Hall v. . Fleming

Hoke, J. Our Statute of Descents, Eevisal, chap..30; Eule 13, provides “That the children of colored parents, born at any time before the first day of January, 1868, of persons living together as man and wife, are hereby declared legitimate children of such parents, or of either one of them, with all the rights of heirs at law and next of kin with respect to the estate or estates of any such parents or either one of them,” etc. There was evidence admitted tending to bring the case of this claimant, Cora Hall, directly witinin the provisions of the statute, and, on the record, we are of opinion that the order of nonsuit should be set aside. True, as contended by defendant, the Court has held in several decisions that, in order to the operation of the statute, the paternity of the *170 child must be shown, and that the living together by the parties as man and wife must have been an exclusive association. Spaugh v. Hartman, 150 N. C., 454; Branch v. Walker, 102 N. C., 35. But these decisions and the statute itself must be interpreted and construed in reference to the terms employed and the facts and conditions presented and which they were intended to regulate and control. We know that, while persons in slavery were allowed to go through the forms of mariage and to live in that association, it was not regarded as a full and perfect marriage, but, under the system, was subject to the paramount rights of ownership; and when a slave who had so'married was sold or removed by his owner to a distant locality, involving a physical separation, the parties were allowed to marry again, and it was usual and customary for them to do so. In holding, therefore, that this association must be exclusive, it was not at all intended that it should be enduring or in strict personal fidelity while it continued. Croom v. Whitehead, post, 306. If it was exclusive during the period covered by the association, a child born during such association would come within the meaning and purpose of the law. We know, further, that not infrequently the slaves of different owners were allowed to enter on these marriages, and when they did so, it was customary for the man to visit and associate with his wife at stated periods, and when this custom was followed, it should properly be considered “a living together as man and wife,” as contemplated by the statute; and, as heretofore stated, there was testimony received tending to show that such a marriage took place between Joshua Fleming, deceased, and a former wife, Judith, mother of Cora Hall; that they lived together as husband and wife, and the claimant was born to them during such association; and if these facts are accepted by the jury, it would establish her right to inherit her portion of her father’s.property. Again, it is the accepted principle that, in questions of pedigree and race ancestry, the declarations of deceased relatives made ante litem moiam may be received in evidence, and that such testimony is not always restricted to the expressed declarations of the parties, either oral or written, but under ctrtain circumstances, may be extended to include treatment and conduct of parties towards each other, where such facts are relevant and tend naturally to establish the relationship as claimed. Ewell v. Ewell, 163 N. C., 233; Rollins v. Wicker, 154 N. C., 559; Walker v. Walker, 151 N. C., 164; Gilliland v. Board of Education, 141 N. C., 482; Moffitt v. Witherspoon, 32 N. C., 185; Jones on Evidence (2d Ed.), sec. 312. Under these decisions, and the principle they uphold, we think the evidence offered should have been received, and, for the errors indicated, the judgment of nonsuit as to Cora Hall must be set aside and her cause referred to the decision of the jury. Reversed.