36 Md. 447 | Md. | 1872
delivered the opinion of the Court.
The main questions arising upon this appeal are, whether the appellees are nephews and nieces of Andrew I). Jones, deceased, and, if they are, whether they are entitled to a distributive share of his estate? After a careful examination of the evidence in the record, we are satisfied that Andrew D. Jones and David Jones were the sous of Kate Jones, and brothers, and that the appellees are the children of David and Hannah Jones. Without entering, in this opinion, into a detailed review of the evidence, it is sufficient to say that it leaves no doubt that David Jones was married, while yet a slave, to Hannah Williams, a free woman, and that some of her children were born before David became free and some afterwards, and that David and his brother Andrew were both manumitted by Margaret Gardner by deeds, both of which were executed on the 10th of November, 1814, and recorded on Jhe 26th of the same month — David’s freedom to commence five years and Andrew’s six months thereafter. David and Hannah lived together as man and wife, and acknowledged and treated each other as such, and were so recognized by all who knew them, long after David’s emancipation, and up to the time of Hannah’s death, which appears to have
Mr. Dulaney further argues that the validity of a marriage depends upon the immediate effect of its celebration, and that, if it is not valid then, it could not be made good by the subsequent accidental circumstance that the parties acquired their freedom, and to illustrate the argument, he puts the case of a man marrying a woman while he bad a wife still living, and says that the accidental circumstance of the first Avifc dying would not make the second marriage valid. It is true that in such a case the second marriage AArould not be made valid by the death of the first wife, because a marriage under such circumstances is a great moral wrong, and a high crime
After David Jones became free, he continued to live with • Hannah as his wife to the time of her death, they recognizing and treating each other as husband and wife, and taking their children to the church which they were in the habit of attending, to be baptized. We should be extremely reluctant to hold a marriage, which had taken place with the consent of the owner of slaves, and under the sanction of a Statute, and thus ratified after they became free, to be, void, and the issue
Exceptions were taken by the appellant to certain interrogatories propounded to witnesses by the counsel of the appellees, as leading. They go to the form of the question merely, and should have been made and noted at the time they were put, in order that the party might have had an opportunity of remodelling them. If not made at that time, they cannot be made afterwards. Smith vs. Cooke, 31 Md., 179.
Exceptions were also taken to the admission in evidence of the declarations of Kate, David and Andrew D. Jones, as to the relationship existing between them, and between them and the appellees. Evidence of declarations of the members of a family as to pedigree, are always admissible. Charlotte Hall School vs. Greenwell, 4 G. & J., 416; Cope’s Adm’r. vs. Pearce, 7 Gill, 262-263; Craufurd vs. Blackburn, 17 Md., 54.
It was also argued that the petitioners were incompetent as witnesses under the Act of 1868, ch. 116, the other party being administratrix. It is very clear that they do not come within either the letter or spirit of the exception, which is alleged to exclude them. The object of the Act was to place parties upon an equal footing and to exclude the other party, when one party to the contract, &c., was dead, lunatic, &c. In the case before us there was no contract between the deceased and the appellees, which the latter are endeavoring to enforce against his estate, nor is this a suit against his administratrix for the purpose of establishing a charge against her intestate or his estate. But it is a contest between his widow and the appellees, who claim to bo next of kin and heirs-at-law of the intestate, as to the manner in which his estate shall bo distributed, the widow claiming the whole, and the appellees the one-half. There is nothing in the Act of
We concur in the rulings of the Orphans’ Court, and are of opinion that the appellees are entitled to one-half o'f their uncle’s estate, and the decree appealed from will be affirmed.
Decree affirmed.