Evans v. Young , 201 Tenn. 368 ( 1957 )

Mr. Justice Burnett

delivered the opinion of the Court.

The question for determination here is: Do the collateral heirs of a deceased Negro born of slave parents in.a foréign State take real estate left by him in preference to the devisees of his wife 1 The Chancellor and the Court of Appeals held that these collateral heirs did inherit from the child of this slave marriage of a foreign State. The matter has been ably briefed and argued and we now have the question for determination.

Cornelius Walker, a Negro, was born in Mississippi in 1864. At the time of his birth slavery had not been abolished in the State. He was the only child of Jeff and Amanda Walker, who were at all times residents of the State of Mississippi. Jeff Walker had no brothers or sisters. Amanda Walker was born at Statom and had two brothers and two sisters, who claim the property in question.

. Jeff and Amanda Walker lived together as man and wife, and held themselves out as such and were known in the community in which they lived prior to and at the birth of Cornelius Walker, as husband and wife. They so held themselves out until the death of Jeff Walker in 1885 in Mississippi. The mother remarried and died in 1927.

•Cornelius Walker married Millie Bush in Mississippi and later moved to Tennessee where they lived for . a :great number of years prior to Cornelius’ death in 1937, when he was a resident of Shelby County, Tennessee. His wife Millie continued to live in Memphis, Tennessee until her death in 1953. Neither Cornelius nor Millie had any ^children. At the time of the. death of Cornelius he held title to several pieces óf real estate described in the pleadings and it is the title to these parcels of real estate which is the dispute of this law suit. After Cornelius’ death Millie continued to collect the rentals from the property until her death. Millie left a will which is not attacked in this lawsuit in which she willed the property to those.of her choosing. The original bill was filed,to clear up the situation and was filed on the theory that Cornelius Walker, being a Negro born in a slave State before slavery was abolished, was illegitimate, and under the laws of this State that the inheritance from him was governed by our statutes controlling illegitimates, Section 31-105, T.C.A. There is no attack made on the legitimacy of the collateral kin of Cornelius.

The record contains certified copies of Chapter 4, of the Public Acts of Mississippi of 1865, and of Section 22, Article 12, of the Constitution of Mississippi, 1869. Under these Mississippi laws it is plain that Cornelius Walker was legitimated as the child of Jeff and Amanda Walker. Section 8, of the Mississippi Act is:

“Be it further enacted, That all freedmen, free negroes and mulattoes, who do now and have heretofore lived and cohabited together as husband and wife shall be taken and held in law as legally married, and the issue shall be taken and held as legitimate for all purposes.”

By referring to the portion of the Constitution of Mississippi, at the time, it is shown that whether these children were born before or after the Constitution was ratified that they were legitimated. Thus under the Mississippi law Cornelius was legitimated in that State and that was his status when he moved to Tennessee. In Finley v. Brown, 122 Tenn. 316, 123 S.W. 359, 362, 25 L.R.A., N.S., 1285, this Court declared the applicable law here to he applied as follows:

“There is no doubt whatever, under the authorities in this country, that a child who, in a foreign state in which both it and the adoptive father are domiciled, has acquired under the laws of that state the status of child by adoption, must, under the comity of states, receive recognition of its status as child in every other state having substantially similar adoption laws, and must be held capable of succeeding to real property in accordance with the laws of the state where the prop-property lies, if adopted children are capable of inheriting under the local law of the latter state. * * *

“Inheritance is governed by the lex rei sitae; but legitimacy is to be ascertained by the lex domicilii

As was said above the statutes and Constitution of Mississippi legitimized Cornelius Walker. We have a similar statute in this State which was enacted for the purpose of legitimizing the children of slave marriages of those slaves who lived in this State, Section 31-302, T.C.A. The purpose of such statutes is to validate these slave marriages and to render their children capable of inheriting. Carver v. Maxwell, 110 Tenn. 75, 71 S.W. 752. This Court held in that case that such statutes should be liberally construed in order to carry out the beneficent public policy of the State, but those people claiming the benefit of such statutes must bring themselves within the terms of the statute. We have further held in reference to the children of these slave marriages that the laws of the jurisdiction where the children were legitimized follows the person and should be sustained wherever he may go although it is necessary that he yield to the public policy of the State of his adoption as far as inheritance is concerned. Cole v. Taylor, 132 Tenn. 92, 177 S.W. 61. (This is a collateral inhéritance case). In the same volume is the case of Napier v. Church, 132 Tenn. 111, 177 S.W. 56, which is a lineal descendant heirs case. In that case this Court held that for us to recognize the legitimacy of the issue of the slave marriage of the foreign State then the law of that State must be clear and convincing. The Court then went on to (neither the father-nor the. mother were residents of the State of Tennessee nor the heir claiming nor had they ever lived together as husband and wife in this State), hold that the laws of Louisiana attempting to legitimize this slave marriage were very .uncertain and were not clear and convincing. Thus it was that in Napier v. Church, supra, this Court refused to recognize the lineal descendant of Church under a. purported slave marriage of Louisiana.

