Francis v. Francis

• Citation: 72 Va. 283
• Parties: FRANCIS v. FRANCIS.
• Decision Date: 09 January 1879
• Court: Virginia Supreme Court

72 Va. 283

FRANCIS v. FRANCIS.

Supreme Court of Appeals of Virginia.

January 9, 1879

1. The act of February 27th, 1866, to legalize the marriage of colored persons living together as husband and wife at the time the act was passed, includes and applies to colored persons so living together though they were born free.

2. It is not necessary that there shall be evidence of an actual agreement to take each other as husband and wife, but the relation may be established by proof--by the acts, conduct and conversation of the parties.

3. A certain sum monthly having been allowed as alimony to the wife, the husband appeals from the decree, and pending the appeal dies. The appellate court affirming the decree, the wife is entitled to the allowance up to the time of his death.

This was a suit in equity in the corporation court of the city of Norfolk, brought in July, 1872, by Emma Jane Francis against Robert Francis. The parties were colored persons, born free. The plaintiff in her bill alleged that in 1852 the defendant persuaded her to live with him as his wife; that she agreed to do so and moved into his house and put herself under his protection; that with his consent and by his instruction she adopted the name he bore, and by that name he recognized and introduced her to his friends as his wife. She lived with him constantly from 1852 until the 25th of November, 1868, during which time she bore him ten children, eight of whom are dead leaving two, a boy of eleven years old, and a girl eight years of age, now living with and supported by plaintiff.

She further says that at the time when she went to live with the defendant, and during the whole time she did live with him up to the 25th of November, 1868, when the defendant left her, they had agreed and undertaken to occupy the relation of husband and wife, and were cohabiting together as such at the time of the passage of an act entitled an act to amend and re-enact the 14th section of chapter 108 of the Code of Virginia for 1860, in regard to the register of marriages and to legalize marriages of colored persons now cohabiting as man and wife," passed February, 1866.

She further states that on the 25th of November, 1868, the defendant, without any cause known to her, deserted and left her without means of support; and she is entirely dependent upon her own labor for her support and that of the children of herself and the defendant; that said defendant owns a considerable real estate, and is doing a business in the city from which he derives a large income; and she prays that the said Robert Francis may be required to make suitable provision for the support of herself and the said children during the pendency of this suit, and that the court may decree her a separate maintenance for herself and the children, and for general relief.

The defendant, Francis, demurred to the bill for want of equity but the court overruled the demurrer. He then answered, denying all the allegations of the bill as to their ever agreeing to live together as man and wife, and denied that he had ever consented to said relation between them.

A number of depositions were taken in the cause, which are sufficiently referred to in the opinion of Judge Staples. The evidence established to the satisfaction of the court below, and this court, the allegations of the bill, that the parties had lived together as husband and wife, and that this relation had been recognized by the defendant up to the year 1868.

The cause came on to be heard on the 11th of November, 1874, when the court being of opinion that the plaintiff, Emma Jane Francis, and the defendant, Robert Francis, had undertaken and agreed to occupy the relation to each other of husband and wife, and were cohabiting together as such at the time of the passage of the act to legalize the marriage of colored persons cohabiting together as husband and wife, passed February, 1866, and are man and wife, decreed that a commissioner should ascertain and report the estate, both real and personal, and the fee simple and annual value thereof, owned and possessed by the said Robert Francis, including the income arising from his business, and also what would be a reasonable allowance per month as alimony for the said Emma Jane Francis.

The commissioner returned his report stating the real estate of the defendant, and the income from his business, and recommended twenty-five dollars a month as a proper allowance to the plaintiff to be paid by the defendant.

The cause came on to be further heard on the 14th of January, 1875, and there being no exception to the report of the commissioner it was confirmed, and the court decreed that the defendant should pay annually to the plaintiff $300, in monthly instalments of $25 each on the first day of each month. And thereupon Robert Francis obtained an appeal to this court. After the appeal the appellant died.

Baker and Walke, for the appellant.

Baker and Borland, for the appellee.

STAPLES J.

This case brings before this court for the first time the question of the proper construction of an act passed February 27th, 1866, " to legalize the marriage of colored persons." It is therein provided that " where colored persons before the passage of this act shall have undertaken and agreed to occupy the relation to each other of husband and wife, and shall be cohabiting together as such at the time of its passage, whether the rites of marriage shall have been solemnized between them or not, they shall be deemed husband and wife, and be entitled to the rights and privileges, and subject to the duties and obligations of that relation in like manner as if they had been duly married by law, and all the children shall be deemed legitimate whether born before or after the passage of this act." Code of 1873, ch. 103, § 4, p. 941.

It is insisted that the parties to this suit, although they were colored persons, and living together as man and wife at the time of the passage of the act, are not within the influence of its provisions, inasmuch as they were free before the war and might have been lawfully married under the laws then in force; that the sole object of this...