The Surrogate.
questions to be determined in these proceedings, are, whether the alleged marriage of Anthony Jones and Patsy Minor, was such a marriage as should be recognized as valid and binding by the laws of the State of New York, so that Patsy Minor shall be entitled to a share of her husband’s estate, as the widow; and whether Anthony Smith is legitimate, so that he is entitled to receive the residue of his father’s estate, as next of kin, under the laws of this state.
It is admitted substantially by the respective coun sel, that under the statute of Virginia, at the time when the alleged marriage of Anthony Jones and Patsy Minor took place, and they cohabitedtogether, their union [292]*292was not such a marriage as was recognized to be lawfully the statute of Virginia: hence, particular reference to these laws is not necessary for the purposes of this proceeding.
The new constitution of Virginia (Art. 11, p 100, of the Code of 1873), reads as follows: “ The children of parents, one or both of whom were slaves at, and during the period of cohabitation, who were recognized by the father as his children, and the mother was recognized by such father as his wife, and was cohabited with as such, shall be as capable of inheriting any estate whereof such father may have died seized, or possessed, as though he had been born in lawful wedlock.”
The Oode also provides, at page 841, section 4, that “ when colored persons before the passage of this Act shall have undertaken and agreed, to occupy the relation of husband and wife, shall be cohabiting together as such at the time of its passage, whether the rite of marriage shall have been solemnized between them, or not, they shall be deemed husband and wife, and be entitled to the rights and privileges, and subject to the duties and obligations, of that relation as if duly married by law,” &c., “ and all their children shall be deemed legitimate whether born before, or after the passage of this Act; 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.”
The validity of a marriage is to be determined by the lex loci contractus. (2 Kent’s Com., 12 Ed., 91-2, notes; Smith v. Woodworth, 44 Barb., 198; Medway v. Needham, 16 Mass., 157; Putnam v. Putnam, 8 Pick., 433; West Cambridge v. Lexington, Id., 506; 512, Caujolle v. Ferrie, 23 N Y., 139.) But the law of domicile of the deceased [293]*293governs the distribution of personal property. (2 Kent’s Com., 12 Ed.) 426, 431, note B.; Pub. Adm'r. v. Hughes, 1 Bradf., 125; Bloomer v. Bloomer, 2 Id., 339 ; Hegeman v. Fog, 1 Redfleld, 299.)
By chapter 44 of the laws of 1809, section 2, it is provided “ that all marriages contracted, or which may hereafter be contracted, wherein one or more parties was, were, or" may be slaves, shall be considered equally valid as though the parties thereto were free, and the child or children of any such marriage shall be deemed legitimate.”
By this act, slaves in this state, or persons who may have been such, seem to be placed on the same footing as other citizens, in respect to the validity of their marriage ; and hence, what would constitute a marriage between white citizens of this state, would constitute a marriage between those who are, or may have been, slaves.
The agreement of Anthony Jones, and the female now called Patsy Minor, to live together, as man and wife (certainly with the consent of their masters) and the continued cohabitation, as such, would constitute a marriage under the laws of this state, if they had been at the time, residents of the state of ¡New York.
The law is well settled that no particular form or ceremony is required by the laws of this state to constitute a valid marriage; but marriage is deemed a civil contract to which the consent, of the parties is deemed essential (Clayton v. Wardell, 4 N. Y., 230,) and such marriage may be inferred by recognition, matrimonial cohabitation, &c. (Matter of Taylor, 9 Paige, 611; Brinkley v. Brinkley, 45 Id., 184.) In the case ürst above cited, it is held that all that is essential to the validity of marriage, is a present agreement between competent parties, to take each other for husband, and wife.
[294]*294It is urged by counsel for the claimants, Patsy Minor and Anthony Smith, that the proclamation of emancipation relieved the parties of all disability' under the laws of Virginia, and. that thereby their marriage was validated/
It cannot be successfully denied that the effect of the proclamation was to relieve all the slaves from the disabilities attendant upon their servitude, and that they became at liberty thereafter to contract marriage in the same manner as white citizens :—but it.is a serious ques-ion whether by force of the proclamation the relations of the parties not recognized by the laws of Virginia as a marriage, could be made to constitute a lawful marriage as to the law of that state; and if not lawful as to the law of that state, it is also a seiious question whether the rule that the validity of contracts must depend upon the place where they arQ made, is to be relaxed as to marriage contracts.
