Perkins v. Levy , 158 Ga. 896 ( 1924 )

Per Cdriam.

'To constitute a valid marriage in this State, there must be parties able to contract. Civil Code, § 2930. A party to a previous marriage undissolved is a party unable to contract marriage. § 2931. A marriage by such a person is void; but the issue of such marriage, before it is annulled and declared void by a competent court, are legitimate. § 2935. Even where a party to a bigamous marriage is convicted of the offense of bigamy, “the issue of such marriage, born before the commencement of any prosecution for polygamy, . . shall, notwithstanding the invalidity of such marriage, be considered as legitimate.” Penal Code, § 369. In the case of Eubanks v. Banks, 34 Ga. 407, this court lielcl that at common law the issue of a bigamous marriage were not illegitimate, “but that the samé were legitimate and capable, under the laws of Georgia, to inherit from their half brother, the son of their father by a prior marriage.” In the instant ease there was no prosecution of the husband for bigamy, and the marriage had never been anulled by any decree of court prior to the birth of the issue of the second marriage. Consequently the court did not err in finding and holding that the defendants, Mrs. Josie Levy and Mrs. Ruby Travis, as well as the plaintiff, W. 0. Perkins, were the legitimate children of J. D. Perkins, deceased, and as such entitled to inherit each an undivided one-third interest in the estate of the decedent. In the case of Curlew v. Jones, 146 Ca. 367 (91 S. E. 115), the rights of children were not involved, but the right of the w'ifo under the second marriage to inherit and convey the property of her husband. In the case of Irving v. Irving, 152 Ca. 174 (108 S. E. 540, 18 A. L. R. 88), the question involved was whether the birth of a child of a bigamous marriage, after the execution of a will by its father, would revoke that instrument. Judgment affirmed.

No. 4029. September 30, 1924. All the Justices concur. B. B. Jackson, for plaintiff. W. J. Laney, Fdgar Latham, and Alston, Alston, Foster & Moise, for defendants.