137 Va. 445 | Va. | 1923
delivered the opinion of the court.
The appellants, a young mother and her infant child,, claiming to be the widow and heir at law of Charles H. Vanderpool, filed their bill against the appellees, his mother and sister, who had possession of his estate and claimed it as his sole heirs at law and distributees. The defendants took issue upon the allegations of the bill- and denied the alleged marriage of the adult complainant with Vanderpool. The vital and controlling issue presented is whether or not such a marriage ever occurred. The case has been elaborately argued, but we-think it unnecessary to discuss any of the other incidental or collateral issues of fact.
1. For the establishment of her claim the adult com
Vanderpool died in December, 1918, within less than seven months from the date of the alleged ceremony, and the infant complainant here was born after his death, on July 16th following.
The defendants, to maintain the issue on their part, showed that the Kentucky statute requires a license, which can only be issued by the clerk of the county in which the woman resides at the time, or in case of his absence, or during a vacancy in the office, by the judge of the county court; and that it requires the celebrant of the marriage to return the license to the clerk by whom it was issued, with a certificate giving the date and place of the celebration, with the names of two or more witnesses of the ceremony. They show by the local officials then in office that no such license for this marriage was ever issued. They further show by the testimony of the proprietor of the hotel and his wife, who together operated it, that they knew Vanderpool well, and that no such marriage ever occurred at their-hotel either on the date alleged or at any other time. They recollect distinctly the occasion when Vanderpool brought a young woman there as his wife, on the 4th day of June, 1918, and that they occupied a room together at that time. Their evidence is clear, positive, detailed and convincing.
That a common law marriage, or attempted marriage, in Virginia, is void here is settled by the case of Offield v. Davis, 100 Va. 250, 40 S. E. 910.
The case of Eldred v. Eldred, 97 Va. 606, 34 S.
The facts shown in this case are insufficient to prove even a common law marriage, but clearly indicate a meretricious union.
Reynolds v. Adams, 125 Va. 295, 99 S. E. 695, was a very close case, but under the facts there shown it was held that there had been a ceremonial marriage in New Jersey. The principles governing such cases are there fully set forth, and repetition is unnecessary.
Our conclusion, upon the issue of fact raised by the appellants, accords with that of the trial judge. Considering the testimony of the appellant herself, it seems to us clear that she has not sustained the burden which the law imposes upon her to establish the ceremonial marriage which she alleges occurred. It seems to us incredible that such a marriage could have been celebrated at the time and place stated by her, within such a recent period, and that she should be unable to
2. It is claimed, however, that conceding the fact that the alleged widow has no claim, nevertheless, under Code, section 5270, the infant complainant is the heir at law of his reputed father.
That section provides that the issue of marriages deemed null in law, or dissolved by a court, shall nevertheless be legitimate.
It is held in Greenhow v. James’ Ex’r, 80 Va. 636, 56 Am. Rep. 603, that this section does not legitimate issue of cohabitation between a white person and a negro who afterwards marry in a State where such marriages are lawful. So far as we have observed, it is essential, in order to legitimize issue under this statute, that there be a marriage of some kind or the statute can have no application. It does not legitimize issue which is the result of illicit intercourse. There is a similar statute in Arizona, which was construed In re Walker’s Estate, 5 Ariz. 70, 46 Pac. 67. It is held there, where there is also a statute making marriage between white persons and Indians illegal and void, that where there is such a void marriage between a white • man and an Indian woman, solemnized in accordance with the law of the tribe of which the woman was a member, followed by cohabitation on the reservation, a child of such a union does not inherit from his father.
In Missouri, where marriages between negroes and whites is prohibited, it is held in Keen v. Keen, 184 Mo.
In re Shipp’s Estate, 168 Cal. 640, 144 Pac. 143, where there was a ceremony of marriage performed by a priest, and the marriage was in every respect regular save that there was no license, it was held that children of such a marriage, otherwise legal, would inherit under such a statute.
Other pertinent cases are collected in L. R. A. 1916C (note), 764.
While the case is one which arouses the sympathy, we can not find any legal justification for holding that this infant is entitled to inherit from Charles H. Yanderpool under this statute. It is apparent from its language that in order that the statute may operate, there must be a marriage. It may be a marriage which is null and void for any of several reasons, but though the marriage itself be void, the issue is by the statute legitimated. In this case, however, there has not only been a failure of proof that there ever was any marriage, but the proof is convincing to the contrary.
Our conclusion, therefore, is to affirm the decree of the trial court for the same reason which actuated the trial judge—that is, because the complainants have failed to sustain the burden of proof.
Affirmed.