Story (Conflict of Laws,) in treating upon the subject of marriage, says, at section 108, u marriage is treated by all civilized nations as a peculiarly formed contract—it is in its origin a contract of natural law—in civil society it became a civil contract, regulated and prescribed by law, and endowed with civil consequences;” and in section 109, he says, u but it will be observed that marriage is a contract sui generis, differing in some respects from all other contracts—but it differs from other contracts in this, that, the rights and obligations, or duties arising from it are not left entirely to be regulated by the agreement of parties, but are to a certain extent matters of municipal regulation.” “ Marriage is a contract sui generis and the rights, duties, and obligations, which arise out of it are matters of so much importance to the well being of the state that they are regulated, not by private contract, but by public law of the state, [295]*295which is imperative on all who are domiciled within its territories;” and at section 112, the author says,: “ In short, a marriage which is contracted according to the lex loci, will be valid all the world over.”
“ In expounding or enforcing a contract entered into? in a foreign country, and executed according to the laws of that country, regard will be paid to the lex loci, and the contract is evidence that the parties had in view the law of the country, and meant to be bound by it, but the parties who are domiciled here cannot be permitted to import into this country the law peculiar to his own case, which is in opposition to those great and important public laws, which our legislature has held to be essentially connected with the best interests of society.”
This quotation it accredited to a learned Scotch judge, but commended by Chief Justice Story.
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The Surrogate.
questions to be determined in these proceedings, are, whether the alleged marriage of Anthony Jones and Patsy Minor, was such a marriage as should be recognized as valid and binding by the laws of the State of New York, so that Patsy Minor shall be entitled to a share of her husband’s estate, as the widow; and whether Anthony Smith is legitimate, so that he is entitled to receive the residue of his father’s estate, as next of kin, under the laws of this state.
It is admitted substantially by the respective coun sel, that under the statute of Virginia, at the time when the alleged marriage of Anthony Jones and Patsy Minor took place, and they cohabitedtogether, their union [292]*292was not such a marriage as was recognized to be lawfully the statute of Virginia: hence, particular reference to these laws is not necessary for the purposes of this proceeding.
The new constitution of Virginia (Art. 11, p 100, of the Code of 1873), reads as follows: “ The children of parents, one or both of whom were slaves at, and during the period of cohabitation, who were recognized by the father as his children, and the mother was recognized by such father as his wife, and was cohabited with as such, shall be as capable of inheriting any estate whereof such father may have died seized, or possessed, as though he had been born in lawful wedlock.”
The Oode also provides, at page 841, section 4, that “ when colored persons before the passage of this Act shall have undertaken and agreed, to occupy the relation of husband and wife, shall be cohabiting together as such at the time of its passage, whether the rite of marriage shall have been solemnized between them, or not, they shall be deemed husband and wife, and be entitled to the rights and privileges, and subject to the duties and obligations, of that relation as if duly married by law,” &c., “ and all their children shall be deemed legitimate whether born before, or after the passage of this Act; 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.”
The validity of a marriage is to be determined by the lex loci contractus. (2 Kent’s Com., 12 Ed., 91-2, notes; Smith v. Woodworth, 44 Barb., 198; Medway v. Needham, 16 Mass., 157; Putnam v. Putnam, 8 Pick., 433; West Cambridge v. Lexington, Id., 506; 512, Caujolle v. Ferrie, 23 N Y., 139.) But the law of domicile of the deceased [293]*293governs the distribution of personal property. (2 Kent’s Com., 12 Ed.) 426, 431, note B.; Pub. Adm'r. v. Hughes, 1 Bradf., 125; Bloomer v. Bloomer, 2 Id., 339 ; Hegeman v. Fog, 1 Redfleld, 299.)
By chapter 44 of the laws of 1809, section 2, it is provided “ that all marriages contracted, or which may hereafter be contracted, wherein one or more parties was, were, or" may be slaves, shall be considered equally valid as though the parties thereto were free, and the child or children of any such marriage shall be deemed legitimate.”
By this act, slaves in this state, or persons who may have been such, seem to be placed on the same footing as other citizens, in respect to the validity of their marriage ; and hence, what would constitute a marriage between white citizens of this state, would constitute a marriage between those who are, or may have been, slaves.
