Fitchett v. Smith's Adm'r

Citations

• 78 Va. 524
• 1884 Va. LEXIS 27

Syllabus

<p>Marriage-Colored persons-Cohabitations-Legitimacy-Case at bar.&emdash;L. and S, colored persons, were never married, but cohabited together as man and wife previous to November, 1863, when S enlisted in the U. S. army. The result of the cohabitation was a child-I. S died in 1865, but before his death recognized the child en ventre sa mere, as, his, and declared his intention to marry L, who died a few years after the birth of the child, the latter subsequently dying unmarried and childless. To this child, before its death, the U. S. government paid $1,200 for her father’s services. After her death I’s maternal next of kin claimed that she was illegitimate and that they were entitled to her whole estate, which claim was contested by her paternal next of kin, who insisted on the division of the estate into moieties, one of which should be distributed among them.</p> <p>Held :</p> <p>The act of 27th February, 1866 (Code 1873, chapter 104, section 13J, being retrospective, legitimated the child I, though her parents had ceased to cohabit as man and wife before its passage, and I’s estate must be divided into two moieties-one for the maternal, the other for the paternal next of kin.</p>