The question before the Court in Cole v. Taylor, supra, (132 Tenn. 92, 177 S.W. 63) was whether or not, ‘on the grounds of comity between the states ’ ’ the laws of Georgia and Alabama or Mississippi granted “to ex-slaves coming from one or the other of these states a'right of collateral inheritance which the Legislature of our own state has refused to persons born of slave marriages in the state of Tennessee”. The Court herein said that this State had settled the question under our Act herein-before referred to, Sec. 31-302, T.C.A., that we only recognized the children of slave marriage's of this State of direct inheritence from the parents. In doing so this Court in Cole v. Taylor, supra, quoted again and with approval from Shepherd v. Carlin, 99 Tenn. 64, 41 S.W. 340, as follows:

“ ‘We are of opinion that, by the plain terms of this act, the right and power of inheritance is conferred only as to snch property as may descend from parents, and that no right of collateral inheritance is conferred by the act. This was no doubt the intention of the General Assembly, and is the clear meaning of the words of the act, which can admit of no other construction. ’ ’ ’

This Court therein, that is, in Cole v. Taylor, went on then to say that:

“Tennessee has seen proper not to grant the right.of collateral inheritance to such people, had their parents lived together as husband and wife in this state. It cannot be expected that the courts out of mere comity shall grant to citizens coming from other states a right which this state does not grant its own citizens. ’ ’ And further that:

“Their subsequent legitimation, wherever it may have occurred, njust yield to the statute of Tennessee limiting the right of such persons to inherit only from the parent. To hold otherwise would discriminate in favor of nonresidents coming to this state, as against the policy of our own law, and to confer a right upon them not common to natives of the state. ’ ’

Thus we see what the holding of Cole v. Taylor is. This is a case which is principally relied upon by the petitioner herein.

Cole v. Taylor, supra, was handed down in 1915, as was Napier v. Church, supra. Two years later the Court of Civil Appeals in Davidson v. Jennings, 8 Tenn. Civ. App. 355, again held that the right of inheritance did not extend beyond the lineal descendants of parents. This Civil Appeals case was in 1917. The Legislature of 1919, by Chapter 14 of the Public Acts of that year, passed an Act in which it was enacted,

“That the collateral kindred of a deceased negro shall inherit his or her real and personal property in the same manner and to the same extent that the collateral kindred of a deceased white person inherits his or her real and personal property under existing laws. ’ ’

By the Public Acts of 1929, Chapter 133, the Legislature added to the 1914 Act. This amendment though did not affect in any way the provision above quoted and only provided that such property would go to these collaterals if it had not escheated to the State or that no other substantial right had intervened. This Act is carried in the Code at the present time as Section 31-303, T.C.A. and is in the Chapter of the Code under Descent and Distribution. The heading of the chapter is “Persons Of Color,” and sec. 31-303 reads as follows:

‘ ‘ The collateral kindred of a deceased person of color shall inherit his estate, real and personal, as in case of the collateral kindred of a white person, and regardless of the date of the death of such person of color, provided, that the property has not passed to the state by escheat enforced, and, further, that no substantial right of another person in the property has intervened. ’ ’

It is the very earnest contention of the respondents that this Act of 1919 as amended by 1929 and now codified, extended the right of inheritance to collaterals of a deceased Negro and that since it contains no reference whatsoever to the place of birth of deceased Negroes that the rule of comity is applicable under the rationale of the .opinion of Cole v. Taylor, supra, and that this being true the Court must and should recognize that Cornelius Walker is a legitimate for the purpose of recognition of the respondents as his heirs at law. The Chancellor and the Court of Appeals sustained this contention.

This Court in Carver v. Maxwell, supra, held that such an act should be liberally construed in order to carry out the beneficent public policy of the State that such an act does state the public policy of the State. The statute, that is, 1919, 1929 Acts as codified, extends the right of collateral inheritance to the kindred of any deceased person of color or Negro just as under the laws such a right is given to white persons provided that such people, that is, collaterals, are of legitimate descent. In this case there is no question made as to the collater-als of Cornelius Walker being of legitimate descent. Thus it seems to us that the statute is so comprehensive that it includes all Negroes of legitimate birth who are collateral kindred of this deceased Negro. The laws of Mississippi made Cornelius Walker legitimate.

