Koonce v. Wallace

• Decision Date: 31 December 1859
• Citation: 7 Jones 194,52 N.C. 194
• Court: North Carolina Supreme Court
• Parties: FRANCIS D. KOONCE v. LOUISA WALLACE.

7 Jones (NC) 194

52 N.C. 194

FRANCIS D. KOONCE

v.LOUISA WALLACE.

Supreme Court of North Carolina.

December Term, 1859.

Where, at the time of a marriage, the female was under the age of fourteen, and the parties continued to live together as man and wife, after she reached that age, it was Held that there is nothing in the statute, Rev. Code, ch. 69, sec. 14, to abrogate the rule of common law, that such living together as man and wife, after the age of consent, amounted to a confirmation of the marriage.

THIS was a motion to grant letters of administration on the estate of James G. Wallace, deceased, made before the Superior Court of Onslow, at its last Spring Session, SHEPHERD, J., presiding.

The facts of the case are as follows: In February, 1858, James G. Wallace, being then under twenty-one years of age, but over sixteen, was married to Caroline Tilghman, then under fourteen years. She became fourteen in June, 1858, and lived with Wallace as his wife, until September the 23rd, 1858, when he died, being still under twenty-one. The parties lived together as man and wife, and strictly recognised each other as such, from the marriage in February, 1858, until the death of the husband in September of the same year. At December Term of Onslow County Court, Caroline Wallace, widow of James Wallace, applied for letters of administration on his estate, when the defendant in this case, the mother of the intestate, and also his highest creditor, opposed the motion, alleging that no marriage had taken place between her son and the applicant, inasmuch as the applicant was under fourteen years of age when married. The County Court granted the letters of administration to the applicant, and from this judgment there was an appeal to the Superior Court, when the applicant, Caroline, relinquished to Francis D. Koonce, her right to administer, and that Court accordingly granted him letters of administration; and from this judgment, defendant appealed to this Court.

McRae and E. G. Haywood, for plaintiff .

Green and Humphrey, for defendant .

PEARSON, C. J.

It is enacted, Rev. Code, ch. 69, sec. 14, “Females under the age of fourteen and males under the age of sixteen years, shall be incapable of contracting marriage.”

A marriage is duly solemnized in all respects save that the female is a few months under the age of fourteen; the parties lived together as man and wife, until she arrives at that age, and afterwards continue so to live together, until the death of the other party.

The question is upon the construction of this statute, was the marriage void, i. e. a mere nullity, or was it voidable, i. e. imperfect, but capable of being confirmed and made perfect by subsequent consent and cohabitation as man and wife?

At common law, fourteen in males and twelve in females, was the age of consent, and if one or both of the parties, at the date of the celebration of the marriage, were under the requisite age, such marriage was imperfect, by reason of the fact that the parties were incapable of contracting marriage, but it became perfect and was confirmed if the parties, after attaining the requisite age, assented to it by continuing to cohabit together as man and wife. In other words, the marriage was not void, but was only imperfect or voidable for the want of capacity, but could be made perfect or be confirmed by the consent of the parties, implied from subsequent cohabitation as man and wife; on the same principle by which it was held, that the contract of one under the age of twenty-one, in respect of property, except for necessaries, although imperfect and voidable because of a supposed want of capacity, may be confirmed and made perfect by assent, after attaining the age of twenty-one. Indeed, the application of this principle, is especially called for in regard to the contract of marriage, from its peculiar nature and consequences; Coke Lit. 33a; ibid 79a; note 43; 1 Bl. Com. 436. Such was the settled rule of law in regard to incapacity to contract, for the want of age, previous to the statutory enactment above recited; and in the opinion of this Court, the only effect of the statute, was to make sixteen instead of fourteen years in respect to males, and fourteen instead of twelve years in respect to females, the ages at which the parties,...