Leonard et al v. Braswell et al.

• Decision Date: 20 June 1896
• Citation: 99 Ky. 528
• Parties: Leonard et al v. Braswell et al.
• Court: Kentucky Court of Appeals

Page 528

99 Ky. 528

Leonard et al v. Braswell et al.

Court of Appeals of Kentucky.

June 20, 1896.

APPEAL FROM LYON CIRCUIT COURT.

L. D. HUSBANDS FOR APPELLANTS.

F. A. WILSON AND J. G. HUSBANDS ON SAME SIDE.

WM. H. HOLT ON SAME SIDE.

JAMES & JAMES FOR APPELLEES.

T. J. WATKINS FOR APPELLEE T. A. BRASWELL.

CHARLES K. WHEELER FOR APPELLEES.

CHIEF JUSTICE PRYOR DELIVERED THE OPINION OF THE COURT.

N. T. Braswell lived in the county of Lyon for many years. He died intestate, leaving no children surviving him, but several grandchildren, as well as a large estate. He had but two children, and both of them died before he did. One of his children, Ida, married Leonard, and her children, five in number, are the appellants in this case.

His son, Charles Braswell, at his death left children, and this controversy is between the children of Mrs. Leonard and the children of her brother Charles over the estate left by their grandfather, N. T. Braswell.

The appellants, who are the children of Mrs. Leonard, claim that the children of Charles Braswell (the brother of their mother) are the offspring of a void marriage and, therefore, not entitled to inherit from him or take by descent any part of their grandfather's estate.

The court below adjudged that the children of Ida and Charles Braswell stood in the shoes of their respective parents, and were entitled to inherit what their parents would have taken if living.

The origin of this litigation is based on the following state of facts: Charles Braswell (the father of the appellees) prior to the year 1863 incurred the displeasure of his father, or, for some other reason, left his home, which was in Lyon county, Ky., and took up his residence in Memphis, Tenn., under the assumed name of Charles Dobbins. About the year 1863, and when in Memphis, he married one Susan Beloate, and at the time of the marriage was going under the assumed name of Dobbins. In a short time he deserted his wife, and, after wandering from place to place. in the year 1866, he returned to Lyon county, to his father's home, and there succeeded in winning the affections of a young lady by the name of Josephine Dooms, and, under a promise of marriage, the two left their homes in Lyon county, and going to Cairo, Ill., were married at that place in accordance with the law of the latter State. They immediately returned to their homes in Lyon county, and there lived for many years, having had the two children who are the appellees in this case, and who, after their father's death, lived with their grandfather (the intestate) for some time, the latter dying, as the testimony conduces to show, without ever having known of his son's escapade in Memphis or that he ever had but the one wife, the mother of the children who are the appellees in the present case.

It was argued upon the hearing in this court that Charles Braswell (alias Dobbins) never married Susan Beloate, but the testimony in the case upon this point is convincing, and we have no doubt but that a marriage with the Memphis woman took place in the year 1863, and while his sending his second wife back to Memphis shortly after their marriage, and his having been arrested at the instance of her uncle for bigamy and discharged, are facts tending to show that no lawful marriage had taken place, yet there were those who knew Charles Braswell well and attended the wedding, and, connected with other facts and circumstances not necessary to detail, concludes this question.

It seems to have been studiously concealed — this Memphis marriage — as the most intimate friends in Lyon county and the grandfather of these children were all kept in utter ignorance of the events that transpired at Memphis in 1863, or that the father of these appellees ever had but the one wife. They lived in Lyon county, raised these children, and for twenty-five years, and until this suit was instituted, the Memphis marriage was kept concealed, and we are satisfied the mother of the present appellees was not imbued with the belief that her husband had ever married the Memphis woman.

It is claimed by the appellants that the appellees are the offspring of a bigamous marriage, and have no right to inherit one-half or any part of their grandfather's estate, their father having died long before their grandfather.

The law of the State of Illinois, where the last marriage took place, is pleaded, to the effect that the issue of such a marriage were and are illegitimate and without inheritable blood, and the contention is that the lex loci contractus governs, not only as to the validity of the marriage but determines once for all, the legitimacy or illegitimacy of the children.

It is conclusively shown that no statute was ever enacted in Illinois providing that the issue of marriages null or void in law shall nevertheless be legitimate, and it will be assumed that the issue of such marriages celebrated in that State are bastards as at the common law, and, the better to understand the argument of able counsel, it is further insisted the law of the State where the marriage takes place must make the offspring legitimate, and if the marriage was null and void by the law of Illinois the children must be held to be illegitimate wherever they go.

We shall not attempt to combat the proposition made by learned counsel that the lex loci contractus governs and determines the validity of the marriage, and, if valid when consummated, it must be held valid everywhere; and, if invalid, a like result follows. This doctrine can not be controverted, and the rule must be conceded to be that the law of the place of the marriage will generally govern as to the legitimacy or illegitimacy of the offspring.

There is then no difference between the court and counsel as to this well-settled doctrine, but the appellees maintain they are made legitimate by the Kentucky statute, which reads: "The issue of an illegal or void marriage shall nevertheless be legitimate, except the issue of an incestuous marriage, the marriage between a white person and a negro or mulatto, shall not be legitimate."

That every State has the power and the right to pass its own laws of descent counsel admit, but insists that this applies only where the marriages take place within the borders of the State passing such laws; and, if within its borders can determine the status of the children or their...