Eubanks v. Banks , 34 Ga. 407 ( 1866 )

Harris, J.

The facts of this case are novel, and the point involved is one of much importance. Elizabeth Yarborough, the mother of complainants, married Wilson in the spring of 1818. He deserted her in about a year, and went into Tennessee? a distance of eight hundred miles, and remained there, unheard of, for nineteen years and a half before returning back to North Carolina. He never saw her after he abandoned her, or had any communication, direct or indirect, with her. In 1828, Elizabeth Wilson was married to Thomas Eubanks, Wilson having before this been reported to be dead. The plaintiffs in error are the children of this latter marriage. Thomas Eubanks had another set of children by a previous mari’iage. He died several years since.

nis children by the first marriage seek, by the bill of the administrator of Ambrose ^* Eubanks, (one of the children of Thomas Eubanks by his first marriage) to deprive plaintiffs in error, children of the half blood on the paternal side, of their right to inheritance, by alleging their illegitimacy as a necessary consequence of the facts stated.

To sustain the idea of the illegitimacy of the plaintiffs in error, we have been referred to the acts of the Legislature of North Carolina, to-wit, an Act passed in 1790, entitled “ An Act to restrain all married persons from marrying again, .whilst their former wives or former husbands are living.” This Act provides that those who violate it shall be guilty of felony, and suffer death therefor as in cases of felony; but that it shall not extend to any person whose husband or wife shall continually remain beyond sea for the space of seven years together, nor to any person or persons whose husband or wife shall continually remain beyond sea for the space of seven years together,—such person or persons not knowing his said, wife or her said husband to be living within that time.

The Act of 1790 was re-enacted in 1809, omittmg the proviso.

Upon the facts in the case, under the Act of 1790, we think it is clear that its penalty could not have affected Mrs. Eu-banks for her second marriage,’her first husband being alive.

[1.] It is a familiar principle of the common law that the lex loci is the general rule adhered to by Courts, in construing contracts, questions of marriage, legitimacy, and rights of succession to property. It has been adopted by so many States, that it now constitutes an essential portion of what is denominated international jurisprudence. It has lost none of its efficiency as a rule by this; but on the contrary, it has made, thereby, a bond of amity between nations; yet, it is subject to a great controlling idea, that, upon comity, it will not be enforced if it involves anything immoral, contrary to general policy, or violative of the conscience of the State called on to give it effect. "With this subordination, comity requires that we should give effect to the laws of North Carolina; not otherwise.

[2.] If it had been the design of the Act of 1809, by omitting the proviso contained in the Act of 1790, to allow of no exouse for a second marriage, the first husband being alive, but reported and believed to be dead, and, as a necessary consequence, to bastardize the issue of such second marriage, we are forbidden by oiir own policy and conscience from so interpreting the laws of a sister State, without other and better evidence than that furnished by these Acts. No dvreot judicial decision upon these Acts has been produced. There should have been some case cited where a marriage, made as this was after the lapse of more than seven years, had been, by judgment of the Court, held to be null and void; and, further, that the issue of such marriage was illegitimate, before we were called on to say such were the laws of North Carolina.

Surely, when in Georgia the issue of such second marriage of Elizabeth Eubanks, had they been born on the soil of Georgia, though the marriage was in North Carolina, would not be held by our Courts as illegitimate, but would be protected from such a stigma, as also from deprivation of rights of inheritance, we ought not to be hasty to draw the conclusion that her laws and policy differ from our own.

[3.] On the contrary, we think the Act of 1809 but threw the matters of excuse back upon those recognized by the principles of the common law. Under it, such a marriage as the one we are considering was excused from the penalties of bigamy; and unless the marriage was dissolved by the judgment of law, the marriage was treated as legal, and the issue held to be legitimate. At most, the second marriage in this case, by the common law, would have been held simply voidable.

If so, what a striking illustration is furnished by Blackstone, (1 vol. Com., 434, and quoted by Story in his Conflict of Loaos, seo. 114,) in the case of incestuous marriages. They were voidable only' dnumig the lives of the pa/rties. If not avoided during the lives of the parties, by judgment of a Court, these marriages were deemed valid to all intents and purposes, and the issue held legitimate.

In the case under consideration, no such odium as that of incest attaches to this second marriage—a marriage made before five or six witnesses; the parties dwelling together for many years as husband and wife; the marriage made under the sanction of a judicial officer; no indictment against her for bigamy; none for living in a state of adultery; no step taken to avoid this marriage; at length, Eubanks dies, and Wilson reappears in North Carolina with another wife and four or five children.

Why, if the marriage here was illegal and voidable, attach, in this case, severer penalties (to be followed by such terrible consequences to its innocent offspring) than in the revolting case of incest? There can be no sound reason, on principle, why the two cases shall be distinguished. As Eubanks, the father of the two sets of children claiming, equally, distribution of the estate of Ambrose ^* Eubanks, is dead, having died before this disreputable attempt was made by the older set to bastardize the younger, and his last marriage not having been annulled by any legal proceeding, nor declared, by any statute brought to our notice, to be absolutely null and void; we will not (nor does comity require it of us) go the length asked, of declaring complainants illegitimate: but, presuming that the Courts of North Carolina are governed by common law principles common to that State and this, we hold, upon the testimony in the case, that the marriage of Elizabeth Wilson with Thomas Eubanks was legalized by them; and being so, that the children of that marriage are legitimate, and being children of the half blood on the father’s side, are entitled to distribution with the children of the whole blood of Thomas Eubanks, in the estate of Ambrose * Eubanks.

Let the judgment below be reversed.

* Alfred.—Rep.