Succession of Morgan ( 1885 )

Gunby, J.

The rules provided by the Code of Practice for the guidance of the Supreme Court, govern the Circuit Courts, and it should be well understood by the bar that motions to dismiss or amend, prayers for damages or a diminution of the record, or assignments of error, cannot be noticed by the Court unless filed before argument and separately from the brief. 27 An. 185; 5 An. 140; 19 An. 303, 527.

2. A marriage subsequent to the birth of children between the parties will not legitimate the children, unless they are acknowledged by both parents before a notary and two witnesses. 26 An. 94; 28 An. 3.

3. Where slaves lived together as man and wife, with the knowledge of their master, his consent to their marriage will be presumed, and their children become legitimate as soon as the fiat of freedom gave civil life to said union, and said children are entitled to receive from their parents’ succession the $1000 allowed by law to the necessitous widow and minors of deceased persons. 6 L. 470; 3 L. 33; 2 An. 944; 7 An. 253; 15 An. 46; 20 An. 97.

4. It is urged that the mere fact that the deceased consented to live together, and did voluntarily live together and cohabit as man and wife, and accord to each other a continued, public, and unequivocal recognition as such, is not proof of a marriage, and does not, of itself, constitute a marriage; while there is much difference of opinion among jurisconsults on this question there is nowhere any doubt but that proof of such facts should be allowed to establish the existence of a valid marriage until overthrown by strong and positive evidence. This doctrine is founded on public policy, and the dearest interests of society; for while the law in its anxiety, to protect the rights of inheritance and .advance the cause of public morals, provides the most specious safeguards for verifying and preserving the evidence of the marriage ceremony, which it invites and rewards “even unto the third and the fourth generation ; ” yet, where the semblance of this holy relation exists, it does not scrutinize the mere rites and forms on which it is based, but is prone to cover irregularities •therein with the mantle of charity.