Irving v. Ford

• Decision Date: 23 May 1903
• Citation: 183 Mass. 448,67 N.E. 366
• Parties: IRVING v. FORD.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

183 Mass. 448

67 N.E. 366

IRVING v. FORD.

Supreme Judicial Court of Massachusetts, Suffolk.

May 23, 1903

COUNSEL

Butler

R. Wilson and Wm. H. Lewis, for petitioner.

David F. Kimball for respondent.

OPINION

LATHROP J.

The question which arises in this case is that left undecided when the parties were before us on a petition to the probate court to amend the record of a petition for administration of the estate of Robert Irving, otherwise known as Sheridan W Ford, by substituting the name of the petitioner and his mother as the next of kin, and to remove the administrator appointed on an earlier petition. See Irving v Ford, 179 Mass. 216, 60 N.E. 491. The case is now before us on an appeal from a decree of the probate court of a petition asking that the petitioner be allowed one-third of the estate of Sheridan W. Ford, claiming to be entitled thereto as a son.

For the purposes of this case, it must be considered as settled by the previous decision that the so-called marriage between the petitioner's father and mother in Virginia while both were slaves was void, and that the marriage between the common father of the petitioner and of the respondent in Massachusetts was valid, and that the respondent, and not the petitioner, is the legitimate son of Sheridan W. Ford, unless the statute of Virginia passed on February 27 1866, makes him a legitimate child in this state. This statute declared that all colored persons cohabiting together on February 27, 1866, should be deemed husband and wife, and all their children legitimate, whether born before or after the passage of the act. The father and mother of the petitioner were not then cohabiting together, and the petitioner's claim is based upon the last clause of the act, which reads as follows: 'And when the parties have ceased to cohabit before the passage of this act, in consequence of the death of the woman, or from any other cause, all the children of the woman, recognized by the man to be his, shall be deemed legitimate.' Acts 1865-66, p 85, c. 18, § 2. At the time of the passage of this act the petitioner's domicile was in Virginia, and the domicile of Sheridan W. Ford was in Massachusetts. We are unable to see any ground upon which the state of Virginia can impose upon a person having his domicile in Massachusetts a legitimate son, when by our law he is illegitimate. By our law it is provided, 'An illegitimate child whose parents have intermarried, and whose father has acknowledged him as his child, shall be considered legitimate.' Pub. St. 1882, c. 125, § 5 (Rev. Laws, c. 133, § 5). The Virginia act makes mere acknowledgment sufficient, while our law requires both marriage and acknowledgment. The law which governs this case is well stated by Mr. Minor in his treatise on the Conflict of Laws,§ 100. After stating the question, which domicile should govern when the act of legitimation is not marriage, but mere acknowledgment, or a statute of a state, and the bastard has his domicile in one state, and his father in another, he proceeds: 'Two points should be noticed in this connection, which will aid us to determine the proper law in this case. The first is that the legitimation of a bastard is the creation of a status which is beneficial to him, and it should be presumed in his favor whenever adequate reason exists for such a course. The second is that this beneficial status cannot be accorded the infant at the expense of a change of status on the part of the father not warranted by his domiciliary law. Applying these two principles, it follows that the law of the father's domicile at the time of the legitimating act will be the proper law to determine the status of both parties. If by that law the act in question legitimates the bastard, the beneficial status thus created will in general be recognized everywhere,...