Jackson v. Jackson

McSherry, J., delivered the opinion of the Court. This case is now before us for the second time. The first appeal is reported in 80 Md. 176 . The legal principles applicable to the controversy were then laid down, and upon a reversal of the judgment the cause was remanded for a new trial.

A new trial was had resulting in the same verdict and judgment that were recorded on the first trial, and the same parties have again appealed who were the appellants on the former occasion. There was but a single issue involved, and that was whether the appellee is the legitimate daughter of Richard Watson Jackson, who died intestate some years ago. In passing on this issue two juries in different counties have found by their verdicts that she is. The record now before us contains twelve bills of exception, but it will not be necessary to review them separately, because they form several distinct groups, presenting but few questions which require any discussion.

The alleged marriage of the appellee’s mother and father, if it took place as has been twice found by separate juries, took place in the State of Pennsylvania. The evidence relied on to establish this marriage was general reputation, cohabitation and acknowledgment. The admissibility and sufficiency of such evidence to prove a marriage was fully considered on the former appeal, and we need not repeat here ²⁸ what was so recently decided there. There was no effort to prove as a distinct fact that the marriage had been performed with any religious ceremony.

It is true that one of the witnesses in giving the declarations of the parties, stated that they, the mother and father of the appellee, upon' one occasion said they had been married by a minister of the gospel. But it must be borne in mind that the appellee, who was seeking to prove her legitimacy, did not set up a marriage of her parents at a particular place by a particular form or ceremony. Had she done this and failed she would not have been at liberty to rely on general repute to establish the alleged marriage. Barnum v. Barnum, 42 Md. 251 .

Assuming there was no religious ceremony proved or attempted to be proved, as there was not, it has been insisted with great zeal and earnestness that even if the marriage found by the verdict of the jury to have been contracted and consummated in Pennylvania were valid by the laws of that State, yet the legitimacy of the appellee, who was born in Pennsylvania, where her parents then lived, must be determined, not by the laws of that State, but by the law of Maryland; and that if, therefore, the marriage were, by reason of the failure to show there had been some religious ceremony, one that would not on that account have been valid under the statutes of' Maryland, the issue of such a marriage would in Maryland be illegitimate even though the marriage of which that issue was the fruit were conceded to be perfectly valid in the State where it was contracted and consummated. And the case of Doe on the demise of Birtwhistle v. Vardill, 5 B. & C. 438, was much pressed upon us to support that view. But that case and others founded on the same settled principle are clearly distinguishable from the case at bar. It is a maxim as old as the common law that hoeres legitimas est quern miptice demonstrant.

A marriage, if valid where solemnized, is, in general, valid everywhere, and of necessity the offspring of that marriage would be treated as legitimate wherever the marriage itself would be regarded as valid. But a local statute which makes an illegitimate ²⁹ child, or a child born out of wedlock, legitimate upon certain prescribed conditions, such as the subsequent marriage of the parents and the recognition of the child as theirs, can have no extra territorial operation, and therefore cannot give to such child in another jurisdiction an inheritable status not accorded to it by the law of the latter jurisdiction. By the law of England a child born out of wedlock was a bastard. By the law of Scotland the subsequent marriage of the father and mother, and their recognition of the child as theirs legitimated the child.

But that statute could not operate upon real estate in England where the law gave to such a marriage no effect as legitimating prior bom children. The same principle was decided in Barnum v. Barnum, 42 Md. 251 , and Smith v. Derr, 34 Pa. St. 126. We have said that in general a marriage valid where performed is valid everywhere.

To this broad rule there are, however, exceptions. “ These exceptions or modifications of the general rule may be classified as follows : First, marriages which are deemed contrary to the law of nature as generally recognized in Christian countries; second, marriages which the local lawmaking power has declared shall not be allowed any validity. * * * To the first class belong those which involve polygamy and incest; and in the sense in which the term incest is used, are embraced only such marriages as are incestuous according to the generally accepted opinion of Christendom, which relates only to persons in direct line of consanguinity, and brothers and sisters. The second class, i. e. those prohibited in terms by the statute, presents difficulties that are not always easy of solution, and have led to conflicting decisions. This class may be subdivided into two classes; first, where the statutory prohibition relates to form, ceremony and qualification, it is held that compliance with the law of the place of marriage is sufficient; and its validity will be recognized, not only in other States generally, but in the State of the domicil of the parties, even when they have left their own State to marry elsewhere, for the purpose of avoiding the laws of their domicil. Instead of being ³⁰ called a subdivision of the second-class of exceptions, it would be more accurate to say that it is" an exception to the exception and falls within the operation of the general rule first announced, of 'valid where performed, valid everywhere.’ To the second subdivision of the second-class of exceptions belong cases which, prohibited by statute, may or may not embody distinctive State policy, as affecting the morals or good order of society.” Pennegar v. The State of Tennessee, 87 Tenn. 244 ; S. C. with copious notes, 2 L. R. A. 703; State v. Tutty; State v. Ward, 41 Fed. Rep. 753; S. C., 7 L. R. A. 50; Brook v. Brook, 9 H. L. C. 193; Com. v. Graham, 16 L. R. A. 580; S. C., 157 Mass. 73 .

It is obvious, then, as there is no statute in Maryland declaring that a marriage of whose existence there is no other proof than general reputation shall be void; and as at most the statutory provisions relative to the methods of solemnizing marriages in Maryland relate to form and ceremony only, the Courts of this State will recognize the Pennsylvania marriage as valid if that marriage is valid by and under the laws of the latter Commonwealth and does not contravene the declared policy of our own positive law. We are not to be understood as speaking of marriages tolerated elsewhere but denounced by our own positive State policy as affecting the morals or good order of society. Such marriages, however, regarded elsewhere would not be treated as valid here. For instance: The statutes of Maryland peremptorily forbid the marriage of a white person and a negro and declare all such marriages forever void.

It is, therefore, the declared policy of this State to prohibit such marriages. Though these marriages may be valid elsewhere, they will be absolutely void here so long as the statutory inhibition remains unchanged. But the question before us does not belong to such a category. At most all that is asserted against the validity of the alleged marriage of the appellee’s parents has reference to form or ceremony, and these, as we have seen, do not cause a marriage to fall within any of the exceptions 'to the general ³¹ rule that a marriage valid where performed is valid everywhere.

These views merely supplementing what we said in 80 Md. sufficiently answer the objections to and the criticisms upon