18 D.C. 62 (D.C.D.C. 1888), 10,300, Thomas v. Holtzman

Docket Nº:In Equity. 10,300.
Citation:18 D.C. 62
Opinion Judge:Mr. Justice MERRICK:
Attorney:Messrs. COLE & COLE for complainants. Messrs. A. A. BIRNEY and E. A. NEWMAN for defendants:
Case Date:November 26, 1888
Court:Supreme Court of District of Columbia

Page 62

18 D.C. 62 (D.C.D.C. 1888)




In Equity. No. 10,300.

Supreme Court, District of Columbia.

November 26, 1888

1. Where slaves with the consent of their masters lived together in the State of Maryland as husband and wife, such a union, according to the custom of that State, was sufficient to establish a marriage between the parties. Consequently, under the act of Congress of February 6, 1879, the issue of such a marriage must be regarded as legitimate in the District of Columbia for all the purposes of descent and inheritance.

2. Where the defendant in a partition suit has no interest in the moiety claimed by the complainants, the court will not scrutinize very closely the weight of the testimony introduced upon the issue raised as to the title of the complainants as heirs of the admitted former owner.

BILL in equity for partition. Heard in General Term in the first instance.

THE FACTS are sufficiently stated in the opinion.

Messrs. COLE & COLE for complainants.

Messrs. A. A. BIRNEY and E. A. NEWMAN for defendants:

The plain case here presented has never been before the court. In Thomas vs. Ragan and Green vs. Norment the court held that " the fact that parties who had been slaves came to this District and lived as free people , in the relation of husband wife, for some time, was evidence of actual, legal marriage between them." 5 Mackey 86.

There is no such proof here, and nothing which supplies its place.

In Maryland it has been directly held that a ceremony of marriage is necessary to a valid union.

In Denison vs. Denison, 35 Md. 361, it appeared that the parties agreed to thenceforth regard each other as husband and wife. " That in pursuance of such agreement, they cohabited and lived together as man and wife; that the appellee was maintained and supported by the deceased up to the time of his death, as his wife, and that they both acknowledged, recognized, and acted towards each other in all things as husband and wife, and were known, treated, and reputed to be such among their friends and acquaintances."

The court held (page 379) that the acts of 1715 and 1717 " clearly shows that no such marriage as that here alleged to have been contracted was ever contemplated by the legislature or was ever supposed for a moment to be good . The Act of 1777, Ch. 12, concerning marriages *** plainly indicated the understanding of the legislature to be that no marriage was to be thereafter good and valid unless celebrated by some religious rites and ceremonies. The union was held to be no marriage.

Applying then to the union of slaves in Maryland the same rule as that applied by the Maryland courts to unions of free persons in that State, it is clear that Milly Thomas' connection with either of her so-called...

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