The agreement of Anthony Jones, and the female now called Patsy Minor, to live together, as man and wife (certainly with the consent of their masters) and the continued cohabitation, as such, would constitute a marriage under the laws of this state, if they had been at the time, residents of the state of ¡New York.
The law is well settled that no particular form or ceremony is required by the laws of this state to constitute a valid marriage; but marriage is deemed a civil contract to which the consent, of the parties is deemed essential (Clayton v. Wardell, 4 N. Y., 230,) and such marriage may be inferred by recognition, matrimonial cohabitation, &c. (Matter of Taylor, 9 Paige, 611; Brinkley v. Brinkley, 45 Id., 184.) In the case ürst above cited, it is held that all that is essential to the validity of marriage, is a present agreement between competent parties, to take each other for husband, and wife.
[294]*294It is urged by counsel for the claimants, Patsy Minor and Anthony Smith, that the proclamation of emancipation relieved the parties of all disability' under the laws of Virginia, and. that thereby their marriage was validated/
It cannot be successfully denied that the effect of the proclamation was to relieve all the slaves from the disabilities attendant upon their servitude, and that they became at liberty thereafter to contract marriage in the same manner as white citizens :—but it.is a serious ques-ion whether by force of the proclamation the relations of the parties not recognized by the laws of Virginia as a marriage, could be made to constitute a lawful marriage as to the law of that state; and if not lawful as to the law of that state, it is also a seiious question whether the rule that the validity of contracts must depend upon the place where they arQ made, is to be relaxed as to marriage contracts.
Story (Conflict of Laws,) in treating upon the subject of marriage, says, at section 108, u marriage is treated by all civilized nations as a peculiarly formed contract—it is in its origin a contract of natural law—in civil society it became a civil contract, regulated and prescribed by law, and endowed with civil consequences;” and in section 109, he says, u but it will be observed that marriage is a contract sui generis, differing in some respects from all other contracts—but it differs from other contracts in this, that, the rights and obligations, or duties arising from it are not left entirely to be regulated by the agreement of parties, but are to a certain extent matters of municipal regulation.” “ Marriage is a contract sui generis and the rights, duties, and obligations, which arise out of it are matters of so much importance to the well being of the state that they are regulated, not by private contract, but by public law of the state, [295]*295which is imperative on all who are domiciled within its territories;” and at section 112, the author says,: “ In short, a marriage which is contracted according to the lex loci, will be valid all the world over.”
“ In expounding or enforcing a contract entered into? in a foreign country, and executed according to the laws of that country, regard will be paid to the lex loci, and the contract is evidence that the parties had in view the law of the country, and meant to be bound by it, but the parties who are domiciled here cannot be permitted to import into this country the law peculiar to his own case, which is in opposition to those great and important public laws, which our legislature has held to be essentially connected with the best interests of society.”
This quotation it accredited to a learned Scotch judge, but commended by Chief Justice Story. The general principle certainly is, that between persons sui juris, marriage is to be decided by the law of the place where it is celebrated. If valid there, i t is valid everywhere. It has a legal ubiquity of obligation. If invalid there, it is equally invalid everywhere. And the only exceptions to this rule, are stated to be polygamy and incest, as repugnant to good morals, and prohibited by Christianity.
In Kelly v. McCarthy (3 Bradf., 7), it is held that the weight of authority is in favor of the supremacy of the lex loci domicilii, over the lex loci contractus after the husbacd and wife have removed to another state, as to property subsequently acquired.
In Jackson v. Lervey (5 Cow., 397), it is held that the Act of 1809, above cited, was retrospective, and legalized all marriages and births of slaves before, as Avell as after, its passage; but of course the act could have no effect upon a marriage relation contracted or subsisting in another state; for the act itself, in its first section, [296]*296makes provision for persons born slaves within this state. Story, at section 96, says that it has been solemnly decided that the Law of England abhors, and will not endure the existence of slavery within that nation, and that consequently, as soon as a slave lands in England, he becomes ipso facto, a free man, discharged from a state of servitude.
Independent of the provisions of the constitution of the United States, for the protection of the rights of masters, in regard to domestic fugitive slaves, there is no doubt that the same principle pervades the common law of the non-slave holding states of America, that is to say, foreign slaves would no longer be deemed such, after their removal thither.
