Milton v. Escue

Hammond, J., delivered the opinion of the Court. The appellant filed a petition or bill of complaint in the Circuit Court for Washington County, seeking a declaration that she is the legitimate daughter of John Franklin Coleman, deceased, and entitled to his estate to the exclusion of his brother and three sisters who would take otherwise. The chancellor sustained a demurrer to, and dismissed, the petition and petitioner appealed. The petition makes these relevant allegations: The appellant was born out of wedlock in 1922 in Shenandoah, Page County, Virginia; both her mother, ¹⁹³ Annie Elizabeth Milton, and her father, John Franklin Coleman, were residents of that community.

Sixteen years later, in the summer of 1938, John Franklin Coleman went to the home of the mother in Shenandoah and stated that he had wronged mother and daughter and would right the wrong, “meaning thereby that he would rectify the wrong done your Petitioner and her mother by permitting your Petitioner to be born out of wedlock”. John Franklin Coleman desired to marry Annie Elizabeth Milton by a religious ceremony in accordance with the laws of the Commonwealth of Virginia but “was intimidated and prevented from so doing because of the hostility of his family to the proposed marriage”. There follow the two paragraphs which are the heart of the appellant’s case: “7. That your Petitioner’s said father and mother, shortly after the said visit of your Petitioner’s father to her mother’s home, during the summer of 1938, entered into a common law marriage which was kept secret because of the said hostility of the family of your Petititioner’s father to the said marriage, but the said common law marriage between them, although kept secret for the reason aforesaid, was in fact consummated, and your Petitioner’s said father and mother cohabitated for many years as husband and wife until shortly before his death on August 22, 1949, as aforesaid. “8.

That your Petitioner’s father recognized your Petitioner to be, and treated her as his daughter from and after the time when he returned and acknowledged his wrong to your Petitioner and her said mother, as aforesaid, in the summer of 1938 until the time ofTiis death.” It is alleged that the Petitioner is a resident of Shenandoah, Virginia, as was her father, John Franklin Coleman, at the time of his death there on August 22, 1949. He was survived by the Petitioner, his only child, and by three sisters, residents of Virginia and ¹⁹⁴ a brother, a resident of the District of Columbia. Shortly after Mr. Coleman’s death there was appointed a Virginia administrator of his estate. Because he owned in fee simple two lots of ground and improvements in Hagerstown — Identified in the Petition — an Ancillary Administrator, was appointed by the Orphans’ Court of Washington County.

The Maryland Administrator and the sisters and brother of John Franklin Coleman are the parties defendant to the petition. The mother of the petitioner was not joined as a party. Appellant contends that legitimacy is determined by the law of the domicile of father and child. She says the Virginia law is that if a man, having had a child by a woman, shall afterwards enter there into a secret common law marriage with the mother — although common law marriages are not valid in Virginia — and shall recognize the child as his own, thereby the child is made legitimate.

She argues that Maryland should apply the usual rule and, giving recognition to that legitimate status, permit her to inherit Maryland real estate from her father. The statute law of Virginia relied on by the appellant are Sections 5269 and 5270 of the 1919 Code, which appear as Sections 64-6 and 64-7, respectively, of the Code of 1950. They read: Section 64-6: “When marriage legitimates children. — If a man, having had a child or children by a woman, shall afterwards intermarry with her, such child or children, or their descendants, if recognized by him before or after marriage, shall be deemed legitimate (Code 1919, Sec. 5269)”. Section 64-7: “Issue legitimate though marriage null. — The issue of marriages deemed null in law, or dissolved by a court, shall nevertheless be legitimate (Code 1919, Section 5270)”.

It is said that they — or their predecessors — became part of the law of Virginia at the urging of Thomas ¹⁹⁵ Jefferson who was repulsed by the harshness of the English rule that bastards could never be legitimated. In any event, from their effective date in 1785 they have been liberally construed by the Courts of Virginia to effectuate their remedial and beneficent purpose of removing the stigma of bastardy from innocent offspring of unmarried parents and to keep the sins of the father from being visited upon the child. Virginia construes the two sections together so that a child born of a couple before their marriage is made legitimate by their subsequent marriage even though the marriage turns out to be void. In Goodman v. Goodman, 150 Va. 42 , 142 S. E. 412 , a married woman left her husband, and some ten years later had a son by the man with whom she was living.

When the boy was seven years old the mother and father had a ceremonial marriage, believing they had a right to do so. Actually the mother had never been divorced and her husband was living. The father died intestate and the Court, relying in part on Hawbecker v. Hawbecker, 43 Md. 516 , held the statutes satisfied and the son to be legitimate and entitled to inherit. It said that Section 5269 (now 64-6) must be read in the light of Section 5270 (now 64-7) because: “Section 5269 does not declare that the marriage between the man and the woman shall be a valid marriage in order to legitimate a child born before the marriage.

Since Section 5270 legitimates children born after the celebration of a void marriage, it seems clear that the word ‘intermarry’ which appears in Section 5269, is used in its broadest sense and was intended to include every marriage, valid or void, entered into in accordance with the forms and ceremonies of the law * * [ 150 Va. 42 , 142 S. E. 413 ] The Court referred to the argument which had been made to it, based on New York and Massachusetts statutes and cases, that only a valid and legal marriage ¹⁹⁶ can legitimate. a child born before it occurs, and rejected it in these words: “In so far as the New York and Massachusetts cases are in conflict with the conclusions we have reached in this case, we decline to follow them.” The Goodman case had been preceded by a number of others which show the lengths the Virginia courts go to apply the statute. In Stones v. Keeling, 9 Va. 143 , the issue of a bigamous ceremonial marriage were held legitimate. So also were the issue of an incestuous union, Heckert v. Hile, 90 Va. 390 , 18 S. E. 841 , and of a marriage of an insane person incapable of the essential consent. Cornwall v. Cornwall, 160 Va. 183 , 168 S. E. 439 .

