Buchanan v. Harvey

35 Mo. 276 | Mo. | 1864

Bates, Judge,

delivered the opinion of the court.

Alexander M. Harvey, who had resided for many years in the Indian country, died in that country on the Missouri river, near the mouth of the Yellowstone, in 1854. For many years before his death, and up to the time of his death, he had two wives, who were sisters, and of the Blackfeet tribe of Indians. They were both considered and treated by him as his lawful wives, and he had by each one of them a daughter. These daughter's, Susan and Adeline, who were of about the same age, he brought to St. Louis, when they were four or five years old, and confided them to his brother, who lived at St. Louis, to be by him reared and educated. He always treated them and spoke of them as his legitimate children, and stated his intention to educate them and bequeath to them his estate; and when he was taken ill and expected soon to die, he attempted to execute a will in their f&vor, but the instrument could not be established as a will because it was not executed in proper form.

The evidence in regard to his relation to his two wives does not show when that relation began, but does show him to have lived with thém as his wives in conformity to the customs of the Blackfeet Indians, among whom polygamy was lawful. The testimony is, that “ among the Blackfeet Indians a man might have several wives, who were considered his lawful wives according to the Indian custom; and the usual custom was to buy the oldest marriageable daughter of a family, and that the younger ones, as they grew up, became his, in right of having purchased the oldest.”

In this case, Harvey had stated to friends that the women were his lawful wives according to the customs of the,BIack-feet Indians, Peegan band. He said that he bought them according to the customs of the country, and gave a running horse and other things for them.

After his death, his estate was. administered at St. Louis, and at the close of the administration the St. Louis probate court ordered the estate to- be distributed to the said two daughters of Harvey, Susan and Adeline. From this judgment of the probate court, Buchanan, a half-brother of Harvey, and so claiming to be an heir at law, upon the allegation of the illegitimacy of the children, Susan and Adeline, appealed to the Circuit Court. That court affirmed the judgment of the probate court, and Buchanan appealed to this court.

Upon the principles stated by this court in the case of Johnson v. Johnson’s Adm’r, 80 Mo. 72, the validity of the marriages of Harvey with the two women could probably be maintained; but our statute, declaring the issue of all marriages deemed null in law to be legitimate, precludes the necessity of that inquiry. It is clear that marriage in fact existed with both of the Indian women; Harvey’s connection with them was not a mere casual commerce between the sexes, but there was a cohabitation by consent, for an indefinite period of time, for the procreation of children. There being marriage in fact with the mother' of each of the children, the statute legitimates them both.

Judgment affirmed.

Judges Bay and Dryden concur.