Goodman v. Goodman

• Decision Date: 22 March 1928
• Citation: 142 S.E. 412
• Parties: GOODMAN. v. GOODMAN.
• Court: Virginia Supreme Court

142 S.E. 412

GOODMAN.

v.GOODMAN.

Supreme Court of Appeals of Virginia.

March 22, 1928.

Appeal from Circuit Court, Nansemond County.

Suit between Willie Goodman, etc., and James Goodman, etc. From a decree for the latter, the former appeals. Affirmed.

L. A. Howell, of Norfolk, John H. Fulcher, of Suffolk, and C. G. Archer, and Jas. G. Martin, both of Norfolk, for appellant.

Saunders & Hutton, of Suffolk, for appellee.

WEST, J. The evidence in this case proves the following facts:

Joseph Belcher and Matilda S. Spruell were lawfully married in 1907, and lived together as man and wife for seven or eight years. They then separated, and later Matilda Belcher and Charles Goodman became infatuated with each other, and lived together as man and wife several years, during which time, on May 8, 1918, she gave birth to a son, James Goodman, whose father was Charles Goodman. On September 25, 1918, believing they had the right to marry, Charles Goodman and Matilda S. Belcher were married according to the forms and ceremonies of the law. Both before and after marriage to Matilda, Charles Goodman recognized James Goodman as his son. Matilda was never divorced from Joseph Belcher, and he is still living.

At the time of his death, intestate, in October, 1919, Charles Goodman was carrying war risk insurance in the sum of $10,000, the commuted value of which was $7,819, which is now in the hands of S. E. Everett, his administrator.

The object of this suit is to have the court determine whether this money belongs to James Goodman, infant son of Charles Goodman, or to the brothers and sisters of Charles Goodman. From a decree adjudging that James Goodman is the son and sole distributee of Charles Goodman, and is entitled to the $7,819, this appeal was allowed.

The assignments of error involve only one question: Is James Goodman the legitimated son of Charles Goodman, deceased?

The answer to this question depends upon a proper construction of the Virginia statute. Sections 5269, 5270 and 5087 of the Code read as follows:

"Sec. 5269. When Marriage Legitimates Children.—If a man, having had a child or children by a woman, shall afterwards intermarry with her, such child or children, or their descendants, if recognized by him before or after marriage shall be deemed legitimate."

"Sec. 5270. Issue Legitimate, Though Marriage Null.—The issue of marriages deemed null in law, or dissolved by a court, shall nevertheless be legitimate."

"Sec. 5087. What Marriages Are Void Without Decree.—All marriages between a white person and a colored person, and all marriages which are prohibited by law on account of either of the parties having a former wife or husband then living, shall be absolutely void, without any decree of divorce, or other legal process."

These statutes are remedial in their nature, and should be liberally construed. When so construed, it is apparent that the object and purpose of their enactment was to remove the stain and disabilities of bastardy from all "innocent and unoffending" children who, for any cause, might be classed as illegitimate.

Section 5269 should be read in the light of the other two sections.

Every marriage is either valid or invalid, and section 5269 does not declare that the marriage between the man and the woman shall be a valid marriage in order to legitimate a child born before the marriage. Since section 5270 legitimates children born after the celebration of a void marriage, it seems clear that the word "intermarry, " which appears in section 5269, is used in its broadest sense, and was intended to include every marriage, valid or void, entered into in accordance with the forms and ceremonies of the law, even though one of the parties was incapacitated to enter into the marriage contract. If the marriage of the parents is entered into in accordance with the forms and ceremonies of the law, and the child is recognized by his father, either before or after the marriage, the conditions of the statute have been complied with, and the child must be deemed legitimate.

The case of Stegall v. Stegall, Fed. Oas. No. 13351, 2 Brock, 258, was decided by Chief Justice Marshall in the Circuit Court of the United States for the District of Virginia and North Carolina, in 1825. The case arose in Virginia, and the Virginia statute in force at the time, substantially the same as the present statute, provided as follows:

"Where a man having by a woman, such child or children, if recognized by him, shall be thereby legitimated. The issue also in marriages deemed null in law shall nevertheless be legitimate." Va. Code 1819, p. 357, § 19.

