Stover v. Boswell's Heirs
| Decision Date | 12 June 1835 |
| Citation | 33 Ky. 232 |
| Parties | Stover v. Boswell's Heirs et als. |
| Court | Kentucky Court of Appeals |
FROM THE CIRCUIT COURT FOR FAYETTE COUNTY.
Mr Sayre for Appellant
Mr Chinn for Appellee.
Statement of the case.
The appellant claiming to be the widow and heir of Mingo Stover upon notice to the appellees at the September term of the Fayette Circuit Court, moved said Court, to quash a sale of a house and lot in Lexington, made under their executions issuing from said Court, No. 836, 837, and 838, in favor of Joseph and George Boswell and Spencer Cooper, trading under the name and firm of Spencer Cooper & Co., which motion was overruled by the said Court, and judgment rendered against the appellant for costs. Which opinion of the Court being excepted to, and the evidence spread on the record, the case is brought, by appeal of the plaintiff to this Court.
It appears by the return of the officer, that said house and lot was sold at public auction, on the 19th September, 1831, at two hundred and five dollars, to George Boswell, one of the plaintiffs in the executions, who directed satisfaction to be entered on the executions, in full for the full amount of the same; which amounted, in all, only to the sum of one hundred and thirty-four dollars thirty-five cents; and that a balance was left in said Boswell's hands, due to said Mingo Stover, of seventy dollars sixty-five cents, which was enjoined in his hands, by one Gilbert v. Stover.
It further appears in evidence, that the lot was susceptible of a division, and that a part could have been stricken off, without injury to the balance, that was worth, and would have commanded, the whole amount of said execution and costs.
It also appears, that said Mingo was, many years ago, a slave, that he was emancipated by his master, and claimed the appellant and cohabited with her as his wife; that the appellant and her first child was emancipated by her master; that after their emancipation, said Mingo and the appellant lived and cohabited together as man and wife, for many years, and was generally recognized as such, until, in 1828, they quarrelled, and said Mingo took up with another woman, and left the state for New Orleans, where he died; that prior to his separation from the appellant, he had three children by her, to whom he made a deed of gift of said house and lot, after which, they died.
It is contended, first--that said appellant has not such interest in the house and lot as to be entitled to sustain this motion. She claims an interest in the same as widow of said Minge, deceased, and as heir. Though no marriage is proven, she was for many years recognized and generally reputed to be his wife, and he cohabited with her as such. Cohabitation, reputation, acknowledgment of the parties, and living together as man and wife, are sufficient, generally, in all cases--except, in cases of prosecutions for bigamy, and in actions of crim. con. to establish a marriage between free white persons. 4. Johnson, 53. And we can not perceive any good or valid reason, why the same rules may not be made to apply to free colored persons. If Mingo was her husband by reputation, and cohabitation, she has perhaps a dower interest in said house and lot. But as it has been doubted by respectable authority, whether the wife of a marriage de facto, could be endowed and as it is unnecessary to determine the question in this case, we will proceed to show that she has a fee simple interest in the house and lot, as heir to Mingo, or as heir to her children.
Marriage may b?? pr??sumed from circumstances--(except in prosecutions for bigamy and actions for crim. con.) as for cohabitation, reputation and acknowledgment of the parties, & c., and this general rule must apply to free persons of color, as well as to whites.
The widow inberits the husband's estate, when he leaves no other kindred. Stat. Law, 561.
It does not appear, that Mingo had, at his death, any other lineal or collateral relations, but his reputed wife, the appellant, capable of taking by descent from him. Indeed, the presumption is pretty clear, that he had no other. And if he had no other, and the appellant was his wife, the whole fee simple estate in the lot, is cast, by the twelfth section of our statute of descents, upon her.
But if no marriage existed between them de jure, or de facto, his children were bastards, and as such, could not inherit from, or transmit inheritance to him.
Bastards, by the common law, have no inheritable ??lood. But, by a statute of Ky. (S. L. 565,) they are capable of inheriting and transmitting inheritances on the part of the mother.
The house and lot, as has been stated, was conveyed by him, in his lifetime, to his three children by the appellant. Those three children have died in their infancy, and if they were bastards, by the principles of the common law, they have no inheritable blood, and could neither receive from, or transmit an inheritance to their father, mother, brothers or sisters. But by the 19th section of the act of 1796, it is provided, " that bastards shall be capable of inheriting, or transmitting inheritance, on the part of their mother, in like manner as if they had been lawfully begotten of such mother." By virtue of ...
To continue reading
Request your trial