Heckert v. Hile's Adm'r 1

• Decision Date: 11 January 1894
• Citation: 90 Va. 390,18 S.E. 841
• Parties: HECKERT et al. v. HILE'S ADM'R et al.1
• Court: Virginia Supreme Court

18 S.E. 841

90 Va. 390

HECKERT et al.

v.HILE'S ADM'R et al.¹

Supreme Court of Appeals of Virginia.

Jan. 11, 1894.

Invalid Marriage—Legitimacy of Children. Under Code 1887, § 2554, declaring that "the issue of marriages deemed null in law, or dissolved by a court, shall nevertheless be legitimate, " children by the second marriage of a man whose first wife had left him and gone to another state are legitimate, though born before the first marriage was dissolved. Fauntleroy, J., dissenting.

John E. Roller, for appellants.

Sipe & Harris, for appellees.

LACY, J. This is an appeal from a decree of the circuit court of Rockingham county, rendered on the 20th day of October, 1889. The controversy in this case is. between the children of Peter Hile by a lawful wife, who left her husband and went to the state of Michigan, and the children of the said Peter Hile by another woman, married by him during the lifetime of his first wife, who were born before the dissolution of the marriage of the first wife. The circuit court decreed that the first marriage was lawful, and the children legitimate; that the second marriage was null, but that the children of this null marriage were legitimate, —made so by our statute, (section 2554 of the Code of Virginia,) which declares that "the issue of marriages deemed null in law, or dissolved by a court, shall nevertheless be legitimate;" and that the second set of children, being legitimate, inherited from the father as the first set, the issue of the legal marriage. There can be no doubt of the correctness of this decision. The case comes within the plain provision of the statute cited above, which is of ancient date in this commonwealth, (Acts 1795, c. 60; Acts 1794, c. 93, § 19,) and was carefully considered and construed in 1894 in this court, in the case of Stones v. Keeling, 5 Call, 143—a decision under which we have since rested. In that case the law was considered in every aspect under which it should be regarded, and was sustained and made effective.

But it is contended by the counsel for the appellants that a recent case in this court has substantially overruled Stones v. Keel ing, and they cite Greenhow v. James, SO Va. 636; but we do not so regard it. That was the case of the illegitimate children of a white person by a negro, who left the state, and were married abroad. The distinction is sufficiently drawn in the opinion in that case; and in the case of Stones v. Keeling, supra, Judge Roane, who delivered one of the...