Irving v. Ford , 183 Mass. 448 ( 1903 )

Lathrop, J.

The question which arises in this case is that left undecided when the parties were before us on a petition to the Probate Court to amend the record of a petition for administration of the estate of Robert Irving, otherwise known as Sheridan W. Ford, by substituting the name of the petitioner and liis mother as the next of kin, and to remove the administrator appointed on an earlier petition. See Irving v. Ford, 179 Mass. 216.

The case is now before us on an appeal from a decree of the Probate Court on a petition asking that the petitioner be allowed one third of the estate of Sheridan W. Ford, claiming to be entitled thereto as a son.

For the purposes of this case it must be considered as settled by the previous decision that the so-called marriage between the petitioner’s father and mother in Virginia, while both were slaves, was void, and that the marriage between the common father of the petitioner and of the respondent in Massachusetts was valid; and that the respondent and not the petitioner is the legitimate son of Sheridan W. Ford, unless the statute of Virginia, passed on February 27, 1866, makes him a legitimate child in this State.

This statute declared that all colored persons cohabiting together on February 27, 1866, should be deemed husband and wife, and all their children legitimate, whether born before or after the passage of the act. The father and mother of the petitioner were not then cohabiting together, and the petitioner’s claim is based upon the last clause of the act, which reads as follows: “ And when the parties have ceased to cohabit before the passage of this act in consequence of the death of the woman, or from any other cause, all the children of the woman recognized by the man to be his shall be deemed legitimate.”

At the time of the passage of this act, the petitioner’s domicil was in Virginia, and the domicil of Sheridan W. Ford was in Massachusetts.

We are unable to see any ground upon which the State of Virginia can impose upon a person having his domicil in Massachusetts a legitimate son, when by our law he is illegitimate. By our law it is provided : “ An illegitimate child whose parents have intermarried, and whose father has acknowledged him as his child, shall be considered legitimate.” Pub. Sts. c. 125, § 5. B. L. c. 133, § 5. The Virginia act makes mere acknowledgment sufficient, while our law requires both marriage and acknowledgment.

The law which governs this case is well stated by Mr. Minor in his treatise on the Conflict of Laws, § 100. After stating the question, which domicil should govern, when the act of legitimation is not marriage but mere acknowledgment or a statute of a State, and the bastard has his domicil in one State and his father in another, he proceeds: “ Two points should be noticed in this connection, which will aid us to determine the proper law in this case. The first is that the legitimation of a bastard is the creation of a status which is beneficial to him, and it should be presumed in his favor whenever adequate reason exists for such a course. The second is that this beneficial status cannot be accorded the infant at the expense of a change of status on the part of the father not warranted by his domiciliary law. Applying these two principles, it follows that the law of the father’s domicil at the time of the legitimating act will be the proper law to determine the, status of both parties. If by that law the act in question legitimates the bastard, the beneficial status thus created will in general be recognized everywhere, including the bastard’s domicil, though by the law of the latter State the act would not suffice to create a legitimation. On the other hand, if by the law of the father’s domicil legitimation is not the result of the act claimed to have that effect, though under the bastard’s domiciliary law legitimation would result therefrom, the status of legitimation should not be conferred upon the bastard, for that would be to subject the status of the father to a law to which it is not properly subject.”

In Lingen v. Lingen, 45 Ala. 410, the domicil of the father was in Alabama. The illegitimate child was born in France, having a French woman for its mother. The father while in France acknowledged the child to be his, but he did not marry the woman. This acknowledgment was sufficient in France to make the child legitimate, but not in Alabama. It was held that the legitimation was governed by the law of the father’s domicil, and not by that of the bastard. See also Wharton, Confl. of Laws, § 246.

So in Loring v. Thorndike, 5 Allen, 257, 263, where a citizen of this Commonwealth had an illegitimate child born in Germany, and afterwards married the mother in that country and acknowledged the child there, the legitimacy of the child was determined by the provision of the Rev. Sts. c. 61, § 4. See also Morris v. Williams, 39 Ohio St. 554; Blythe v. Ayres, 96 Cal. 532.

It may be conceded that if the father of the petitioner had been domiciled in Virginia in 1866, when the statute in question was passed, or when he acknowledged the petitioner as his son, the petitioner would have acquired a status as a legitimate son which would be recognized here. Scott v. Key, 11 La. An. 232. Miller v. Miller, 91 N. Y. 315. See also Ross v. Ross, 129 Mass. 243. There are however decisions to the contrary. Smith v. Derr, 34 Penn. St. 126. Williams v. Kimball, 35 Fla. 49.

But as the petitioner’s father, when the statute was passed and when the acknowledgment was made, was domiciled in this Commonwealth, the question of the petitioner’s legitimacy must be determined by our law, which does not recognize acknowledgment alone as legitimation; and the order must be

Decree of Probate Court affirmed.