Jones v. Jones

• Decision Date: 21 June 1876
• Citation: 45 Md. 144
• Parties: DAVID JONES, FRANCES JONES and others v. HENRY JONES.
• Court: Maryland Court of Appeals

45 Md. 144

DAVID JONES, FRANCES JONES and others v. HENRY JONES.

Court of Appeals of Maryland

June 21, 1876

APPEAL from the Superior Court of Baltimore City.

This case arises upon the following issues sent from the Orphans' Court of Baltimore City, to the Superior Court for trial:

First.--Is Henry Jones, one of the respondents to the petition in this cause, a lawful child of Andrew D Jones, the intestate, whose estate is for distribution in the cause?

Second.--Did the said intestate leave a widow? If yea, who?

By the order sending these issues for trial, Henry Jones was to be the plaintiff in said trial, and David Jones and others the defendants. All the parties are colored persons. Henry Jones the plaintiff, claims to be the legitimate child of Andrew D. Jones, deceased, and that his father was married to his mother, Henny Jones, a slave woman, after the year 1819, and offered evidence at the trial tending to prove this fact. The defendants claim, and offer evidence tending to show, that Andrew D. Jones, at the time of the alleged marriage, was the lawful husband of Anne Jones, who died about the year 1844, after which he married Frances Moore, who now claims to be his widow.

The First, Second, and Third Exceptions are sufficiently stated in the opinion of the Court.

Fourth Exception.--The defendants after other evidence produced a paper, purporting to contain the deposition given by one Tabitha Toy, before W. S. Pinkney, a commissioner of the Circuit Court of Baltimore City, in a cause depending in said Court, of Jones vs. Jones. And further offered to prove that said paper had been filed among the proceedings in said cause, and that it was now produced from the bundle of original papers in said cause, all of which original papers defendants offered to give in evidence, and offered to prove that they were the original papers, and all of the original papers in said cause, and that said plaintiff was a party to said cause. And also offered to prove by the commissioner who took said deposition, that it was taken before him as commissioner of the Circuit Court of Baltimore City, in said equity case of Jones vs. Jones, and returned by him to said Court. And also offered to prove that said Tabitha Toy was now dead. And thereupon offered said paper, purporting to contain the deposition of said Tabitha Toy in evidence, in connection with the offer to prove the facts above stated. The plaintiff objected to the reading of said deposition in evidence under the offer made by the defendants, and the Court (DOBBIN, J.,) sustained the objection. The defendants excepted.

Fifth Exception.--After all the evidence was closed the defendants offered the following prayers:

1. If the jury find from the evidence that Henry Atkins, alias Jones, was the child of Henrietta Atkins, and that said Henrietta was, at the time of the birth of said Henry, a single woman, and that after the birth of said Henry, no marriage in fact was had between said Andrew and Henrietta, then the verdict on the first issue should be for the defendants, and that there is no evidence of any such subsequent marriage.

2. If the jury find that Andrew D. Jones married Anne Smith in February, 1819, and thereafter lived and cohabited with her as his wife until the death of said Anne, if they shall find such death, and that after the death of said Anne, the said Andrew married the said Frances, and lived and cohabited with her as his wife until his death; then the marriage of said Andrew and Henrietta, as alleged, cannot after the marriage of said Andrew and Anne, be established by cohabitation between said Andrew and Henrietta, or by repute that they were married, unless the jury find such cohabitation or repute between the death of said Anne and the marriage of said Andrew and said Frances; and if the jury do not find such cohabitation and repute of said Andrew and Henrietta in the said interval, then the plaintiff ought to prove an actual marriage between said Andrew and Henrietta before the marriage of said Andrew and Anne, if the jury find the latter marriage.

3. That the burden of proof is upon the plaintiff, Henry Jones, to establish his legitimacy by showing a valid marriage between Andrew D. Jones and Henrietta Atkins, either by a marriage actually celebrated, or in the absence of proof of such a marriage, by the cohabitation of said Andrew and Henrietta as man and wife, or by repute that they were married, and that there is no evidence in this cause of any such marriage actually celebrated, nor of the cohabitation of said Andrew and Henrietta as man and wife, nor of any repute that they were married, or were husband and wife.

