Greenhow v. James' Ex'r

• Decision Date: 16 April 1885
• Citation: 80 Va. 636
• Court: Virginia Supreme Court
• Parties: GREENHOW & ALS v. JAMES' EX'OR.

80 Va. 636

GREENHOW & ALS v. JAMES' EX'OR.

Supreme Court of Appeals of Virginia.

April 16, 1885

Appeal from decree of circuit court of Fredericksburg, rendered at its June term, 1883, in the chancery cause of Greenhow and als against W. P. Conway, executor of Mary James deceased.

The object of this suit was to recover of said executor a legacy given by the will of the testatrix, " to the children of Dade Hooe," the plaintiffs claiming to be those children. The question was, whether or not they were the legitimate children of Dade Hooe. The decree was against them, and they appealed to this court.

Opinion states the case.

Little & Little, for appellants.

E E. Meredith, for appellees.

OPINION

HINTON J.

Sometime in the year 1830, or 1831, one Mary James, of the county of Stafford, departed this life, having first made her will, which was duly probated and recorded. This will, along with the records of the county, was destroyed during the late war; but that portion of it which bears upon this case has been set up and established to the thorough satisfaction of all parties to this litigation, by the deposition of W. P. Conway, the surviving executor. By this portion of the will, the said testatrix, Mary James, devised and bequeathed all of the residue of her estate, after the payment of her debts and sundry specific legacies, to the said W. P. Conway and R. C. L. Moncure, her executors, in trust, for the use of her brother, Wm. S. James, during his life, then for the use of her sister, Nancy Hooe, during her life, and after her death, for the use of Dade Hooe and George Hooe, sons of the said Nancy, for their joint lives, and if either should die without children, the whole for the use of the survivor for life, and at his death to the children of the survivor in fee.

The brother and sister of the testatrix departed this life many years ago, and soon after their death George Hooe also died unmarried and without issue, leaving Dade Hooe alone surviving, in whom the use of the whole residuum was vested for life, with remainder in fee to his children. Soon after the death of the testatrix, the said Dade Hooe commenced to live and cohabit with one Hannah Greenhow, a woman of color. These parties continued to live together for upwards of forty years and until the death of Dade Hooe, in 1881. The fruit of this illicit intercourse was eleven children, the plaintiffs in this suit. In November, 1875, Dade Hooe and Hannah Greenhow, who were then, and afterwards remained domiciled in this state, went to Washington for the purpose, and there went through the ceremony of marriage in accordance with the forms prescribed by the laws of the District of Columbia.

The plaintiffs, who are also the appellants, were always recognized by Dade Hooe as his children, and there seems to be no doubt but that the ceremony of marriage was celebrated by their parents in the District of Columbia for the purpose of legitimatizing these children. This suit was instituted by these plaintiffs for the purpose of recovering of the executors certain bonds to which they claim to be entitled under the will of the said Mary James, as being the legitimate children of the said Dade Hooe.

Now it is argued for the appellants, that they are legitimate, first, because, although born out of wedlock, they must yet be considered as the issue of a marriage deemed null in law, who by the express words of the statute, Code 1873, chap. 119, § 7, are " nevertheless * legitimate" ; and second, because under section 6 of the same chapter the subsequent intermarriage of the parents and recognition of the father, legitimated them.

It is clear, however, that if the words " issue of a marriage" used in the seventh section are to be taken, as we think they should, in their ordinary acceptation, that the plaintiffs cannot be regarded, either in fact or in contemplation of law, as the issue of the marriage, for the simple reason that their births antedated the marriage. This suggestion, therefore, might well be laid out of view. But assuming for the nonce that the true construction of this sentence is that contended for by the appellants, namely, that " under the case of Coutts v. Greenhow, 2 Munf. 372, prior born children are as much the issue of the marriage as those born afterwards," the question then arises, whether the offspring of an illicit intercourse between a white person and a negro, both domiciled in Virginia, can be legitimated by a marriage subsequently solemnized in a state or district where the laws permit such marriages. And this question must, we think, at this day be both upon principle and authority, answered in the negative.