This case involved a contest over the decedent's property between his children by two wives. The decedent, John Potter Stegall, had several children by his lawful wife, Catherine; and, during the existence of his marriage relations with her, he was married to Susannah Portwood, by whom he was the father of one child, Elizabeth, before, and several children after, his marriage. The decision of Chief Justice Marshall is in harmony with, and supports, the contention of the appellees in the instant case, as appears from the following language used in his decree:

"The court is further of opinion, that the marriage of the said John Potter Stegall deceased, with Susannah Portwood, after his marriage with the plaintiff, Catherine, and while his wife, the said Catherine, was living, was null and void, and that the said Susannah Portwood was not entitled either to dower of his real or to a distributive share of his personal estate; but that, nevertheless, by the act of assembly of Virginia, in such case made and provided, the defendant, Nancy Smith, daughter of the said Susannah, by the said John Potter Stegall, born after the said illegal marriage of her said parents, and during the coverture, and the defendant, Elizabeth Jennett, daughter of the said Susannah, born before her said marriage with the said John Potter Stegall, but recognized by him after his marriage with her mother, and during the coverture, as his, the said John Potter's child ought, and are, both to be deemed legitimate children of the said John Potter Stegall."

As early as Stones v. Keeling, 5 Call (9 Va.) 143, this court held that the issue of a woman by a second marriage, which took place during the lifetime of the first husband, are legitimate after the death of their father. Syllabus. In the course of his opinion, Judge Roane, after stating that both marriages were celebrated, and that the first existed at the time of celebrating the last, says:

"This is a strong case to show the sense of the Legislature, that the turpitude, or guilt of the marriage, shall not break upon the heads of their innocent offspring. * * * If the Legislature has legalized children begotten in open fornication, where there is no marriage or semblance of a marriage, it is a reasonable presumption that they at the same moment, and by the same clause meant also to include the offspring of marriages, which, though void in law, and unfortunate, may be nevertheless excusable, and even innocent."

Judge Roane also says:

"We are bound to consider this marriage innocent, for we cannot, in this proceeding, inquire into its guilt. But if it were otherwise, if the Legislature should even be supposed to consider every second marriage, living a first husband or wife, as criminal, wherefore should they visit the sins of the parents upon the innocent and unoffending offspring? But this was not the temper of the Legislature."

Judge Roane further says:

"The construction I contend for, taken in connection with the stronger case, expressly provided for, and just noticed, of children born prior to any marriage; with the general policy of our law, which is much more favorable to bastards, than the law of England; with that policy which, in regulating descents, has considered as most worthy the claims of those who stand nearest in the affections of the last occupant, (and it is clear that the affections of a parent towards his child, do not at all depend upon the legal validity of his marriage), must at once overrule the arguments drawn from the critical exposition of the word null, as alleged to be understood in some legal authors on this subject, and in some of our former acts."

The ease of Stones v. Keeling, supra, is cited with approval in Heckert v. Hiles, 90 Va. 390, 18 S. E. 841, and in Hefflinger v. Hefflinger. 136 Va. 289, 118 S. E. 316, 32 A. L. R. 1088.

In Carroll v. Carroll, 20 Tex. 731, according to the syllabus, the court held that:

"Children born before the marriage of their parents, who afterwards intermarry, whether such subsequent marriage is valid or null, it would seem, are legitimated by the statute."

The law in force in Maryland in 1875, when the case of Hawbecker et al. v. Hawbecker et al., 43 Md. 517, was decided, provided as follows:

"If any man shall have a child or children by any woman, whom he shall afterwards marry, such child or children, if acknowledged by the man, shall, in virtue of such marriage and acknowledgment, be hereby legitimated, and capable in law to inherit and transmit inheritance as if born in wedlock."

Christian Hawbecker had by his wife, Catherine, four children, born in lawful wedlock. During the life of his wife he also had six other children by another woman. His wife died in 1854, and in 1855 he was married to the mother of the six children. The court held that "the children of an intercourse adulterous on the part of the man are no less innocent and unoffending than the offspring of any other illicit connection, " and that all the children should share equally in the father's estate.

Sections 1398 and 2098 of the Kentucky Statutes are practically in the same language as sections 5269 and 5270 of the Virginia Code. In Bates v. Meade, 174 Ky. 545, 192 S. W. 666, the Court of Appeals of Kentucky was called upon to decide the precise question now before the court in the instant case. William D. Meade married...