Jones v. Jones

Grason, J., delivered the opinion of the Court. The main questions arising upon this appeal are, whether the appellees are nephews and nieces of Andrew I). Jones, deceased, and, if they are, whether they are entitled to a distributive share of his estate? After a careful examination of the evidence in the record, we are satisfied that Andrew D. Jones and David Jones were the sous of Kate Jones, and brothers, and that the appellees are the children of David and Hannah Jones.

Without entering, in this opinion, into a detailed review of the evidence, it is sufficient to say that it leaves no doubt that David Jones was married, while yet a slave, to Hannah Williams, a free woman, and that some of her children were born before David became free and some afterwards, and that David and his brother Andrew were both manumitted by Margaret Gardner by deeds, both of which were executed on the 10th of November, 1814, and recorded on Jhe 26th of the same month — David’s freedom to commence five years and Andrew’s six months thereafter. David and Hannah lived together as man and wife, and acknowledged and treated each other as such, and were so recognized by all who knew them, long after David’s emancipation, and up to the time of Hannah’s death, which appears to have ⁴⁵⁴ taken place about thirty years ago; and David died twelve or fifteen years ago. Andrew died in August, 1870, leaving the appellant his widow, but no child and no relatives other than the appellees, who are his nephews and nieces. They are therefore entitled to their distributive share of his estate, unless they are incapable of inheriting by reason of their father and uncle having been at one time slaves.

It has been urged in argument that the marriage of David and Hannah was void by reason of its having taken place while David was a slave, and that therefore their children had no heritable blood; and several authorities-were referred to in support of this proposition. Among these is an opinion of Dfiel Dulafey, Esqr., given in 1767, and contained in 1 H. & McH., 559 . The facts upon which that opinion was based were, that A, a mulatto slave, obtained his freedom and purchased land in fee, and died intestate and without issue. B, also a mulatto slave, and brother of A, obtained his freedom after the death of A, and died, leaving children by a slave woman, whose freedom he had purchased — some of the, children having been born during the slavery of their mother and purchased with her, and some having been born afterAvards — and the question Avas, whether these children could inherit the property of Avhich their uncle died seized, or Avhether it escheated to the State.

It Avill at once be seen from the statement of the facts, that B could not inherit, nor, a'fter his death, could his children ; because at the time of A’s death, B and his children, then born, were all slaves, and there being no one then in existence capable of inheriting, the property escheated. It does not appear from the facts, stated in the opinion, that B and the mother of the children had ever been married, and this fact alone, if there had been no other impediment, Avould have been sufficient to prevent the children from inheriting A’s property. Iii the other eases, referred to by the appellant’s counsel, the parties claiming the property Avere slaAms at the death of the party from Avhom they claimed to inherit, and of course could not take the ⁴⁵⁵ property. But in the case before us, the appellees were born of a free woman, and were themselves free from their birth and capable of inheriting.

Their father, it is true, had been a slave at one time, but his slavery did not affect his children’s condition • and he became free fifty years before Andrew’s death. Mr. Dulaney argues that a slave could not marry because he was a slave, and a contract of marriage would be an invasion of the master’s rights. But ten years after bis opinion was prepared, by the Act of 1777, ch. 12, sec. 11, the Legislature authorized slaves to marry with the assent of their owners, and, whatever the law may have been in this respect before, they could lawfully marry thereafter. Although the marriage would not confer civil rights upon them, .and in no maimer change or affect the relation of master and slave, yet it was legalized, and consecpiently the issue would be legitimate.

As the proof is sufficient to satisfy us that David aud Hannah Jones were married, we must presume, nothing appearing to the contrary, that they were married with the consent of the mistress of David. When he afterwards acquired his freedom, certain civil rights vested in him, as a consequence, such as the right to acquire by purchase or inheritance, and to hold and dispose of property. Upon his death the property of which he might then be seized or possessed would descend upon his children, they being free. Mr. Dulaney further argues that the validity of a marriage depends upon the immediate effect of its celebration, and that, if it is not valid then, it could not be made good by the subsequent accidental circumstance that the parties acquired their freedom, and to illustrate the argument, he puts the case of a man marrying a woman while he bad a wife still living, and says that the accidental circumstance of the first Avifc dying would not make the second marriage valid.

It is true that in such a case the second marriage AArould not be made valid by the death of the first wife, because a marriage under such circumstances is a great moral wrong, and a high crime ⁴⁵⁶ under the law. But there are cases in which marriages, contracted between parties not capable of contracting at the time of the marriage, are made valid by the subsequent ratification of the parties, as in the cases of lunatics and infants, and that without any other or new celebration. Cole vs. Cole, 5 Sneed, 63 ; Wightman