West Virginia, as part of its Virginia heritage, has statutes identical with Sections 64-6 and 64-7 of Virginia. In Beverlin v. Beverlin, 29 W. Va. 732 , 3 S. E. 36 , the Court held common law marriage invalid in that State (this is so also in Virginia —Offield v. Davis, 100 Va. 250 , 40 S. E. 910 ) but Judge Snyder who wrote the opinion said he came to that conclusion with less regret because the statutes made the issue of such a marriage legitimate. In Kester v. Kester, 106 W. Va. 615 , 146 S. E. 625 , the testimony was that the couple had eloped and had gone through a wedding ceremony. The credibility of this testimony, and the validity of the wedding as a ceremonial marriage, were vigorously attacked.

The children of the union were held legitimate on the theory that, in any event, they were the offspring of a relationship which would constitute and be recognized as a common law marriage in jurisdictions which permit such marriages, and which would be such in West Virginia save for its statutory requisite of a ceremonial marriage. Fout v. Hanlin, 113 W. Va. 752 , 169 S. E. 743 , Luther v. Luther, 119 W. Va. 619 , 195 S. E. 594 , and Pickens v. O’Hara, 120 W. Va. 751 , 200 S. E. 746 , all bow to the principle of Kester v. Kester, say that it must be adhered to as a correct pronouncement of ¹⁹⁷ the law, and that a relationship proven to be one which would meet the test of a common law marriage, where they are recognized, is not in West Virginia “no marriage at all” but rather, in that State a marriage “deemed null at law” within the purview of the legitimatizing statute. In each of these cases, however, the alleged common law marriage was held not to meet the test of good faith, certainty and reputation sufficient to pass muster even by the liberal standard applied to legitimatize issue. In McClaugherty v. McClaugherty, 180 Va. 51 , 21 S. E. 2d 761 , an infant daughter sued her father for maintenance and support which she claimed as his legitimate daughter.

The father admitted the paternity but denied the legitimacy. Plaintiff’s mother testified to a marriage ceremony. The license could not be found and her story was that they had buried it in the sand to keep the marriage secret. Nevertheless, when they returned to their home town, they lived together as husband and wife and were so known in the community for twenty years.

A child was born sometime after their return home. The lower court rendered an opinion which the Court of Appeals of Virginia adopted as its own. In the opinion, the Court found that the evidence fully corroborated the testimony of the mother that she and the father were married and completely rebutted any inference in his testimony that their relationship was meretricious. Having so found a ceremonial marriage, proven by cohabitation in the community for many years and general reputation and holding out of marriage — the father was exempted during the First World War as a married man with a child — the court went on to review the West Virginia and Virginia cases on the subject of common law marriage, particularly the West Virginia cases of Pickens v. O’Hara and Font v. Hanlin, both supra, and said : “These decisions of the Supreme Court of Appeals of West Virginia, and dicta of the distinguished judges of our own Supreme Court of ¹⁹⁸ Appeals, concurred in by the entire court, are each entitled to much respect.

They concur in construing section 5270 to legitimatize the issue of common law marriages. This construction is supported by sound reasoning from the Virginia decision. There is no Virginia authority to the contrary.” The McClaugherty case was cited with approval in Henderson v. Henderson, 187 Va. 121 , 46 S. E. 2d 10 . In this case, the Virginia Court of Appeals held Section 64-7 to confer upon one made legitimate under its terms all the rights of a child born in lawful wedlock.

It said: “The issue of marriages decreed null in law, without regard to the ground of nullity are legitimated. They are consequently endowed with all the rights of legitimate issue for all purposes and in their relation with other persons. They are put on a par with children born in lawful wedlock.” Below the chancellor said that the case should be decided by reference to Virginia law, but added that the question was largely moot because the legitimation laws of both Maryland and Virginia have the same characteristics and requirements. He then went on to hold that to rebut the presumption that the relationship which started as meretricious so continued, “a lawful subsequent marriage” must be shown.

He said: “It seems to me that the essentials which must be stated in order to state a good cause of action where the child is admittedly born out of wedlock, are the following (1) the subsequent intermarriage of the parents — intermarriage in a lawful manner (Dilworth v. Dilworth, 134 Md. 589 ), (2) the public acknowledgement of that marriage (Schilling v. Parsons (Ind.) 36 N. E. 2nd 958) and (3) the public acknowledgement by the father of the daughter.” In our view of the case, whether or not the appellant is the legitimate daughter of John Franklin Coleman ¹⁹⁹ depends entirely upon the law of Virginia, the domicile of both father and child. Her status, as determined by Virginia law, will control and be applied in Maryland. We think the Virginia courts would not find “intermarriage in a lawful manner” an essential if, by that phrase, is meant that the marriage must be a marriage which is recognized by the law of Virginia as sufficient to make the couple who enter into it husband and wife— in other words, a ceremonial marriage. We think the law of Virginia to be that if there are alleged and proven facts and occurrences there which would constitute a valid common law marriage if those facts and occurrences had happened in a jurisdiction which recognizes such marriages, then that marriage, equally with a void ceremonial marriage, is one “deemed null in law” by the Virginia statute and its courts, and therefore one which makes the issue of the couple legitimate, whether ante-nati or post-nati.

See also Campbell v. Allen, 208 Ga. 274 , 66 S. E. 2d 226 , and Copenhaver v. Hemphill, 314 Ky. 356 , 235 S. W. 2d 778 , in which the Georgia and Kentucky courts, in construing legitimation statutes similar to the Virginia statutes,