Green v. Green

• Decision Date: 10 December 1894
• Citation: 126 Mo. 17,28 S.W. 752
• Court: Missouri Supreme Court
• Parties: GREEN v. GREEN et al.<SMALL><SUP>1</SUP></SMALL>

28 S.W. 752

126 Mo. 17

GREEN v. GREEN et al.¹

Supreme Court of Missouri, Division No. 1.

December 10, 1894.

VOID MARRIAGE — LEGITIMACY OF CHILDREN.

1. Rev. St. 1889, § 4475, providing that "the issues of all marriages decreed null in law, or dissolved by divorce, shall be legitimate," does not render a decree annulling a marriage necessary in order to legitimate the children, there being evidence which would justify the annulment of the marriage.

2. Under Rev. St. 1889, § 4475, which provides that the issue of void marriages shall be legitimate, where defendant married decedent in good faith, believing him eligible, their children are legitimate, although at the time of the marriage decedent had a wife living.

Appeal from circuit court, Polk county; James G. Simpson, Special Judge.

Action by Rebecca Green against Victoria Green and others in ejectment. Judgment for plaintiff, and defendants appeal. Reversed.

Upton & Skinker, for appellants. Hudson, Underwood, Rechow & Pufahl, for respondent.

MACFARLANE, J.

The suit is ejectment to recover the undivided half of certain lots in the town of Humansville, Polk county. The answer was a general denial, and a plea of the pendency of another suit in the same court, between the same parties, for the possession of the same property. The trial was to the court, without a jury, and resulted in a verdict for the plaintiff, and defendants appealed. The following facts were developed at the trial: About the year 1878, William Green, who represented himself as being a single man, was married in due form to defendant Victoria Rogers. Two children, defendants Fannie Green and William M. Green, were born of the marriage. The said William Green died, testate, about the month of March, 1889, possessed of the land in question. By his will he left to defendant a life estate in said property, with remainder to his said children. Defendant Victoria was made executrix, but failed to qualify; and on the 30th day of May, 1891, the estate was, by the probate court of the county, ordered into the hands of the public administrator for administration. On the 2d day of September, 1891, plaintiff executed, acknowledged, and filed in the probate court of Polk county the following paper: "Know all men by these presents, that I, Rebecca Green, widow of William Green, deceased, who departed this life on the 23d day of March, A. D. 1889, at the city of Humansville, in the county of Polk and state of Missouri, do hereby declare my intention to elect to be endowed in the property of the said William Green, deceased, both real and personal, in accordance with and under and by virtue of section 4518 of the Revised Statutes of 1889 and chapter 55 of said statutes concerning dower, and of the Revised Statutes of 1879, section 2190." Plaintiff offered evidence tending to prove that in July, 1851, plaintiff and the said William Green were married in the county of Cork, Ireland, and that no children were born of the marriage; that in December, 1877, her said husband abandoned her, and came to the United States; that she had no knowledge of where he went until after his death, and they were never divorced. At the request of plaintiff, the court gave, among others, this declaration of law: "That, although it may be shown from the evidence that the said Wm. Green may have contracted a second marriage with the defendant Victoria Rogers (alias Victoria Green), which marriage may have been duly solemnized under the forms of law, and if of the result of said marriage there was certain issue born, who are the codefendants in this action, yet if it be shown from the evidence that, at the time of contracting said second marriage, he had a former wife living, in the person of this plaintiff, then said second marriage was void, and the defendants William and Fannie Green are not capable of inheriting from the said Wm. Green, and the said Victoria is entitled to no rights as a result of said marriage." The court refused the following declaration of law, asked by defendants: "The minor defendants herein are capable of inheriting, and therefore plaintiff can acquire no rights in the property of Wm. Green by filing her election under the statute." The question is whether the children of the marriage of William Green to defendant Victoria are capable of inheriting from their father, so as to defeat the right of plaintiff to elect, under section 4518.

1. The policy of our law is to make legitimate children of all marriages contracted honestly and in good faith by one of the parties. The children of such marriages, when entered into in good faith by one or both of the parties, should not in right be stigmatized as bastards, and disinherited on account of the fraud of one or the honest misapprehension of both of the parents. To carry out this policy, remedial statutes have been passed modifying the harsh common-law rule on the subject. Thus, our statute on the subject of divorce, which gives one party a right to dissolve the marriage in case the other had a husband or wife living at the time it was contracted, expressly provides that no such divorce shall effect the legitimacy of the children. Section 4500. This provision has been retained on our statute books since the revision of 1845, and possibly longer. Again, under our statute law of descent and distribution it was declared as early as 1825 "that the issue of all marriages deemed null in law, or...