Fout v. Hanlin

• Decision Date: 06 June 1933
• Docket Number: C.C. No. 477.
• Citation: 169 S.E. 743
• Court: West Virginia Supreme Court
• Parties: FOUT et al. v. HANLIN et al.

169 S.E. 743

FOUT et al.

v.HANLIN et al.

C.C. No. 477.

Supreme Court of Appeals of West Virginia.

June 6, 1933.

Syllabus by the Court.

1. "A common-law marriage contracted in this state is not a valid marriage and is deemed null in law; nevertheless, the children of such marriage are legitimate under section 7, chapter 78, Code, which provides that: 'The issue of marriages deemed null In law, or dissolved by a court, shall nevertheless be legitimate.' " Kester v. Kester, 106 W. Va. 615, syl. 1, 146 S. B. 625.

2. Pleadings averring a common-law marriage, must be strictly construed against the pleader. Mere generalities of averment will not suffice. Where the pleadings contain allegations of fact not reasonably consistent with the marriage pleaded, such pleadings must be held insufficient as a matter of law.

Case Certified from Circuit Court, Mineral County.

Suit by Richard L. Fout and another against J. G. Hanlin and others. A demurrer to the petition as amended was sustained, and the ruling certified for review.

Affirmed.

D. E. Cuppett, of Thomas, and Chas. N. Finnell, of Keyser, for plaintiffs.

E. A. See, of Keyser, for defendants.

MAXWELL, President.

This suit is prosecuted under Code 1931, 42-1-9, to establish who are the heirs of Gabriel S. Kitzmiller, deceased, who died in May, 1932. It is averred by the petitioners, Richard L. Fout and Joseph W. Fout, that they are the sons of said decedent by a common-law marriage between him and their mother, Hattie Fout. The defendants are collateral kindred of said decedent. The trial chancellor sustained their demurrer to the petition as amended, and certified his ruling to this court for review.

Petitioners allege that in the year 1886, Hattie Fout, their mother, then about seventeen years of age, together with her parents, two brothers and a sister, moved into the home of said Kitzmiller on land owned by him in Mineral county, where Kitzmiller, then unmarried, had been living alone; that soon thereafter Kitzmiller and Hattie Fout "mutually agreed to then and there become man and wife and then and there assumed and carried out all the usual marital relationships and lived openly as man and wife thereafter"; that for about the next seven years they lived together in the said home as husband and wife, together with her parents and her brothers and sister, and that within said period the petitioners were born, Richard in February, 1887, and Joseph in July, 1891; that at the request of Kitzmiller, Hattie Fout accompanied her parents and brothers and sister in moving from the Kitzmiller home to a house on an adjoining farm where certain work for Kitzmiller was carried on for about two years, and that she then returned with her father and his family to the Kitzmiller home from which they had removed; that all of them remained in the Kitzmiller home for the following three or four years and that during the whole time, including the period of about two years that she lived on an adjoining farm, she and Kitzmiller continued their marital relationship.

It is also alleged that in the year 1899, with the consent of her husband, Hattie Fout accompanied her father and his family when they moved from the Kitzmiller home to the town of Elk Garden in the said county whither they moved in order that her father and her brother might work at coal mining, and that she there kept house for her father and his family because her mother was ill and her sister was too young to assume the domestic burdens; that during the time she so lived at the home of her parents at Elk Garden, her "said husband visited her frequently"; that in the year 1900 there was born to them a daughter which lived but a short time, and that Kitzmiller paid the expenses attendant upon the birth and burial of the child; that during the whole of the period when their mother resided with her father and his family at Elk Garden, she went each summer to Kitzmiller's home, at his request, with her two boys, the petitioners herein, and resided there during the summer months, during which periods the relationship of husband and wife was maintained between them; that in the year 1907, Hattie Fout and Kitzmiller mutually agreed to separate and to discontinue their marital rela-tions, which agreement was largely due to the fact that Kitzmiller was about to take into his home an invalid, widowed sister; that, Hattie Fout never took the name of Kitzmiller, nor gave that name to her two sons, the petitioners, because, as they are informed and believe, she was advised by her father that she ought not to assume and take the name of Kitzmiller until she and her husband were regularly married by a preacher and that she, being young and ignorant of the law, thought her father knew best and complied with his wishes by continuing to retain her maiden name of Fout and by not calling their children by their father's name.

The petitioners further aver that after the date of the alleged common-law marriage of Gabriel S. Kitzmiller and Hattie Fout, the fact of said marriage was a matter of general' notoriety in the community in which they lived, and that the said parties held themselves out to the public as husband and wife and were generally recognized by their relatives, friends and the general public as being married to each other; that the petitioners as boys rendered service each year to their father, the said Kitzmiller, upon his farm until the separation of their father and mother, and that after the separation, at the request of Kitzmiller, they frequently assisted him in farm work for which they were not paid wages, but that he occasionally gave them some money with which to provide themselves with clothing; that Kitzmiller "recognized them as his children, taught them to call him 'daddy, ' and publicly recognized them as his sons whenever there was occasion to do so, and that petitioners always addressed him as 'daddy' as long as he lived"; that he recognized the fact that as his children they should have his property and authorized them, about the year 1921, to make sale of valuable portions thereof, in his lifetime, at such prices and upon such terms as they might determine, but that they were unable to consummate any such sale.

The legal theory of the petitioners is that although a common-law marriage contracted in the state of West Virginia is not valid therein with respect to the principals to such relationship, the issue resulting therefrom is legitimate and may inherit from either parent. Reliance is had (1) upon the statute: "The issue of marriages deemed null in law, or dissolved by a court, shall nevertheless be legitimate." Code 1981, 42-1-7; and (2) upon the construction and application given that statute by this court in the case of Kester v. Kester, 106 W. Va. 615, 146 S. E. '625, wherein syllabus one reads: "A common-law marriage contracted in this state is not a valid marriage, and is deemed null in law; nevertheless, the children of such marriage are legitimate, under, section 7, chapter 78, Code, which provides that 'The issue of marriages deemed null in law, or dissolved by a court, shall nevertheless be legitimate.'"

The defendants question the soundness of the principle of legitimization laid down in said syllabus and request our reconsideration thereof. It is urged that an attempted common-law marriage in...