption or legitimation proceeding, which did not make the presumptive father of the child a party thereto, but further made no mention, nor disclosure to the court, that the mother of the child was lawfully wed to another at the time of the conception and birth of the so called illegitimate child.
Apellant cites Jaubert Brothers v. Walker, 33 So.2d 827; Greenwood Grocery Company v. Bennett (a circuit court case) 58 So. 482; Federal Credit Company v. Newman, 16 So.2d 619; and Germain v. Harwell, 108 Miss. 396, 66 So. 396, on the question of sustaining of the motion to strike the answer. The point appellant apparently overlooks is that a motion to strike an answer, as a demurrer, does not admit mistaken conclusions of law, and we submit from the facts of this case that appellant's conclusion of law contained in his answer that N.C. Lee was not a necessary party to the adoption or legitimation proceeding, contained on pages 97-101 of the record, and comprising almost one-half of the answer, is a mistaken conclusion of law, and is the crux of the motion to vacate. Where pleadings on their face show lack of jurisdiction, a court on its own motion will dismiss the proceeding. We submit that the motion to strike the answer, which answer admitted that N.C. Lee had not been made a party to the adoption or legitimation proceeding, was proper, even though the answer argued as a conclusion of law that N.C. Lee was not a necessary party to such proceeding. After all, the court has to look to the statute upon which this proceeding was predicated, even if the appellant did not. The court's theory was that N.C. Lee, the presumptive legal father of the child, was a necessary party to the original proceeding, and that not having been a party that the decree of adoption or legitimation had to be vacated, since the court could not have exercised its inherent duty as a court of equity to protect the child without Lee having been a party to the suit in the first instance.
Appellant cites Herring v. Goodson, 43 Miss. 392; Adams v. Adams, 59 So. 84; Moore v. Smith, 178 Miss. 383, 172 So. 317; State v. Coliton, 17 N.W.2d 546, 156 A.L.R. 1403; Smith v. Hawkins, 93 Miss. 588, 47 So. 429; Mahaffey v. Mahaffey, 170 So. 289, in support of the proposition that the court should have inquired into the legitimacy of the child notwithstanding the deception practiced by appellant upon the court in the first instance, and notwithstanding that in view of the pleadings that no triable issue remained.
The case of Herring v. Goodson, 43 Miss. 392, states in part: "The plaintiff in error, insists that the paternity of Elisha Goodson was an issue by the pleadings, but that the onus of proof was on the petitioner. We think not, to the extent at least, and to the effect claimed. A child born after the marriage, and during he husband's life, is presumed to be legitimate; and so firm was this presumption originally that it would not be rebutted, unless the husband was incapable of procreation, or was absent beyond the four seas during the whole period of the wife's pregnancy. Co. Litt., 244A; Rex v. Aberton, 1 Lord Ray, 395; Rex v. Murray 1 Salk. 121. This ancient rule has been so far relaxed, that in later times, this presumption may be overcome by showing that the husband had no opportunity for intercourse, and the jury, from all the facts, are to infer whether intercourse did or did not take place. Banbury v. Gardner, Peerage cases; Rex v. Luffe, 8 West. 173; State v. Petteway, 3 Hawks, (n.c.) 623; 1 Phil. Evi. 630. The defendant, Herring, did not deny the paternity of Elisha Goodson, except by the affirmative allegation of non-access to the mother. It would be incumbent upon him, in order to overcome the presumption of legitimacy, to prove the non-intercourse."
Taking the most liberal view to appellant of the last cited case, the burden of proof would have been upon him to show the non-access of N.C. Lee to Beulah Lee at the time of the filing of the adoption petition, and how could this be done under our judicial system without N.C. Lee being a party to such proceeding?
The case of Adams et al v. Adams et al, 59 So. 84, cited by appellant, says as to our adoption statute: "If the proceeding for the adoption is judicial, and the officer or tribunal is acting as a court or judge, then, upon principle, the order of adoption partakes of the characteristics of a judgment; and if there is jurisdiction over the parties and the subject matter, it cannot be avoided for errors or irregularities, except upon appeal or by motion to vacate it, and is therefore exempt from collateral attack." There is no question that the motion to vacate the adoption decree filed by N.C. Lee in this case was the proper method of attacking the validity of the decree, and learned counsel's argument that this proceeding amounts to a collateral attack on the decree runs directly counter to the case he cites, Adams et al v. Adams et al., supra.
In Moore v. Smith, 178 Miss. 383, 172 So. 317, the narrow question decided was that husband and wife could both testify as to facts which would render a child illegitimate on the ground that society would seem to be best protected by admitting any otherwise competent evidence that would relieve an innocent husband from remaining tied to an unfaithful wife, and being charged with the care and support of a child of which he is not the father. The court said: "We conclude, therefore, that domestic and social policy does not require the exclusion of the evidence here under consideration and that justice would be best promoted by admitting it; consequently, the court below erred in excluding it."