The Court of Appeals in Wallace v. Berry, 6 Tenn. App. 248, held that this 1919 Act, as amended and codified did extend to collateral heirs of the issue of slave marriages of this State. Certiorari was denied by this Court in that case. That same Court speaking through the same Judge in Rhea v. Redus, 7 Tenn. App. 478 (no certiorari applied for) held that this same Act, 1919 Act as amended, etc., did not apply because of the nonresi-dence of the slave parents at the time of the birth. It might'be well to say that neither the Act nor the question •was before the court and that was purely a gratuitous statement on the part of the Court. The statements made by the same Court in Wallace v. Berry, supra, are not applicable here because Cornelius Walker’s parents were born.outside of the State.

That Court in Wallace v. Berry, supra, made certain statements though which were applicable to that case which we think for reasons heretofore and hereinafter expressed are likewise applicable to the facts of the instant case. We therefore adopt certain language used in that case as a correct rule to apply to this case. That. Court said:

. ‘-The Act of 1919 does not limit the right of collateral inheritance to persons who are not the issue of slave marriages. It extends this right to the kind-red of any deceased Negro just as under our laws it is given to the kindred of white persons, provided such kindred are of legitimate descent. Negroes not born in slavery nor the issue of -slave marriages have had the same rights of inheritance as white persons ever since they became citizens. The Act of 1919 is so comprehensive that it includes all negroes of legitimate birth who are collateral kindred of a deceased negro * * *. The Act of 1919 was clearly intended to create an additional right of inheritance conformable to the now prevailing usage of this State, out of a larger consideration of the status of the negro in our citizenship.”

The rationale of the question here determined was, we think, determined by this Court in an able opinion prepared for the Court by the present Chief Justice in the case of Smith v. Mitchell, 185 Tenn. 57, 202 S.W.2d 979, 983. In that case we held that where the putative father, of an illegitimate and mother of such child are married in a foreign State or that if there is an adoption of a child in a foreign State and under the statute of that State the child is legitimated, that thereafter such child inherits from the putative father or adopting' parent according to the laws of descent in Tennessee as if they had been born legitimate in Tennessee. Under the facts of that case the putative father and mother had adult bastard children and went over into the State of Alabama and were there married. This Court properly held that since under the laws of Alabama these children were legitimated that then these legitimated children would inherit under our laws. A bastard under the laws of this State who is legitimized by the laws of another State is recognized and treated as legitimate so far as inheriting property in this State. Why should we make any difference in the issue of slave marriages who are legitimated by the foreign State and another?

When we compare the statutory and constitutional law of the State of Mississippi with that of Tennessee in legitimizing Cornelius Walker we find that these laws are very similar. It seems to us that under the authority of Smith v. Mitchell, supra, that therein we are expressing and have expressed the present public policy of this State to a great extent. This policy of course should be, and is, where possible, to try to make a person legitimate rather than illegitimate. There is no reason to make any distinction between the legitimation of Cornelius Walker by the laws of Mississippi and in making the children in Smith v. Mitchell, legitimate which were made legitimate by their parents being married under the laws of Alabama. There is no distinction in principle that can be made.

In Smith v. Mitchell, supra, this Court again recognized and properly so the statement heretofore quoted from Finley v. Brown, supra. This Court said in Smith v. Mitchell, supra, that:

“In other words, if the child is capable of inheriting in the foreign state, he, being legitimated by marriage of the parents and by force of law, is thereby legitimated in Tennessee, and is capable of inheriting lands lying in this state. But the rights acquired under foreign adoption or legitimation will not be enlarged so as to confer rights of inheritance in this state contrary to our own statute of descent.”

And, we further said in that case that:

“We think they are substantially similar when they effectuate the same result, that is, giving an illegitimate the status of a legitimate child. But the right of a child legitimated in a foreign state to inherit lands in Tennessee is exactly the same as a child legitimated by statutory proceeding in Tennessee, thus giving the laws of a foreign state no extraterritorial force.”

And:

“As to the devolution of property of the adopting or legitimating parent, we adhere to the majority rule that the status of the child will follow him to, and be recognized in, the state where the property is situated, entitling him to inherit it if, and to the extent, that the law of this state allows such child to inherit.”

Thus we must conclude that by the Acts of the General Assembly of 1919 as amended and codified, heretofore cited, and under the authority of Smith v. Mitchell, supra, that the public policy of this State now is to' recognize as legitimate Cornelius Walker. Therefore the result is that his collateral heirs are entitled to inherit as the collaterals of any other Negro''in this State or white person as far as that is concerned. Having reaóhed this conclusion the judgment of the Chancellor and the Court of Appeals must be.affirmed. . ..