It is clear that slavery and its attendant incapacities are opposed to the public policy of this state, as shown by the act of 1809, and the Be vised Statutes, Title 7, Chap. 20, Part 1st, as amended by Chapter 247, of the Law o/1841, (Lemmon v. The People, 20 N. Y., 562.)
If, as has been repeatedly held, polygamous marriages, though valid in a sister state, will not be recog'nized in this state, by force of the comity existing between the several states, is it not equally logical that this state by reason of the comity existing between such states, will not be compelled to hold that the relation which existed in the state of Virginia, which was recognized by public sentiment, as a marriage, and would conform to our laws respecting the contract of marriage, is no marriage ?
Is not the one case equally repugnant as the other, to the principles of freedom, justice, and good morals, recognized in this state ?
In Girod v. Lewis, (6 Martin, La. Rep.) it was held that the marriage of slaves was void as to any civil effect resulting from such contract, because slaves had no legal [297]*297capacity to assent to any contract. With the consent of their masters they might marry, and their moral power to agree to such contract or connection as that if marriage, cannot be doubted; but whilst in a state of slavery such relation could not produce any civil effect, because slaves were deprived of all civil right. But it was further held that manumission gave to a slave his civil rights, and made the contract of marriage legal and valid by consent of the master and the moral assent of slave from the moment of freedom, although dormant during slavery; and produces all the effects which result from such contract among free persons.
If manumission by the master could produce all the effects which result from a legal contract of marriage between free persons, may it not be well contended that the emancipation of the slave by the sovereign power of the nation, legalized the state of marriage existing in a state of slavery ?
Indeed it would be a reproach to the free and liberal spirit of our state constitution and laws, to hold that the emancipation of the slave intended to usher in a new and juster era, was powerless to effect the free and salutary result produced by individual manumission, in a state where servitude prevailed according to law and public sentiment.
In Corbett v. Poelnitz (1 Term R., 8), Lord Mansfield uses this language: “ But then it has been properly said that times alter, and new customs and new manners arise: these occasion exceptions, and j ustice and convenience require a different application of those exceptions-within the principles of the general rule.”
The danger resulting from an effort on the part of an individual judge to conform the institutions and laws to his understanding of the improved spirit of the age, is fully appreciated. And the idea that the dictates of [298]*298individual conscience may excuse disobedience of laws and constitution, should be repudiated, as hostile to every well-settled principle of justice and safety; but in the construction of law and constitution, I think it is the duty of a judicial officer to respect the advanced public sentiment of the present, when the public sentiment has assumed shape and consistency by a change of the constitution and laws of the land, and that in determining the force and effect of the relations existing under the constitution and laws, which recognized slavery, when the question has to be determined under a condij tian of things where servitude is repudiated, there should be an effort in good faith to give effect to such well defined change of public sentiment.
Applying these principles to this case, I am of the opinion that Patsy Minor is the lawful widow of Anthony Jones, deceased, and entitled under our law to one-third of the personal estate of her deceased íiusband and a dower interest in the realty ; that her subsequent marriage to Minor, did not, and could not, affect the marriage relation between her and the intestate, especially’ as it appears that her marriage with Minor, was eight or nine years after the escape of the deceased, when- she. supposed him to be dead.
By the same reasoning, Anthony Smith is the lawful son and heir of the deceased; but he is more particularly so under the laws of Virginia, of 1865, which provide that wherever negroes have cohabited as man and wife, and shall have ceased to cohabit before the passage of that act, for any cause, all the children of the woman, recognized by the man to be his, shall be deemed legitimate.
This recognition was evidenced by the deceased’s letter to his wife, making inquiry in respect to the child; and it is quite clear, that if the deceased had died an [299]*299inhabitant of the state of Virginia, Anthony Smith would have been recognized as his legitimate child, and entitled to succeed to his father’s estate; and if, by the laws of Virginia, he would be so recognized, it cannot be doubted that the courts of this state, under the circumstances detailed, should so recognize him.
The fact that these principles are invoked, not to divest any property or rights already vested, or acquired, but simply to confer such rights upon those who are entitled by the laws of nature, and common justice, should not be overlooked; and no technicality should be interposed for the purpose of bestowing the property in question upon the people of this state, rather than upon those who seem by every consideration of justice to be entitled to it.
As the result of the above conclusions, Isaac Smith, and Elizabeth Keaton, alleged surviving brother and sister of the deceased, are not the next of kin, and not entitled to any of the estate of the intestate.
Decree accordingly.