109 So. 782 | La. | 1926
Appellants are the surviving sisters and a surviving niece of Lettie Mack, wife of Harry Johnson. They appeal from a judgment rejecting their demands to annul, in part, the clause in the will of the decedent, wherein she instituted her husband as her universal legatee. Their contention is that the universal legatee was living in open concubinage with the testatrix, and therefore, as to him, under Civ. Code, art.
The testatrix married Harry Johnson in the year 1906. Prior to this she had been married to Jeff Gilmore. There is no record of the dissolution of this marriage, but the evidence overwhelmingly shows the decedent, Jeff Gilmore, and Harry Johnson believed the decedent had obtained a divorce from Gilmore before she married Johnson. On this point, the uncontradicted testimony is that all of said parties, who were ignorant negroes, were told by an attorney at law, now deceased, employed and paid for the purpose, that he had obtained the divorce, and that both Gilmore and his wife were free to remarry. Acting upon this information the testatrix married Johnson, and Gilmore, in *977 the year 1907, married Emma Jackson. Subsequent to her death he married Nellie Haslett, with whom he was living at the time he testified in the case.
After their marriage, the testatrix and Harry Johnson, the defendant, lived publicly and avowedly as husband and wife and were so regarded in the humble social sphere in which they moved and labored.
We think they entered into the matrimonial relation in the reasonable and honest belief that they had the right to do so. This being the case, the marriage produced all the legal effects of a valid marriage. Civ. Code, arts.
Civ. Code, art.
In the present case, the universal legatee and the testatrix lived openly as husband and wife under the solemn sanction of what purported to be a legal marriage. Although this marriage was null, the good faith of the parties has given it the same effect as if it were not null. It has the ordinary effects of a valid marriage. One of these effects is, *978 necessarily, that the status of husband and wife existed from the date of the marriage until the death of the putative wife. Therefore, during said period, the parties were not living together in open concubinage, and there is no legal impediment to the right of the putative husband to take by will from his putative wife.
For the reasons assigned, the judgment appealed from is affirmed, at the cost of the appellants.