Williams v. Witherspoon

• Decision Date: 20 April 1911
• Citation: 171 Ala. 559,55 So. 132
• Parties: WILLIAMS ET AL. v. WITHERSPOON ET AL.
• Court: Alabama Supreme Court

55 So. 132

171 Ala. 559

WILLIAMS ET AL. v. WITHERSPOON ET AL.

Supreme Court of Alabama

April 20, 1911

Appeal from City Court of Montgomery; William H. Thomas, Judge.

Suit by Lucy Witherspoon and others against Ph be Williams and others. Decree for complainants, and defendants appeal. Affirmed.

W. A Gunter, for appellant.

Warren S. Reese, J. Winter Thornington, and Arrington & Houghton for appellees.

SAYRE J.

Appellees filed their bill on the equity side of the court below for a sale of land for division, claiming as children and heirs of Nancy Johnson, deceased. They were the children of Nancy, to speak according to nature, though born slaves and of unknown paternity. After their birth, and while she was yet a slave Nancy entered into a customary slave marriage with Johnson, under whom the defendants claimed, and thereafter continued to live with him as his wife until her death in 1896. No children were born of this marriage. In 1878 she acquired the property in suit. The question, then, is whether complainants inherited the property by virtue of section 3760 of the Code, which, with some differences not important in this connection, has been the law of this state since the year 1824, and which provides that: "Every illegitimate child is considered as the heir of his mother, and inherits her estate in whole or in part, as the case may be, in like manner as if born in lawful wedlock."

It is settled law that, when the word "children" is used in a statute, it means "legitimate children," unless the context broadens its meaning. 5 Am. & Eng. Encyc. p. 1095, note. It is to be conceded, therefore, that the general statute of descents and distribution (section 3754 of the Code) does not avail the complainants, and that, apart from the section which we have quoted, complainants have no heritable blood, and that they can take nothing by virtue of the ordinance of November 30, 1867, or the act extending it, approved December 31, 1868. Smith v. State, 9 Ala. 990; Malinda v. Gardner, 24 Ala. 719; Acts 1868, pp. 175, 527; Washington v. Washington, 69 Ala. 281; Johnson v. Shepherd, 143 Ala. 325, 39 So. 223. The point of the decisions in those cases was that emancipation did not make a slave father's children his children within the meaning of the statute of descents and distribution, for that it did not remove the obstacle in the way of their inheritance from the father, to wit, that they were not born of a contract. That obstacle stood in their way after emancipation as well as before.

But this record presents a different question. It is whether the complainants come within the beneficial influence of section 3760, the purpose and effect of which is to broaden the meaning of section 3754 in certain cases. It is not to be doubted that as long as the institution of slavery prevailed in this state this section operated in favor of free men only. But the exception, which excluded bastards born of slave parents from the beneficial effect of section 3760, was not to be found in the language of the statute itself, for that language was and is general, but it existed by virtue of another law based upon the necessities of the institution which were such as to deny to all slaves the right either to acquire or transmit property by inheritance or otherwise. In 1 Bish. Mar. & Div. § 163b, the author states his opinion that during slavery the status of bastardy was as foreign to the children of slave marriages, or quasi marriages, as the status of legitimacy. He says: "If a slave was not the legitimate offspring of his parents who were living together in the way of marriage, still he was not a bastard. He had no foul or corrupt blood. The simple fact was that he had no status, as to this particular, the one way or the other. Legitimate, or illegitimate, was a thing having no relation whatever to his condition as a slave." And the effect of what is said for appellants, defendants in the court below is that since complainants were not bastards as long as they were slaves, and no enabling statute has been enacted for their specific benefit, they are still neither legitimate nor illegitimate, and that the statute cannot be made to reach their case except by judicial amendment. This argument has been used in at least one case to exclude...