Case 56 — Action to Set Aside Deed

May 4.

#### Botts & Others v. Botts & Others.

APPEAL PROM MONTGOMERY CIRCUIT COURT.

Judgment for Plaintiff and Defendant Appeals.

Reversed.

Slaves — Customary Marriages — Descent ^nd Distribution — Burden of Proof.

Held: 1. The parties to a customary slave marriage acquired no marital property rights hy virtue of the act of February 14, 1866, where they did not thereafter make declaration of their intention to continue the relation as provided for by that act.

2. The children of such a marriage, born before the passage of that act, were legitimate, notwithstanding the failure of the parents . to comply with the provisions of the act.

3. Where children claim as heirs a share of their grandfather’s estate through their mother, who was the issue of a customary slave marriage, the burden is on them to show that the mother was born before the passage of the act of February 14, 1866, the provisions of that act never having been complied with by her father and mother.

Held by extended opinion: 1. Where a man and woman were publicly married in a church by the pastor in charge, and thereafter lived together as husband and wife, and were so recognized by the community in which they lived for nearly thirty years, the presumption that they were legally married is conclusive in favor of the woman’s rights as widow.

2. Where appellees failed to establish a material fact on which their right to inherit depended, the court will, as they are infants, depart from the ordinary practice, and allow them, on the return of the case, to take testimony to establish their right as heirs.

ED. C. O’REAR & ROB'T. H. WINN for appellants.

1. The marriage of negroes in a state of servitude is void. Du-maresly v. Fishly, 3 A. K. Marshall, 368; Free Frank, &c., v. Denham’s Adm’r, 5 Litt., 330; Ewing v. Bibb, 7 Bush, 6S4.

2. Cohabitation and recognition of the married relation after the enaetm.ent of the revised statute did not and could not constitute a valid marriage in Kentucky. Rev. Stat., chap. 47, art. 1, sec. *4152, sub-division 4 and seo. 10 oí same chap, and act; Rstill v. Rogers, 1 Bush, 62; Harris, &c., v. Harris, &c., 8 Ky. Law Rep., 727.

3, The statutory remedy of February 14th, 1866, avails nothing unless its *proviso-,*is complied with; and its remedy is the only method of legalizing the marriages of slavery. Estill v Rogers, 1 Rush, 62; Stewart v. Munchandl-er, &c., 2 Bush, 278; Brown, &e., v. MoGee, &c., 12 Bush, 428; Dowd, &e., v. Hurley, &e., 78 Ky., 260; Acts 1865-6, chap. 556, sec. 2, page 37.

THOMAS TURNER, Attorney tor appellant.

1. Marriage of slaves during slavery is utterly void and no marital rights accrue therefrom.

2. The appellees, Sarah Botts and Phil. Botts, never complied with the act of 1866, so as to legalize their slave marriage. Kuln v. Knauer, 7 B. Monroe, 130; Robbins v'. Com., 6 Bush, 311; White-sides v. Allen, 11 Bush, 23; Allen v. Allen, 8 Bush, 491.

H. R. iPREWITT, Attorney tor appellee.

I. Phoebe could not have legally married Philip Botts, she then being the wife of Ed. Smith.

2. ,Sarah Botts was the legal wedded wife of Philip Botts, she having - been married in accordance with the customary matrimonial rights among slaves, and she lived with him, as his wife, up to his death. Brown v. McGee, 12 Bush, 428; Davis v. Meaux, &e., 15 Ky. Law R-ep., 308; Whitesides, &c., v. Allen, 11 Bush, 23.

Opinion or the court by

JUDGE BURNAM

Reversing.

Two questions are raised1 upon- the appeal in this case. The first question to be determined is whether the appellant Phoebe Botts or the appellee Sarah Botts is the widow of Philip Botts, deceased, and as such entitled to the rights belonging to a widow; and the second, whether or not the children of Sarah Botts, alleged to be the offspring of her slave marriage with Philips Botts, are entitled to inherit from their alleged father. The evidence discloses this state of facts: Philip Botts, a negro slave, was- married about the year 1852 or 1853 to Sarah, who was- also a slave. They lived as husband and wife, ás that relation *416existed among slaves, until slavery was abolished, and for a short time thereafter. After the cessation of this relation between Philip Botts and Sarah, she left this State, and removed to Ohio, and about the year 1867 Philip Botts married appellant in the Christian Church at Mt. Sterling, the ceremony being performed by the colored preacher in charge of that church. After this marriage, Philip Botts and appellant lived openly together as husband and wife, until his death, for about twenty-nine years. ' It is claimed that this marriage was by authority of a license granted pursuant to an act of Congress approved March 8, 1865, establishing, a bureau of refugees, freedmén, and abandoned lands, which was invested with the military control of the social relations of negroes; but no documentary evidence to this effect is filed in the record, and the parol evidence on this point is not at all conclusive. After his marriage with appellant, and while he was living with her, the evidence conduces to show that after the return of ap-pellee from Ohio to Kentucky Philip Botts resumed occasional illicit sexual relations with her, which were surreptitiously sustained between them as long as he lived; and appellee testifies that as a result of this intercourse three children were born — her two sons, Sandy and Philip, and a daughter, Mary J.; the latter of whom at the institution *of*this suit was dead, having left three children— Lucy, Harry, and Leonora Crump. These children of Mary J. were all infants under the age of fourteen years, and all of them were made defendants in this proceeding. Ap-pellee had1 a number of other children, who died before Philip Botts, without leaving issue. She testifies that her sons Saindy and Philip were born after the marriage of Philip Bo'tts to appellant. On the 14th day of February, 1866, an act of the»Legislature was approved, which pro*417vides as follows: “All negroes and mulattoes who have heretofore lived and cohabited, and do now live together as husband and wife, shall be taken and held in law as legally married, and the issue held legitimate for all purposes *;*provided such persons shall appear before the clerk of the county eourt otf their residence, and declare that they have been, and desire to continue, living together as husband and wife, when, upon the receipt of a fee of fifty cents, the clerk shall make a record of such declaration, and for an additional fee of twenty-five cents, shall furnish the parties with a certificate of said declaration. Said record or certificate shall be evidence of the existence of the marriage and the legitimacy of the issue born or to be born to said parties; provided the issue of customary mar-riáges of negroes shall be held legitimate.”

