Red Eagle's Children: Weatherford vs. Weatherford et al.

Appendix: Reproduction of “Reports of Cases Argued and Determined in the Supreme Court of Alabama, during January Term and a Part of June Term, 1852. Reported by J. W. Shepherd. Vol. XX.”

Appendix REPORTS OF CASES ARGUED AND DETERMINED IN THE SUPREME COURT OF ALABAMA, DURING JANUARY TERM .AND A PART OF JUNE TERM, 1852. REPORTED BY J. W. SHEPHERD. VOL. XX. MONTGOMERY: l'lU:Nn:D Dr ~ .AND DE WOLF. 1852. WEA.THERFORD VS. WEA.THERFORD ETAL. 1. Filiation may be established, at common law, by a satisfactory combination of facts indicating the comi.ection of parent and child between lin individual and the family to which he claims to belong; and the principal of these facts are, that he has always bore the name of the person- whom he claims as his father; that the father has treated him as his child, and in that character has provided for hiS education, his maintenance, and his establishment; that he has been Uriiformly received as such in society; and that be has been acknowledged as stich by the family. 2, When filiation is once established, tbe law raises the presumption of legitimacy, and the burden of proof is cast upon those who assert the illegitimacy. 3. But when the evidence, by which fiiiation is established, also proves illegiti· macy the presumption of legitimacy does not arise. 4. The'presumption of an actual marriage arising from the faCt of cohabitation may be rebutted, by proof of a subsequent permanent separation betwecn the parties, without allY apparent cause, and the marriage of one of them soon afterwards. ERROR to the Chancery Court of Mobile. Tried before the Hon. J. W. Lesesne. This bill was filed by William Weatherfotd, claiming to be the only lawfulson and heir of the late William Weatherford, sen'r, and as such entitled to the whole of his estate. It alleges that complainant's mother, SuperlaDiy, was lega;lly married to said Weatherford,sen'r, in 1812 or 1813, according to the customs of the Creek tribe of India'ns,;to which they belonged, and among whom they lived j that complainant had been received and treated by said Weatherford; as his·lawful son; that said Weatherford afterwards lived with J ANUARY TERM, 1852. 549 Weatherford v. Weatherford et a1 one Mary Stiggins, in a state of concubinage, and had several children by her; that after said Weatherford's death, said Mary Stiggins sent for complainant, and had him carried to her house in Baldwin county, where she then resided, and that she acknowledged him to be the lawful son of said Weatherford , sen'r, and that he was always received, treated and acknowledged as such by the family, and the community in which they lived; that after the death of Mary Stiggins, one Charles Weatherford took out letters of administration on the estate of said Wm. Weatherford, sen'r. Said Charles Weatherford, and the children of said Mary Stiggins by said Weatherford, sen'r, are made defendants to the bill, and by their answers deny that sald Weatherford was legally married to complainant 's mother, and assert that he was legally married to said Mary Stiggins. The chancellor dismissed the bill, holding that the proof was insufficient to es!ablish the legitimacy of complainant. CAMPBELL, for plaintiff in error. 1. The facts establish the filiation of the plaintiff. He bears the name of W m. Weatherford, whose paternity he claims. He was received in the family as his son, and treated by the wife of Weatherford and his children as the child of Weatherford. He is so esteemed in the community. He was recognized by his father. Code Napoleon, Book 1, Tit. 7, Ch. 2, § 322. 2. The filiation of W m. Weatherford being established, a presumption arises of his legi.timacy. The burden of proof is shifted to the defendants to prove his illegitimacy. 1 Penn. Rep. 453 j 6 Howard (S. C.) Rep. 550-587; Best on Presump. 335; 5 Coke, 89; Hubback on Suc. 2&0; Best on Ev. 61; 6 Eccl. Rep. 124. 3. The evidence of a marriage bctween the father and mother of Wm. Weatherford is sufficient. 1 Penn. Rep. 453; 4 John. Rep. 52; 18 John. 346: 2 Dana, 432; 1 Addon's Ecc. Rep. 64; Shelf. Div. 99; Hubback on Suc. 250. 4' The legal consequences of the marriage are to establish the legitimacy of the plaintiff and his ti.tle to inherit. 8 Ala. Rep. 52; Story's Coni Laws, 100; 4 En. Eccl. Rep. 489 i 3 ib.468. 550 ALABAMA. Weatherford v. WE'atherford et al. 5...