Osoinach v. Watkins

• Citation: 235 Ala. 564,180 So. 577
• Decision Date: 14 April 1938
• Docket Number: 2 Div. 109.
• Parties: OSOINACH ET AL. v. WATKINS ET AL.
• Court: Supreme Court of Alabama

180 So. 577

235 Ala. 564

OSOINACH ET AL. v. WATKINS ET AL.

2 Div. 109.

Supreme Court of Alabama

April 14, 1938

Appeal from Circuit Court, Wilcox County; John Miller, Judge.

Bill in equity by Ida P. Watkins and others against Viola Watkins individually and as administratrix of the estate of C. C Watkins, deceased, and another, to have the marriage of decedent declared void and his estate adjudicated. From a decree overruling a demurrer to the bill, respondents appeal revived, on death of Viola Watkins, in name of Eulynne Osoinach, as administratrix de bonis non of the estate of C C. Watkins, deceased, and Zolan C. Chapman, as executor of the estate of Viola Watkins, deceased.

Affirmed.

Bonner & Bonner, of Camden, for appellants.

B. M. Miller, of Camden, for appellees.

KNIGHT Justice.

Dr. C. C. Watkins, late a resident citizen of Wilcox county, Ala., died on December 21, 1935, intestate, and on petition of Mrs. Viola Watkins letters of administration upon the estate of said decedent were issued to her from the probate court of said county. In her petition for letters, Mrs. Watkins claimed that she was the widow of Dr. Watkins, and it was upon this representation that letters of administration were issued to her.

Upon due and timely petition or bill the administration of the estate was removed from the probate court to the circuit court, in equity, of Wilcox County.

The bill in this cause is filed by the mother of Dr. Watkins, and all of his brothers and sisters, except Nathan F. Watkins, a brother of deceased, and who is made a party defendant to the bill along with Mrs. Viola Watkins, individually, and as administratrix of the estate of Dr. Watkins.

We may here state that since the appeal was taken Mrs. Viola Watkins has died, and the cause has been revived, as to her individually, in the name of her executrix, Zolan C. Chapman, and in the name of Eulynne C. Osoinach as administratrix de bonis non of the estate of Dr. Watkins, deceased.

It is averred in the bill that the complainant Mrs. Ida P. Watkins is the mother, and the other complainants are brothers and sisters of the deceased, and constitute all the heirs at law and next of kin of the decedent, except the said Nathan F. Watkins.

It is also averred that the said Viola Watkins was not the widow of the said decedent, and therefore was not entitled to any homestead rights, dower, or distributive share in the estate of said decedent.

It is charged that the said Viola Watkins was, at the time of her reputed marriage to Dr. Watkins, the surviving widow of Dr. R. Z. Chapman, a blood uncle of the deceased, and that three children were born of this marriage, and that these children are still living.

It is further charged in the bill that Dr. Watkins and Mrs. Viola Watkins, then Viola Chapman, well knowing the relationship existing between them, and that the laws of Alabama inhibited, under severe penalty, their intermarriage, for the purpose of evading such law, did go from their domicile in Alabama to the city of Atlanta, in the state of Georgia, and did there intermarry. That within a few days after their marriage, they returned to their Alabama domicile, and lived together as man and wife until the death of Dr. Watkins in 1935.

Complainants charge in their bill that this marriage was repugnant to the incest statutes of Alabama, and contrary to the established public policy of the state of Alabama, as disclosed by the statutes and laws of said state, and was, therefore, null and void in Alabama.

Among other matters, the bill prayed that the said marriage of Dr. Watkins and the said Viola Watkins be "declared and decreed" void ab initio, that it be declared repugnant to the pronounced public policy of the state of Alabama, and contrary to the positive laws of said state, and that by said marriage the said Viola Watkins acquired no property rights in the estate of said decedent.

The respondent Viola Watkins, individually and as administratrix of the estate of Dr. Watkins, deceased, demurred to the bill as a whole, and to that phase of the bill which seeks to have the marriage of Dr. Watkins and the said Viola Watkins decreed to be "null and void ab initio and to adjudicate the property rights" of the parties. The main ground relied on is that the bill in this respect is without equity.