Previous to the passage of this act, the marriage of slaves gave no marital property rights, and the parties to such slave marriages subsequent to the passage of this act only acquired such rights’by complying with the express provisions there of. In the case of Estill v. Rogers, 1 Bush, 62, Judge Robertson construed this act in a case where husband and wife were both slaves until emancipated by the constitutional amendment of December 19, 1865, having lived together in that relation for more than fifteen years preceding the death of the wife in April, 1866, and held that, having failed to comply with the requisitions thereof, they were not legally married, and the husband was not entitled to be her administrator. The same doctrine was announced in Stewart v. Munchandler, 2 Bush, 278. And as appellee and Philip Botts never complied with the provisions of the act of 1866, we are of the opinion that the marriage of 1852 did not give appellee *418any status as his wife, or any property interest in his estate as his widow. But it was held in the case of Whitesides v. Allen, 11 Bush, 23, that the children of customary marriages of negroes born prior to the passage of the act of February 14, 1866, were legitimate, even though their parents had not since made the declaration of their intention to continue the relation as provided for by that act; and this doctrine was adherred to in Brown v. McGee, 12 Bush, 428. It is clear that neither Philip nor Sandy Botts has any interest in the estate sued for, as the evidence very' clearly shows that ‘both of these parties were ‘born after the passage of the act *supra,*and after the marriage of Philip Botts to appellee. See Allen v. Allen, 8 Bush, 490. But the testimony is not at all clear as to the date of the birth of appellees, Lucy, Harry, and Leonora Crump. Whether they were born before or after the passage of the act of 1866 is not disclosed, and, as their right to recover in this proceeding depends upon this fact, and the burden of the proof is upon them to show it, which they have failed to do, the judgment must be reversed, and cause remanded for proceedings consistent with this opinion.

On May 22, 1900, Judge Burnam delivered the following extended opinion in this case:

We have been asked to extend and make more definite the opinion heretofore filed in this case, defining the rights of the appellant Phoebe Botts and the appellees, Lucy, Harry and Leonora Crump. As stated in the original opinion, the evidence of the legal authority authorizing the marriage of Philip and Phoebe Botts was not absolutely conclusive, as there was no documentary evidence offered on this point, and the parol testimony as to the authority under which their nuptials were celebrated is somewhat *419indefinite, 'but these facts are clearly established: After the abolition of slavery they were publicly married in the Colored Christian Church at Mt. Sterling by the pastor in charge thereof. That thereafter they lived1 together as •husband and wife openly and notoriously for nearly thirty years, and were so recognized by the community in which they lived, and by their friends and associates. “Because, of the high favor in- which marriage is held by law, we have transmitted' to us the special maxim, *‘Semper praeswrmtwr pro*matrimonio.’ When a man and woman live together as husband and wife, the law will hold them to be such, even against strong probabilities that they are not, especially when a ceremony of marriage is shown to have been celebrated between them; the presumption being that it is valid, unless some distinct and special fact clearly appear in the particular case to the contrary.” 1 Bish. Mar., Div. & Sep., sec. 77. Records of marriages are frequently destroyed, and it is often impossible to prove them by persons who were present at their solemnization; and largely, therefore, in the practice of our tribunals, marriages are •proven hy presumptions, which, originating in natural reason and justice, have been found to accord with the reason and justice of the law, and indispensable in judicial affairs. It therefore follows that the reputation that the parties are married, and that they lived together as husband and wife, and are treated and received as husband and wife among their friends and neighbors, are facts sufficient to raise a strong presumption of the validity of the marriage between them, and, in the absence of cleár testimony conducing to show that they were never legally married, must be deemed conclusive. And, under the facts in this case, we think this presumption must be indulged in favor of the appellant Phoebe Botts, and she is entitled *420to receive that portion of the estate of her deceased husband secured to widows by law. The testimony in the case does not show the date of the birth of the mother of ap-pellees Lucy, Harry and Leonora Crump. If she was born prior to the passage of the act of February 14, 1866, and was the issue of the slave marriage between Philip and Sarah Botts, they are legitimate, even though their grandparents did not make the declaration of their intention to continue the relation as provided by that act (see Whitesides v. Allen, 11 Bush, 23); and, in view'of the fact that they are infants, the court will depart from the ordinary practice, and allow testimony to be taken on this point, with a view of establishing their rights to the property left by Philip Botts — subject, however, to the interest of his widow, Phoebe Botts, therein.