108 Ky. 414 | Ky. Ct. App. | 1900
Opinion or the court by
Reversing.
Two questions are raised1 upon- the appeal in this case. The first question to be determined is whether the appellant Phoebe Botts or the appellee Sarah Botts is the widow of Philip Botts, deceased, and as such entitled to the rights belonging to a widow; and the second, whether or not the children of Sarah Botts, alleged to be the offspring of her slave marriage with Philips Botts, are entitled to inherit from their alleged father. The evidence discloses this state of facts: Philip Botts, a negro slave, was- married about the year 1852 or 1853 to Sarah, who was- also a slave. They lived as husband and wife, ás that relation
Previous to the passage of this act, the marriage of slaves gave no marital property rights, and the parties to such slave marriages subsequent to the passage of this act only acquired such rights’by complying with the express provisions there of. In the case of Estill v. Rogers, 1 Bush, 62, Judge Robertson construed this act in a case where husband and wife were both slaves until emancipated by the constitutional amendment of December 19, 1865, having lived together in that relation for more than fifteen years preceding the death of the wife in April, 1866, and held that, having failed to comply with the requisitions thereof, they were not legally married, and the husband was not entitled to be her administrator. The same doctrine was announced in Stewart v. Munchandler, 2 Bush, 278. And as appellee and Philip Botts never complied with the provisions of the act of 1866, we are of the opinion that the marriage of 1852 did not give appellee
On May 22, 1900, Judge Burnam delivered the following extended opinion in this case:
We have been asked to extend and make more definite the opinion heretofore filed in this case, defining the rights of the appellant Phoebe Botts and the appellees, Lucy, Harry and Leonora Crump. As stated in the original opinion, the evidence of the legal authority authorizing the marriage of Philip and Phoebe Botts was not absolutely conclusive, as there was no documentary evidence offered on this point, and the parol testimony as to the authority under which their nuptials were celebrated is somewhat