In Brook v. Brook, 9 H. L. Cas. 223, Lord Cranworth said: " The conclusion at which I have arrived is the same as that which my noble and learned friend on the woolsack has come to, namely, that though in the case of marriages celebrated abroad the lex loci contractus must quoad solennitates determine the validity of the contract, yet no law but our own can decide whether the contract is or is not one which the parties to it, being subjects of her majesty, domiciled in this country, might lawfully make."

" There can be no doubt as to the power of every country," says he, " to make laws regulating the marriage of its own subjects, to declare who may marry, how they may marry, and what shall be the legal consequences of their marrying. And if the marriages of all its subjects were contracted within its own boundaries no such difficulties as that which has arisen in the present case could exist. But that is not the case; the intercourse of the people of all Christian countries among one another is so constant, and the number of subjects of one country, living in or passing through another is so great, that the marriage of the subject of one country within territories of another must be a matter of frequent occurrence. So, again, if the laws of all countries were the same as to who might marry, and what should constitute marriage, there would be no difficulty; but that is not the case, hence it becomes necessary for every country to determine by what rule it will be guided in deciding on the validity of a marriage entered into beyond the area over which the authority of its own laws extends."

" The rule," says he, " in this country, and I believe generally in all countries is, that the marriage, if good in the country where it was contracted, is good everywhere, subject, however, to some qualifications, one of them being that the marriage is not a marriage prohibited by the laws of the country to which the parties contracting marriage belong."

And in this same case, the lord-chancellor (Lord Campbell) after stating the general rule, that a foreign marriage, valid according to the law of a country where it is celebrated, is good everywhere, adds: " But while the forms of entering into the contract of marriage are to be regulated by the lex loci contractus, the law of the country in which it is celebrated, the essentials of the contract depend upon the lex domicilii, the law of the country in which the parties are domiciled at the time of the marriage, and in which the matrimonial residence is contemplated. Although the forms of celebrating the foreign marriage may be different from those required by the law of the country of domicile, the marriage may be good everywhere. But, if the contract of marriage is such, in essentials, as to be contrary to the law of the country of domicile, and it is declared void by that law, it is to be regarded as void in the country of domicile, though not contrary to the law of the country in which it was celebrated." And again he says, at page 219: " If a marriage absolutely prohibited in any country as being contrary to puplic policy, and leading to social evils, I think that the domiciled inhabitants of that country cannot be permitted, by passing the frontier and entering another state in which the marriage is not prohibited, to celebrate a marriage forbidden by their own state, and immediately returning to their own state, to insist upon their marriage being recognized as lawful."

In Sottomayer v. DeBurros, L. R. 3 Prob. Div. 5 Cotton, L., J., said: " But it is a well-recognized principle of law that the question of personal capacity to enter into a contract is to be decided by the law of the domicile. It is, however, urged that this does not apply to the contract of marriage, and that a marriage valid according to the law of the country where it is solemnized is valid everywhere. This, in our opinion, is not a correct statement of the law. The law of a country where a marriage is solemnized must alone decide all questions relating to the validity of the ceremony by which the marriage is alleged to have been constituted; but as in other contracts, so in that of marriage, personal capacity must depend on the law of the domicile." See also to the same effect Dicey on Domicile, p. 202; Williams v. Oates, 5 Ired. 535; Dupre v. Ex'or of Boulard, 10 La.Ann. 411, and State v. Bell, 7 Baxter 9; Kinney v. Com., 30 Gratt. 858; State v. Kennedy, 76 N.C. 251. I have quoted thus largely from the authorities to show that the capacity to enter into the marriage contract, being one of the essentials of the contract, must be governed by the law of the domicile, and that whether the rule which requires that a marriage valid where celebrated is valid everywhere else arises out of all the comity between nations or ex debito justitiæ , yet that it can have no application to a marriage contract entered into in a foreign country in contravention of the public policy and statutes of the country of their domicile which pronounces a marriage between them not only " " absolutely void," but criminal. In the very nature...