Bell v. Bell

• Decision Date: 03 February 1916
• Docket Number: 6 Div. 121
• Parties: BELL et al. v. BELL et al.
• Court: Alabama Supreme Court

71 So. 465

196 Ala. 465

BELL et al. v. BELL et al.

6 Div. 121

Supreme Court of Alabama

February 3, 1916

In Response to Application for Rehearing, March 30, 1916

Appeal from Probate Court, Jefferson County; J.P. Stiles, Judge.

Action by Cornelia Bell and another against Mary Bell and others. Judgment for plaintiffs and defendants appeal. Reversed and remanded, with directions.

Bondurant & Smith, of Birmingham, for appellants.

B.F Ray and David S. Anderson, both of Birmingham, for appellees.

SAYRE J.

This is the second appeal in this case. See Bell v. Bell, 183 Ala. 645, 62 So. 833, where a discussion of the evidence as it then appeared may be found in the dissenting opinion of De Graffenried, J.

There is no reason to doubt that appellee George Bell is the natural son of Jim Bell, deceased, by the other appellee Cornelia Bell, as now for the purpose of this case she calls herself; nor is there any need to deny that Jim, in a general way, recognized and treated George as his son. But in view of well-known conditions obtaining among negroes in the Southern States before and for some time after the conclusion of the War between the States, these facts can be of little consequence in the settlement of the issue disputed between the parties, viz., whether there was a slave marriage between Jim and Cornelia, recognized by them as an existing status on September 29, 1865. Several children were born to this couple. Of them appellee George was the eldest, and Cornelia at one place in her testimony--though this, it is conceded is not in accord with the general drift of her deposition--fixes the date of his birth, according to the best of her recollection, at about a year after the marriage she claims to have contracted with Jim and about two years after the soldiers came back from the War. It is not disputed that a marriage between Cornelia Bell and Albert Jackson was solemnized under a license and in due form 25 years before this controversy arose, since which time she has lived with Jackson continuously as his wife, bearing to him six children; that before her marriage to Jackson she had intermarried with Nathan Oliver and had borne to him two--some of the witnesses say four--children; that Jim Bell the distribution of whose estate is the matter in dispute, and Mary, one of the appellants, were married under a license according to the solemn form of law in 1875, more than 35 years before Jim's death in 1910, during which time they lived together as man and wife, children being born to them; and that during all this long time no question was raised as to the lawfulness of the relations assumed by these parties until the estate of Jim Bell came on for settlement and distribution. It is not necessary to deny that Jim and Cornelia cohabited in slave times in a manner somewhat like man and wife, though even this may appear to be doubtful when the approximate date fixed for the birth of George, and evidence tending to show Cornelia was of loose habits and had children before she settled down between the cold sheets of matrimony, are considered in connection with the common knowledge that sex relations lacked restraint, and births without semblance of wedlock were frequent, among slaves who knew or could do no better and had not learned the practical art of race suicide. But however that may have been, considering the undisputed facts and the consequences to the innocent parties to these formal marriages and their offspring, appellees assumed a very heavy burden of proof when they undertook to show that the relations in which these parties have lived so long were bigamous by reason of the fact that Jim Bell and Cornelia Jackson had contracted a slave marriage and were living together, recognizing each other as man and wife (Washington v. Washington, 69 Ala. 281), on the 29th of September, 1865, the date of the Constitutional Ordinance, which by no means legitimized illicit relations nor imposed upon parties the burdens of contracts they had not intended to assume, but only ratified prior slave marriages between freedmen and freedwomen then living together in mutual recognition of each other as man and wife (Moore v. Heineke, 119 Ala. 627, 24 So. 374; Weatherford v. Weatherford, 20 Ala. 548, 56 Am.Dec. 206).

The...