85 Ky. 49 | Ky. Ct. App. | 1887
delivered the opinion oe the court.
Tlie appellants and the appellees are each claiming-to be the lawful heirs of John L. Harris, deceased. Appellants are his brothers and sisters, and the appellees are his children, nnder a marriage prohibited by law, and void by an express provision of the statute.
The court below adjudged in favor of the children, and the brothers and sisters appeal. Their right de
By the second section of article 1, chapter 52, General Statutes, similar to the Revised Statutes, “marriage is prohibited and declared void — 1. With an idiot or lunatic; 2. Between a white person and a negro; 3. Where there is a husband or wife living from whom the person-marrying has not been divorced; 4. When not solemnized or contracted in the presence of an authorized person or society; 5. When, at the time of marriage, the male is under fourteen, or the female is under twelve years of age.”
Section 3 of the same statute provides that “the issue of an illegal or void marriage shall be legitimate,” except the issue of an incestuous marriage; that the marriage between a white person and a negro or mulatto shall not loe legitimate; and that when one of the parties is an idiot or lunatic, the issue shall be legitimate as to both. The third section contains all the exceptions to be found in the statute on the subject, and therefore, by reason of section 2, the offspring of all marriages declared void by that section are legitimate, unless within the exceptions mentioned in section 3.
It is, however, under section 4 that the appellants, the brothers and sisters, assert their claim to the estate of the decedent. That section reads: “4. Where the marriage is contracted in good faith, and with the belief of the parties that a former husband or wife then living was dead, the issue of such marriage, born or' begotten before notice of the mistake, shall be the legitimate issue of both parents.”
Since the adoption of the Revised Statutes, mere cohabitation and a recognition of the marital relation between parties, does not evidence a valid marriage, or make the parties husband and wife. The old common law rule has been abolished, and the marriage in this State must be in accordance with the mode prescribed by the statute, and if not, the marriage is void. So it is immaterial how long Harris and the mother
The act of 1797 declared in substance “that the issue in marriage deemed null in law shall nevertheless be legitimate.” That act continued in force until the adoption of the Revised Statutes, when certain exceptions to the statute, by which such children were made legitimate, were inserted. The law of the Revised Statutes is embodied in the General Statutes, and the exceptions are to be found in section 3, already given. Where a marriage actually takes place, that is, when it is solemnized according to the forms of law, although void as between the parties, their offspring will be deemed legitimate, unless they come within the exceptions mentioned: 1. The offspring of an incestuous marriage; 2. The offspring of a marriage between a white person and a negro or mulatto. ' We find no other exceptions mentioned in the statute, and section 4, relied on by counsel, is meaningless, unless its enactment was intended to prevent those who married under the mistaken belief that their husband or wife was dead, from suffering the penalties of the law imposed
In our opinion, these appellees are entitled to the •estate 'of their father, and the judgment below was proper, and it is now affirmed.