OPINION OE THE COURT.
— Elias Garcia died intestate on the 9th day of July, A. D. 1910, the owner of real estate involved in this suit. The plaintiff claimed to be the illegitimate child of said Garcia, and that he had been recognized as such in writing, and brought this action in ejectment to recover possession of the real estate of which his alleged father died seized. TJpon the trial it was stipulated that all the property described in the complaint was the property of Elias Garcia at the time of his death; that said Garcia was never married; that, in the absence of direct heirs, all the property would be inherited by his mother, Petra G. Garcia, and that the said Petra G. Garcia was at all times mentioned in the complaint in possession of the same. The case was tried to a jury upon issue framed upon two questions, viz.: (1) Was the plaintiff the illegitimate son of Elias Garcia; and (2) was he recognized as such in writing? The jury returned a general verdict for the defendant, upon which judgment was rendered for defendant, from which judgment this appeal is proseciited.
Section 2038, C. L. 1897, reads as follows:
“Illegitimate children shall inherit from the mother and the mother from the children; they shall inherit from the father whenever they have been recognized by him as his children, but such recognition must have been general and notorious, or else in writing. And they shall inherit only when the father has no legitimate children.”
Appellant claims that there is no evidence to support the verdict returned by the jury. In view of this contention, it is necessary to review the facts in the case.
On behalf of the plaintiff, his mother testified that Elias Garcia was the father of the child: that it was be-*162gotten in Albuquerque, N. M., in September or October, 1899; that she was married to one Jacob Grates in March or April, 1900, and that the child was born about throe months after her marriage to Jacob Grates; that some timo afterwards she received a letter from Garcia in which he acknowledged that he was the father of the child; that the letter had been lost or destroyed. She also testified in detail of the relations which existed between the parties and the facts in the case. The above statement, however, summarizes briefly the material portions of her evidence. Two other witnesses, the sister of the plaintiff’s mother and her husband, were produced by plain-tic, who testified to having seen the alleged letter wherein it was claimed Garcia had recognized that he was the father of plaintiff, and as to the contents of the letter.
On behalf of the defendant three witnesses were introduced who testified that Garcia was not in Albuquerque between August, 1899, and January or February, 1900; one of said witnesses having roomed with him constantly in Kansas City, Mo., during a large portion of the time while he was so absent from Albuquerque.
[1] It being conceded that Paul Grates was born in lawful wedlock, the presumption arises that he was the legitimate child of such marriage. This rule is universal, and is laid down by Prof. Jones, in his “Blue Book on Evidence, vol. 1, § 93, as follows:
“There is no presumption of law more firmly established and founded on sounder morality and more convincing reason than the presumption that children born in wedlock are legitimate.”
See, also, Gaines v. New Orleans, 6 Wall. 642, 18 L. Ed. 950; Gaines v. Hennen, 24 How. 553, 16 L. Ed. 770; Adger v. Ackerman, 115 Fed. 124, 52 C. C. A. 568; Zachmann v. Zachmann, 201 Ill. 380, 66 N. E. 256, 94 Am. St. Rep. 180; Weatherford v. Weatherford, 20 Ala. 548, 56 Am. Dec. 206, and note.
This presumption being thus raised, the mother was not a competent witness, under the facts in this case, to prove that the child was not begotten by the man who became her husband before its birth (Jones on Evidence, *163§ 97; Wallace v. Wallace, 137 Iowa, 37, 144 N. W. 527, 126 Am. St. Rep. 253, 15 Ann. Cas. 761, and note, 14 L. R. A. [N. S.] 544, and note), and the court should not have permitted her to testify that the child was begotten by Garcia.
[2] But, even assuming that her testimony could be considered by the jury, she was disputed by the evidence that at the time conception must have occurred Garcia was not- in Albuquerque, where she was, and by other facts and circumstances, so that the question as to whether Garcia was the father of the child was a disputed question of fact for the jury to decide. The jury having determined that Garcia was not the father of the child, and its verdict being supported by substantial evidence, this court will not interfere with or disturb the same, and the remaining questions attempted to be raised by appellant become of no importance.
Finding no prejudicial error in the record, the judgment will be affirmed; and it is so ordered.
Hanna and Parker, JJ., concur.