Appellees were formerly husband and wife. They were married on March 27, 1916 and consorted as husband and wife until on or about the latter part of October 1942. On or about April 15, 1942, the husband obtained employment in Pascagoula, in Jackson County, and went from his home in Lamar County to Pascagoula, but returned on frequent visits to his wife and children who had remained in Lamar County, these visits extending up until about the latter part of October 1942, already mentioned. Sometime in the month of July 1942, the wife moved into the home of appellant Graham in Lamar County, and thereafter the visits of the husband to his wife were in the home of said Graham. In August 1942 the husband requested his wife to leave the home of Graham, but he suspected no immoral conduct on the part of his wife because her marital relations with her husband on his visits continued in the normal manner and so continued until about the said latter part of October 1942. During the latter part of that month the husband received information, which he regarded as reliable, that the relationship between Graham and the wife had become adulterous, whereupon the husband took two of the children and returned to Pascagoula, and had no further marital relations with his wife after the time last mentioned.
On June 1, 1943, a child, the subject of this controversy, was born to the wife in Lamar County, the official birth certificate naming appellee husband as the father. On August 31, 1943, appellant, Graham, joined by the said wife, filed a petition in the Chancery Court of Lamar County, alleging that the child, naming her in the petition, was an illegitimate child and that appellant Graham was the natural father of the child, and praying that appellant Graham be permitted by decree of the court to adopt the child and thereby to legitimatize her, and that her name be changed to Graham. The husband and father was not made a party to the petition and knew nothing of it. On September 10, 1943, a decree was entered as prayed in the petition.
On October 20, 1943, the wife filed a bill for divorce in the Chancery Court of Lamar County against her husband, and a decree of divorce was granted on February 27, 1944, the husband, although personally served with process, having failed to answer or otherwise contest the said suit. It may be stated, however, that according to the present record the allegation in the divorce bill that the parties had been separated since February 1942, was wilfully false, and that the separation did not occur until late in October of that year. Sometime during the month of April 1946, the exact date not being shown in this record, the former husband and wife joined in a petition filed in the Chancery Court of Lamar County, praying that the decree of divorce be revoked and vacated, but no action seems to have been taken on that petition.
Sometime before the date next hereinafter mentioned, the wife left Graham and went to George County, taking the child with her. On March 30, 1946, appellant Graham filed a petition in the Chancery Court of George County, praying that an order be made for the return of the child to appellant's custody, which petition came in some manner to the knowledge of the former husband and presumptive father of the child, whereupon he intervened and challenged the validity of the adoption proceedings heretofore mentioned, and, on April 2, 1946, a consent order was entered in the Chancery Court of George County transferring appellant's petition to the Chancery Court of Lamar County, whereupon in the latter court on May 7, 1946, the husband exhibited his petition to vacate the decree of adoption. The facts set forth in the first two paragraphs of this opinion were specifically set forth in paragraph four of the petition to vacate.
The answer filed by the appellant Graham to the petition last mentioned did not deny the said allegation of fact, but averred merely that "answering paragraph numbered four of the petition . . . he denies each and every allegation of said paragraph which seeks to impute any fraud upon this defendant in the rendition of said decree for the adoption of said minor." (Hn 1) A bill or petition charging fraud must do so in terms of fact, specifically stated with full definiteness of detail — distinctly setting out the facts as facts which constitute the fraud charged, and the answer thereto must respond in like terms. (Hn 2) "An answer is not sufficient in containing a general denial of fraud. Every allegation from which fraud may be reasonably inferred must be distinctly answered." Grif. Miss. Chan. Prac. Sec. 354, p. 360. The answer contained no sufficient defense to the petition to vacate the adoption decree and the court was correct in sustaining the motion to strike it.
(Hn 3) The allegations of the petition to vacate were ample to sustain it. Under the stated facts, at the time the child would have been begotten in the ordinary course of nature, the husband not only had the opportunity of assess to his wife but actually did have access to her, whence the presumption is that the child was begotten by the husband, Moore v. Smith, 178 Miss. 383, 386, 172 So. 317, from which it further follows that any proceeding to adopt the child without making the presumptive father a party thereto is invalid under the due process provision of our state and federal constitutions. Const. Miss. Sec. 14; U.S.C.A. Const. Amend 14. Britt v. Allred, 199 Miss. 786, 789, 25 So.2d 711, citing Sinquefield v. Valentine, 159 Miss. 144, 132 So. 81, 76 A.L.R. 238, and other cases. And the decree of adoption having been properly vacated, it left appellant's present petition for the custody of the child without any basis upon which to stand, and it, too, was properly dismissed.
(Hn 4) Appellant says, however, that when the decree of adoption was vacated, the court should have heard, nevertheless, the testimony which appellant says he offered to produce that as a matter of fact appellant is the father of the child and the former husband is not; in other words, that the case should have proceeded on the petition to adopt the child, or else on his later petition for custody. One difficulty with that contention, one entirely sufficient to completely displace it, is that the former wife in her sworn answer to the petition to vacate the decree of adoption so answered that in effect she joined in the petition to vacate, and fully substantiated the allegations of the petition, putting herself in the position of opposing he adoption, so that both the presumptive father and the wife were opposing it, both now averring that the child is the legitimate child of the lawful husband and wife who were so at the date of its birth, and in such a case, as a matter of public policy, no outsider will be permitted to attempt to prove to the contrary. We approve what was said in Re Madalina, 174 Cal. 693, 164 P. 348, 1 A.L.R. 1629, 1632, that public policy and common decency are opposed to the bastardizing of children born in wedlock against the wishes and against the protest of their putative parents; and there is nothing to the contrary in Moore v. Smith, supra, relied on by appellant, but, on the contrary, there is much therein to support our present conclusion.
Affirmed.