9 Va. 143 | Va. Ct. App. | 1804
Lead Opinion
Upon the whole of the testimony, I think the fact of both marriages is proved; and if the question turned entirely upon those facts, I should be of opinion that the judgment of the district court ought to be affirmed. 4 Burr. 2059. 1 Black. Rep. 632. 1 Black. Com. 440, 457. 5 Rep. 98. 2 Black. Com. 436. 1 Salk. 120. 3 Lev. 410. Bull. Nis. Pr. 112. 2 Esp. 209. But the act of assembly, which declares, that “ The issue of marriages deemed null, in law, shall nevertheless be legitimated,” does, in my apprehension, apply to the daughters in this case, notwithstanding all that was urged to the contrary. The father did not die until after the commencement of that act: The rights of the daughters to his property did not commence until his death : The question, as between these parties, did not, nor could it exist, until that event; and the act was then in full operation. The words null and void, are perfectly convertible terms, and mean the same thing. The widow of the son was not entitled to administration in preference to the daughters, had she even administered upon the son’s estate, which does not appear. Nor could she, as guardian to the grand children, have been entitled to any preference, had she been appointed- guardian before administration granted, which was not the case. The act of 1785, it should be remembered, relates to the disposition of property only; and proceeds to shew who shall be admitted to share the property of a person dying intestate, notwithstanding any former legal bar to a succession thereto. And, in that light, the law ought to receive the most liberal construction ; it being evidently the design of the legislature, to establish the most liberal and extensive rules of succes
This is a mere civil controversy to ascertain the right of property. The right of administration is chiefly important as it depends on, and decides the right of property.
Considered as a civil controversy, and keeping the first marriage out of view, for the present, there is no doubt but that the appellants might shew their legitimacy under the last marriage on reasonable testimony. I mean that they should not be driven to that rigour of proof which is necessary in actions of criminal conversation, and prosecutions for bigamy. The constant practice in questions of legitimacy, depending on a single marriage, bears out this idea.
The appellees, however, not satisfied to rest their case on the defect of proof of the actual celebration of the second marriage, set up the pretext of a former and subsisting marriage. They do not do this on the ground of crime, nor could any thing proved or adjudged in this proceeding affect the parties to the second marriage, even if they were living: They set up the first marriage merely to shew a want of power in the wife to consent to the second, which therefore is supposed to be void. They do not take a stronger ground’ than they would had they alledged infancy or idiocy, which would equally make void the second marriage, and for the same reason; a want of power or capacity to consent to the contract.
The appellees also, on their part, in proving the existence of the first marriage, find it necessary to claim an exemption from the standard of rigid proof. They are also entitled to it; for, in every branch of this proceeding, we go by
The second marriage, therefore, was not lawful; it was even void; but we cannot, in this case, say that it was criminal. Circumstances may exist, such as a belief of the death of the first husband, or a seven years absence by him, which may render the second marriage even innocent. We are bound to consider this marriage innocent, for we cannot, in this proceeding, enquire into its guilt. But if it were otherwise, if the legislature should even be supposed to consider every second marriage, living a first husband or wife, as criminal, wherefore should they visit the sins of the parents upon the innocent and unoffending offspring? But this was not the temper of the legislature. In the case of incestuous marriages, where the parties with full knowledge of the everlasting bar which does and ought to exist be-' tween them, enter into this contract, and produce an innocent offspring in defiance of laws human or divine; where you cannot suppose a circumstance of excuse, except the scarcely possible one of an ignorance of the consanguinity which exists between the parties, their offspring is not bastardized by our laws, on the contrary it is expressly provided (New Code, 195, § 13) that the nullification of such marriages shall not be construed to render the issue illegitimate.
This is a strong case to shew the"sense of the legislature, that the turpitude, or guilt of the marriage, shall not break upon the heads of their innocent offspring. But there is even a stronger case yet; and that is, that the children of a man and woman, who afterwards intermarry, if recognized by him. shall be thereby legitimated. (New Code, 170, § 19.)
Considering too, that, in our present view, the first marriage only produced an incapacity to consent to the second, a contrary construction would seem to involve, (as standing on the same principle,) the offspring of marriages contracted during a state of infancy or idiocy, although these impediments might long have ceased, and the parties lived happily together at, and after the time of the birth of their offspring. The construction I contend for, taken in connexion with the stronger case, expressly provided for, and just noticed, of children born prior to any marriage; with the general policy of our law, which is much more favourable to bastards, than the law of England ; with that policy which, in regulating descents, has considered as most worthy the claims of those who stand nearest in the affections of the last occupant, (and it is clear that the affections of a parent towards his child, do not at all depend upon the legal validity of his marriage,) must at once overrule the arguments drawn from the critical exposition of the word null, as alledged to be understood in some legal authors on this subject, and in some of our former acts. I admit that, generally, and in the total absence of opposing circumstances, a word used in a statute, will be understood in the sense in which it was used in a former statute, or in common law treatises on the same subject: but, in the case before us, this rule of interpretation is overpowered by a contrary construction, arising from a general view of the acts in question, on analagous cases, and from the liberal policy which has prevailed on this subject, since the period to which we are carried back for a
It was said by one of the appellee’s counsel, that the construction I adopt is inadmissible, as tending to encourage bigamy. It was well said in answer, by one of the appellants’ counsel, that considerations of this kind, in relation to the offspring, form no part of the inducements to marriage : But this is not all. The legislature itself has given the answer. That legislature certainly meant not to encourage fornication, or incestuous marriages, and yet it has expressly legitimated the offspring of both.
It was also said, by the same gentleman, that my construction would legitimate the children of a white man and a negro woman, where the marriage ceremony has taken place. The answer is easy and evident. The law concerning marriages is to be construed and understood in relation to those persons only to whom that law relates; and not to a class of persons clearly not within the idea of the legislature when contemplating the subjects of marriage and legitimacy.
It was also said, that in a case like the one before us, (admitting the contiguous residence of the first husband to the wife during her second coverture,) her children might claim two fathers. The answer is, that their legitimacy under the one, or the other marriage, would depend upon circumstances of access, &tc., as in other cases; as in case of a single marriage. Those born during the existence of a lawful marriage are, prima facie, the children of that marriage ; but that presumption is liable to be rebutted and destroyed by facts and circumstances, to be adjudged of by courts and juries. In the case before us, of a second and
This diversity of legitimacy, I admit, is novel: but it is, at least, as reasonable that a father should be assigned by the verdict of a jury and judgment of a court, as by the election of the child; of which, an instance is not wanting under our laws.
I am consequently of opinion, that the judgment of the district court ought to be reversed.
Both marriages are proved •, and the act of assembly legitimates the offspring of the second. I am therefore for reversing the judgment.
Both marriages are proved; and as the act of assembly legitimates the issue of the second, the judgment of the district court must be reversed, and administration granted to the appellants.
Concurrence Opinion
concurred.
Judgment reversed.