Rice v. Efford
| Decision Date | 16 November 1808 |
| Citation | 13 Va. 225 |
| Parties | Rice and Others v. Efford and Another |
| Court | Virginia Supreme Court |
On an appeal, taken by the defendants, from a decree of the Superior Court of Chancery for the Williamsburg District pronounced in October, 1803.
The appellees, Ann Efford and Thomas Shurley, (the complainants in the Court of Chancery,) were illegitimate children of Richard Rice and Judith Shurley, who, after the birth of those children, and about the year 1776, were married. Richard Rice had other children by a former venter (confessedly born in wedlock,) as well as children by Judith Shurley, after their intermarriage. He died in the year 1799 having previously, on the 31st of January, 1795, caused his will to be written, in which he recognised his illegitimate children in the following terms: The rest of his estate was given to his other legitimate children. This will was signed by the testator, but was neither in his hand-writing, nor was it attested by any witnesses.
The District Court of Northumberland, in April, 1799, established the foregoing paper as sufficient to pass the personal estate; and the object of this suit was to have an equal distribution of the real estate among all the children, as well those born before, as after wedlock.
The answer relied on the circumstances, that, if a marriage ever did take place between Richard Rice and Judith Shurley, (which was denied,) it must have been before the 1st day of January, 1787, when our new law of descents took place; and that, as the complainants were originally bastards in the eye of the law, and were not legitimated by any subsequent act, they were not entitled to any part of the lands.
The fact of the marriage was established by testimony; and the Chancellor being of opinion " that the recognition of the plaintiffs by their father, subsequent to the operation of the act to reduce into one the several acts directing the course of descents, was fully proved," decreed an equal distribution of the lands whereof Richard Rice died seised, among all his children, as well legitimate as illegitimate. From this decree the defendants appealed.
Randolph, for the appellants, said that he would attempt to distinguish this case from that of Stone v. Keeling, decided in May, 1804; but, on being told by Judge Tucker that the principle point relied on, had been expressly decided in Stone v. Keeling, Mr. Randolph did not press the argument any further.
Warden and Heath, for the appellees. The will of Richard Rice not being wholly in his hand-writing, or attested by the number of witnesses required by law, it was correctly decided by the District Court that it was not sufficient to pass real estate. The sole question then is, ought the lands of a testator, as to which he dies intestate, to be equally divided among all his children, whom he recognises as such, whether they be born before or after the marriage with their mother. The law is explicit on this point, [1] and the only inquiry is, whether the will of Richard Rice be sufficient evidence of a recognition of the appellees, who were his children born before wedlock. The marriage is not only proved by the witnesses, but is admitted by the devisor himself, in his will. He says they were both born before wedlock, and calls one " his son," and the other the " sister" of that son. He uses the same terms with respect to the children born before marriage and those born after.
In the case of Stones v. Keeling, the Court decreed that the children of a marriage deemed null in law, should equally take with others. The clause of the act of Assembly, which provides for the legitimation of children born before wedlock, is equally powerful; and the Chancellor having directed a distribution of the lands among all the children of the testator, made a correct decree, which ought to be affirmed.
OPINION
Wednesday, November 16. The Judges gave their opinions.
JUDGE TUCKER. The only question is whether an illegitimate child born before the first of January, 1787, of parents who afterwards intermarried, and the father recognised the child by his will, is within the benefit of the statute. Being satisfied of both these facts, from the evidence, I shall beg leave to read my notes in the cases of Stones v. Keeling, [1] decided the 12th of May, 1804, and Sleighs v. Strider, [2] the 20th of April, 1805.
JUDGE TUCKER having read these two cases, as inserted in the notes below, concluded with expressing his opinion that the decree of the Superior Court of Chancery was correct, and ought to be affirmed.
There are two questions in this case; 1st. Whether the marriage of the parents of the appellees is sufficiently proved; --and, 2dly. Whether that marriage (being antecedent to the act of 1785) is embraced thereby. As to the first question, I am of opinion, that under the liberality of construction which is allowed in relation to the proof of marriage, and under which this Court acted in the case of Stones v. Keeling, the marriage in question is abundantly proved. The testimony of Elizabeth Stott, Thomas Coleman, and B. M'Carty, which alone might be sufficient, is confirmed, beyond all question, by the will contained in the record, which not only recognises the plaintiffs as the children of the testator, but also admits a marriage.
As to the second question, it was held in the case of Stones v. Keeling, that the issue of marriages, existing at the time of passing the act, which were deemed null in law were legitimated by the act: and I see no reason for a diversity of construction in relation to the question before us, touching the legitimating bastard children, by a posterior marriage between their parents, under the same section of the act; except what arises from the words, " shall afterwards intermarry," which might seem to import only marriages to be celebrated in future. That word " afterwards," however, is more properly to be referred to the birth of the bastard children, than to the passage of the act; and no good reason could possibly have existed with the Legislature, for varying the construction of a section embracing two descriptions of cases standing on a similar foundation. No objection to this construction can arise, in either case, on the ground that the act invades private rights: --at most, in the case before us, it is only a possibility of an interest that is invaded; a possibility in relation to the children born in wedlock, depending upon their surviving their father, and his dying intestate. This construction of the act, therefore, however it may be as to the inception of the right, is only prospective as relates to the consummation of it; --it applies to cases only where the father has died posterior to the passage of the act. This case therefore varies from that of Elliott v. Lyel: [a] in that case the construction contended for was repelled, as it went to vary the contract of the parties from what it was under the law existing at the time it was entered into.
As to the case of Sleighs v. Strider, I have seen Mr. Call's note of it. According to that, it would seem that the judgment was merely affirmed by the Court; and as the appellee's counsel had contended, (as appears from his statement,) first, that Richard Hall took an estate tail, which was turned into a fee, by the act of 1776; or secondly, that T. Hall was legitimated by the act of 1785; it does not necessarily follow that the last was the ground of decision upon which the judgment of the Court was founded. I have no doubt, however, of the accuracy of the note of the Judge who preceded me, in relation to what passed in conference on the subject; and on the whole, am of opinion to affirm the decree.
JUDGE FLEMING said it was the unanimous opinion of the Court that the decree be affirmed.
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Notes:
[1]This act first passed in 1785, and took effect the 1st day of January, 1787. It is now incorporated in the Revised Code, vol. 1, c. 93, p. 170, s. 19, and is in the following words: ...
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