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02/26/76 SERAFIN v. SERAFIN

February 26, 1976

SERAFIN
v.
SERAFIN



Appeal from Wayne, Charles Kaufman, J.

Leave to appeal applied for.

Danhof, P. J., and McGregor and N. J. Kaufman, JJ. McGregor, J., concurred. Danhof, P. J. (dissenting).

SYLLABUS BY THE COURT

Opinion of the Court

1. Divorce -- Child Support -- Bastards -- Lord Mansfield's Rule -- Constitutional Law -- Due Process.

In a suit for divorce by a plaintiff husband who denied paternity of a child, the application of Lord Mansfield's rule, which provides that neither husband nor wife will be permitted to bastardize the issue of the wife after marriage by testifying to the non-access of the husband, unconstitutionally takes property from the plaintiff without due process of law where application of the rule prevents plaintiff from introducing his own evidence and makes the presumption of legitimacy an irrebuttable presumption.

2. Statutes -- Presumptions -- Arbitrariness -- Constitutional Law -- Due Process.

A statute creating a presumption that is arbitrary or that operates to deny a fair opportunity to repel it violates the due process clause of the Fourteenth Amendment.

3. Descent and Distribution -- Bastards -- Inheritance -- Statutes.

The common law rule preventing inheritance by an illegitimate child from his or her mother has been abrogated by statute (MCLA 702.81; MSA 27.3178[151]).

4. Bastards -- Legitimation of Child -- Descent and Distribution -- Statutory Inheritance -- Statutes.

An illegitimate child may be legitimized by his or her father and may share statutory inheritance equally (MCLA 722.717; MSA 25.497).

5. Bastards -- Support -- Paternity Act -- Statutes.

An illegitimate child may be granted support from his or her father under the paternity act (MCLA 722.711 et seq.; MSA 25.491 et seq.).

Dissent by Danhof, P.J.

6. Appeal and Error -- Bastards -- Evidence -- Lord Mansfield's Rule -- Courts -- Case Precedent.

Controlling precedent of the Michigan Supreme Court precludes alteration of Lord Mansfield's rule by the Court of Appeals.

7. Evidence -- Bastards -- Lord Mansfield's Rule -- Legitimation of Child -- Constitutional ...


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