4. That if the jury shall find any intercourse whatever between the said Andrew and said Henny Atkins, and that the same was illicit in its commencement, then the presumption of law is, that it so continued, and the burden of proof is upon the plaintiff to establish some subsequent valid marriage, of which there is no evidence.

5. That if the jury find that Andrew D. Jones married Anne Smith on the 14th February, 1819, and that they thereafter lived together as man and wife, until the death of said Anne, if they shall find such death, and that thereafter the said Andrew married Frances Jones, and lived with her as his wife until the death of said Andrew, and shall find that the said Henry Jones, the plaintiff, was not born earlier then the year 1820, and that the said Henrietta Atkins, his alleged mother, never cohabited with said Andrew, nor bore his name commonly, nor was by repute known as the wife of said Andrew, then the plaintiff cannot recover, and the finding of the jury upon the first issue should be for the defendant.

6. That there is evidence in the cause from which the jury may find that Frances Jones was lawfully married to Andrew D. Jones, and that if they so find, their finding on the second issue should be, that Andrew D. Jones did leave a widow, and that that widow is Frances Jones, one of the defendants.

7. That if the jury find that at the time of the alleged marriage between said Andrew and Henrietta, the said Henrietta was a slave, and thereafter continued a slave until the year 1863, or 1864, then the said alleged marriage was not valid, unless the owner of said Henrietta consented thereto; and if the jury shall find that Capt. Frazier, mentioned in the evidence, was during the time aforesaid, the owner of said Henrietta, and never consented to the said marriage, then the jury should find that no valid marriage took place between said Henrietta and Andrew as alleged on the part of the plaintiff, and that there is no evidence in the cause from which the jury can find or presume that said Capt. Frazier, in his life-time, or during the time aforesaid, consented to said alleged marriage, or treated said Henrietta as having been married, and that there is no evidence of any marriage between said Andrew and said Henrietta after the latter became a free woman.

8. That if the jury believe that the slip cut and produced in evidence was taken from a Bible, a part of a Bible found in the intestate's house and in the custody of his administratrix, then the same is evidence of itself without the necessity of proof of hand-writing.

The plaintiff's counsel agreed in open Court that the Court should instruct the jury as prayed in the defendants' fifth prayer, and the Court accordingly granted the same, and also granted the defendants' sixth prayer, but rejected their first, second, third, fourth, seventh and eighth prayers. The defendants excepted.

The jury found by their verdict "that Henry Jones, the plaintiff, is a lawful child of the said Andrew D. Jones, the intestate; and that Frances Jones, formerly Frances Moore, is the surviving widow of the late Andrew D. Jones." The defendants appealed.

The cause was argued before BARTOL, C.J., STEWART, BOWIE and ALVEY, J.

Julian I. Alexander and George H. Williams, for the appellants.

H. C. Wysham and Bernard Carter, for the appellee.

ALVEY J., delivered the opinion of the Court.

The issues for trial in the Court below were, 1st, Is Henry Jones a lawful child of Andrew D. Jones, deceased? and, 2ndly, Did the said Andrew D. Jones leave a widow, and if yea, who? These issues were sent from the Orphans' Court to be tried, and upon trial the jury found that Henry Jones is a lawful child of Andrew D. Jones, deceased, and that the latter left a widow, Frances Jones, formerly Frances Moore.

In the course of the trial several exceptions were taken by the appellants; four to rulings on questions as to the admissibility of evidence, and the fifth to the refusal of certain prayers offered by the appellants.

The question raised by the first exception is as to the admissibility of secondary evidence of the superscription or direction of a letter written by the appellee, at Liverpool, to his mother, in Baltimore, in or about the year 1850; the question being to whom and how the letter was directed, the letter itself not being produced. The previous evidence had disclosed the condition of the mother, and the fact that she died about the year 1866. Her whole life, with the exception of the last two years of it, had been spent as a slave, and she died at the house of her former master. The letter is not shown to have been of any such importance as to require its preservation; and as the party to whom it was written has been dead several years, and there being no personal representative of whom inquiry could be made, it may well be presumed that the letter has been lost or destroyed; and therefore the evidence offered of the address written on the letter was properly received. 1 Taylor Ev., sec. 399.

By the second and third exceptions, the question was presented as to...