Shelley v. Smith

Court of Appeals of Maryland · 1968 · Corporations

241 A.2d 682 (1968)

Updated August 22, 2026

CorporationspaternitylegitimationinheritanceevidenceLord Mansfield rulepresumption of legitimacynonaccess

Facts

Gladys Orwig was married to Herbert Smith, but they separated in 1935; Smith later sued for divorce alleging Gladys's adultery with Harry Shelley. Larry was born to Gladys in December 1937, before her divorce from Smith became final, and Gladys later married Shelley in September 1938, separating from him the same day. After Shelley's death intestate in 1963, Larry claimed he was Shelley's son and offered evidence including testimony from Smith that he had no access to Gladys after separation, letters from Gladys to Shelley, evidence of Shelley's nonsupport conviction regarding Larry and Joyce as 'his minor children,' and other circumstances suggesting Shelley fathered and acknowledged Larry. The trial court found Larry was Shelley's son and entitled to inherit.

Issue

In an equity proceeding to determine whether a claimant is the decedent's legitimated child for inheritance purposes, does the modified Lord Mansfield rule embodied in Code Art. 16, § 66F(b) apply so that the mother's husband may testify to nonaccess after other evidence shows the spouses were living separate and apart at conception? If so, was the evidence sufficient to support findings that Shelley was Larry's father and acknowledged him after marrying Gladys?

Rule

There should not be different evidentiary rules governing proof of the same paternity issue in different proceedings. Accordingly, in an inheritance-related equity proceeding, once persons other than the mother and her husband establish that the mother and husband were living separate and apart when the child was conceived, proof of nonaccess is unnecessary and both the mother and her husband are competent to testify as to nonaccess and any other relevant matter, consistent with Code Art. 16, § 66F(b). If a man afterward marries the mother and acknowledges the child, the child is legitimated under Code Art. 46, § 6 and may inherit as if born in wedlock.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In an equity action in Baltimore seeking a share of Nolan Reed's intestate estate, Tessa claims Nolan was her father even though she was born while her mother was still married to Owen Pike. A former landlord testifies that Tessa's mother and Owen had been living separate and apart throughout the likely period of conception, and Owen then offers testimony that he had no access to his wife during that time.

Should the court treat Owen as competent to testify?

Explanation. The controlling rule is that the evidentiary framework used in statutory paternity proceedings also applies in an equity inheritance case involving the same paternity issue. Once third-party testimony shows the mother and husband were living separate and apart when conception occurred, it is unnecessary to establish nonaccess first, and both spouses become competent to testify to nonaccess and any other relevant matter.