The question here presented, therefore, involves the validity of the marriage of Dr. Watkins to the respondent Viola Watkins, and this is the only question really presented by the record. It is not contended that the laws of the state of Georgia, where the marriage was consummated, prohibited the intermarriage of a man and woman occupying the relationship which existed by affinity between these two spouses. We must assume that the laws of Georgia permitted the nephew to marry the widow of his deceased uncle, as it is averred that the marriage occurred in that state, and the bill nowhere avers that a marriage between persons so related was contrary to any law of said state.

It is a general rule of law that a marriage valid where celebrated is valid everywhere. But this general rule, like other rules of law, is not without its exceptions. Of course, a marriage which is contrary to the law of nature as generally recognized in Christian countries is void everywhere, and so a marriage which the law-making power has declared void, either in express terms or by necessary implication, shall not be allowed any validity. Pennegar and Haney v. State, 87 Tenn. 244, 10 S.W. 305, 2 L.R.A. 703, 10 Am.St.Rep. 648.

Section 8991 of the Code provides: "The son must not marry his mother or stepmother, or the sister of his father or mother, or the widow of his uncle. The brother must not marry his sister or half-sister, or the daughter of his brother or half-brother, or of his sister or half-sister. The father must not marry his daughter or granddaughter, or the widow of his son. No man shall marry the daughter of his wife, or the daughter of the son or daughter of his wife; and all such marriages are hereby declared incestuous."

Section 4522 of the Code provides: "If any man and woman, being within the degrees of consanguinity or relationship within which marriages are declared by law to be incestuous and void, and knowing of such consanguinity or relationship, intermarry, or have sexual intercourse together, or live together in adultery, each of them must, on conviction, be imprisoned in the penitentiary for not less than one nor more than seven years."

These two sections of the Code were first adopted in substantially their present form in 1852, appearing in the Code of 1852 as sections 1942 and 3234.

When Alabama was a part of the Mississippi Territory, the Legislative Council and House of Representatives of the Mississippi Territory enacted a law regulating the solemnization of marriages, the eighth section of which is as follows: "That if any person shall marry within the following degrees; that is to say--if the son shall marry his mother or step-mother, the brother his sister, the father his daughter, or his daughter's daughter; or if the son shall marry the daughter, begotten, and born of his stepmother; or his aunt, being his father's or mother's sister; or marry his uncle's widow; or if the father shall marry his son's widow; or if any man shall marry his wife's daughter, or his wife's son's daughter, or his wife's daughter's daughter; every person or persons so unlawfully married, shall be prosecuted by indictment; and on conviction shall be fined, not exceeding five hundred dollars; to the use of the territory. And the court, on conviction as aforesaid, shall moreover declare such marriage null and void, to all intents and purposes; and may at their discretion, cause the parties so separated, to enter into a recognizance with security, that they will not cohabit thereafter: Provided that nothing herein contained shall be so construed as to render illegitimate the issue of any such marriage, begotten before the same is so annulled." Mississippi Territorial Statute (1807), pp. 368, 371.

Thus it will be seen that from the earliest days of Alabama as a state there have existed here laws defining the degree of relationship, both of consanguinity and affinity, within which marriages are prohibited as being incestuous, and by necessary implication, void. By these laws, as early as 1805, the nephew was prohibited from marrying the widow of his uncle. Such a marriage was declared incestuous, and by this territorial act, the parties marrying in violation thereof were subject to indictment, and, upon conviction, subject to a fine of not exceeding $500, to the use of the territory. Since 1852, the violation of the statute has been made a felony, with punishment from one to seven years.

It is further to be noted that the territorial act was not as broad in its terms, nor as severe in punishment, as is provided in the Code of 1852.

Section 4522 of the Code not only makes it a felony for a man and woman, being within the prohibited degrees of consanguinity or affinity, to intermarry, but it also makes it a felony for them to have sexual intercourse, or live together in adultery.

It cannot be argued, with any degree of plausibility, that marriages between persons within the prohibited degrees of relationship are not by the incest statutes of Alabama declared to be incestuous and void. Sections 8991 and 4522 of the Code stand in pari materia, and must be construed together. So construed, we must and do hold that marriages prohibited by section 8991 are absolutely void, void ab initio.

Judge Goldthwaite, in writing for this court in the case of Wall v. Williamson, 8 Ala. 48, made the following observation, with respect to the validity of marriages generally: "The...