Harris v. Harris

• Decision Date: 18 January 1887
• Citation: 85 Ky. 49,2 S.W. 549
• Parties: HARRIS and others v. HARRIS and others.
• Court: Kentucky Court of Appeals

2 S.W. 549

85 Ky. 49

HARRIS and others v. HARRIS and others.

Court of Appeals of Kentucky.

January 18, 1887

Appeal from circuit court, Bullitt county.

F. P Straus and Richards & Hines, for appellants, Felix Harris and others. A. Duvall and Chas. Carroll, for appellees, Mary A Harris and others.

PRYOR C.J.

The appellants and the appellees are each claiming to be the lawful heirs of John L. Harris, deceased. Appellants are his brothers and sisters, and the appellees are his children under a marriage prohibited by law, and void by an express provision of the statute. The court below adjudged in favor of the children, and the brothers and sisters appeal. Their right depends upon the construction given the provisions of the statute on this subject.

By the second section of article 1, c. 52, Gen. St similar to the Revised Statutes, marriage is prohibited and declared void (1) with an idiot or lunatic; (2) between a white person and a negro; (3) when there is a husband or wife living from whom the person marrying has not been divorced (4) when not solemnized or contracted in the presence of an authorized person or society; (5) when, at the time of marriage, the male is under 14, or the female is under 12 years of age. Section 3 of the same statute provides that "the issue of an illegal or void marriage shall be legitimate," except the issue of an incestuous marriage. The issue of a marriage between a white person and a negro or mulatto shall not be legitimate; and, where one of the parties is an idiot or a lunatic, the issue shall be legitimate as to both. The third section contains all the exceptions to be found in the statute on the subject, and therefore, by reason of section 2, the offspring of all marriages declared void by that section are legitimate, unless within the exceptions mentioned in section 3. It is, however, under section 4 that the appellants, the brothers and sisters, assert their claim to the estate of the decedent. That section reads: "Sec. 4. Where the marriage is contracted in good faith, and with the belief of the parties that a former husband or wife then living was dead, the issue of such marriage, born or begotten before notice of the mistake, shall be the legitimate issue of both parents."

The mother of these children, (the appellees,) whose maiden name was Deacon, married one Smith Ash in August, 1860. The marriage took place in Cincinnati, Ohio, and was properly solemnized, and in every respect a legal marriage. She was then 15 years of age, and separated from her husband in a short time after the marriage, instituting an action for a divorce against him, that was dismissed. After the dismissal of the suit for a divorce, and while she was the lawful wife of Ash, she entered into a contract of marriage with John T. Harris, the father of these children, that was also consummated at Cincinnati with all the forms and solemnities of the law, and would have been valid but for the reason that Ash, the first husband, was then living, and no divorce had been obtained by either party. After the marriage with Harris, they returned to the neighborhood where Ash lived, and, not long after, Ash, by a proper proceeding, obtained a divorce. These children, eight in number, were born after the divorce was granted. Harris and his wife, if she can be properly called his wife, lived together as man and wife for 18 or 20 years, and Harris died recognizing that relation, and they were in fact regarded always as man and wife by their friends and neighbors.

Since the adoption of the Revised Statutes, mere cohabitation, and a recognition of the marital relation between parties, does not evidence a valid marriage, or make the parties husband and wife. The old common law has been abolished, and the marriage in this state must be in accordance with the mode prescribed by the statute; and, if not, the marriage is void. So it is...