Luther v. Luther

• Decision Date: 22 February 1938
• Docket Number: 8644.
• Citation: 195 S.E. 594,119 W.Va. 619
• Parties: LUTHER v. LUTHER et al.
• Court: West Virginia Supreme Court

195 S.E. 594

119 W.Va. 619

LUTHER v. LUTHER et al.

No. 8644.

Supreme Court of Appeals of West Virginia.

February 22, 1938

Submitted February 8, 1938.

Syllabus by the Court.

The mere agreement of a man and woman to live together as husband and wife, and copula pursuant thereto, are not all the essentials of a common-law marriage. When the marital ceremonies prescribed by law and custom are disregarded, the weight of modern authority exacts that, for a marital status to be instituted by consensus, it must be attended with certain stabilizing elements, namely, lawful capacity to contract a marriage, and matrimonial intent, bona fides, on the side of at least one of the parties.

Appeal from Circuit Court, Wayne County.

Suit by Charlotte Ann Luther, infant, against A. C. Luther administrator, and others to obtain for the plaintiff a child's share in her father's estate. From an adverse decree, plaintiff appeals.

Affirmed.

Marion R. Hersman, of Huntington, for appellant.

Jess Hammock, E. A. Marshall, Fitzpatrick, Brown & Davis, and J Frank Eaton, all of Huntington, for appellees.

HATCHER Judge.

The infant plaintiff was born out of lawful wedlock. The subject of this review is her legitimacy under Code, 42-1-7, which provides: "The issue of marriages deemed null in law * * * shall nevertheless be legitimate." Plaintiff is the child of Cedron Bowen, a resident of this state, who testified as follows: In the spring of 1930, she an adult domestic, consented to marry R. L. Luther. He then gave her a wedding ring, saying that, since they loved each other, they would need no preacher, but would simply rent rooms and live together as husband and wife. She demurred at first, but said that he, insisting, convinced her that she would be his wife under his plan and she consented to it. She admitted inconsistently, however, that she knew she would not be "really married" without a license and a preacher. He procured the rooms, and thereafter, though she continued in service, they spent the nights together. There had been no prior sexual intimacy between them. She says that he introduced her to his friends as his wife, but she could not recall the name of any such friends. In a few months, she became pregnant, and then asked him to marry her ceremonially. He replied that he could not do so because he was already lawfully married to another woman. This was the first the witness knew of his marriage. He assured her that they would continue to live as they had, and later he would secure a divorce and marry her. The relationship between her and Luther continued unchanged until his death in 1935. In the meantime, the plaintiff was born, and was cherished and acknowledged openly by Luther as his child.

This suit was brought to obtain for plaintiff a child's share in her father's estate. The circuit court dismissed the bill.

Plaintiff's counsel advance this syllogism: The issue of a common-law marriage is legitimated by Code, 42-1-7; the relationship between Cedron and Luther constituted such a marriage; therefore, plaintiff is legitimate. The minor premise, however, is not supported by the facts.

Code 42-1-7, is one of our statutory inheritances from Virginia. It was prepared by a committee consisting of those outstanding lawyers and statesmen, Edmund Pendleton, George Wythe, and Thomas Jefferson. It was new law, marking a radical departure from the common and statute law of England on the subject. It was first enacted in 1785. It has been adopted, usually verbatim, in many of the states, and with it, "the most liberal construction" recommended by an early Virginia court in Stones v....