Bonds v. Foster

• Decision Date: 01 January 1871
• Citation: 36 Tex. 68
• Parties: B. G. BONDS, EXECUTOR, AND ANOTHER v. LEAH FOSTER AND OTHERS.
• Court: Texas Supreme Court

36 Tex. 68

B. G. BONDS, EXECUTOR, AND ANOTHER

v.LEAH FOSTER AND OTHERS.

Supreme Court of Texas.

1871.

1. F., the owner of a female slave, lived in concubinage with her in Louisiana, whence, in 1847, he took her and her children to Ohio, where he manumitted them by deed. He left them in Ohio for about four years, and supported them during the time, returning there himself about once in each year, and on these occasions staying with the family and cohabiting with the woman. He then brought the woman and children from Ohio, and removed with them to Texas, where he continued to reside until his death, about the 1st of January, 1867; and during this period he had the woman and children at his residence, and cohabited with the woman. In 1866 he made his will, and devised the bulk of his property to them, but provided in it that if the woman married she should forfeit her share. After his death his executor reported his estate insolvent, and, by order of the probate court, sold his homestead place for the payment of debts. This suit was brought by the woman for herself and her minor children, against the executor and the purchaser of the homestead, alleging that the plaintiffs were the widow and minor children of the decedent, and as such entitled to the homestead and other exempted property, and praying judgment therefor. Being submitted for trial by the district judge without a jury, he decreed to the plaintiffs the relief prayed for, on the ground that a putative marriage between F. and the woman was established by the facts above indicated. Held, that there having been no legal impediment to a marriage between the parties in the State of Ohio, their cohabitation while there might have raised a presumption of a marriage there, and this would not be destroyed by their subsequent removal to and residence in Texas, where the law then prohibited marriage between a person of the white and one of the black race.

2. Since the adoption of the Fourteenth Amendment to the Constitution of the United States, a marriage between a white man and a negress may, it seems, be established by proof of cohabitation, etc.

3. A devise to a woman, made forfeitable in case she should marry after the testator's death, is a cogent circumstance, in connection with proof of long cohabitation, to establish a marriage between the testator and the devisee.

APPEAL from Fort Bend. Tried below before the Hon. L. Lindsay.

In the opinion of the court and the first head-note, the facts of the case, though much condensed, are sufficiently stated.Geo. Quinan and P. E. Peareson, for the appellants.

Gustave Cook, for the appellees.

WALKER, J.

This case was submitted to his honor the district judge, on the law and the facts, and his judgment is appealed from to this court.

A. H. Foster many years ago resided in the State of Louisiana, and, among other slaves, was the owner of one Leah, whom he made either his wife or his concubine. The question here presented is, was Leah the wife of Foster, and are her children the offspring of his...