Opinion
No. 21210
Opinion Filed September 13, 1932. Rehearing Denied November 1, 1932.
(Syllabus.)
1. Bastards. — Right of Issue of Void Marriage to Inherit from Father.
"Where a man and woman attempt to marry and go through all the formal requirements of law, living together as husband and wife, and have issue, said issue will inherit from their father, even though the attempted marriage was void under our law." In re Atkins' Estate, 151 Okla. 294, 3 P.2d 682.
2. Same — Legitimacy of Issue.
"Under the latter part of section 11303, C. O. S. 1921, which provides: '* * *The issue of all marriages null in law, or dissolved, are legitimate,' children born of an absolute void marriage inherit from their father." In re Atkins' Estate, 151 Okla. 294, 3 P.2d 682.
Appeal from District Court, Grady County; Will Linn, Judge.
Action between Morton Jones and another and J.A. Hyndman and another. Judgment for the latter, and the former appeal. Reversed and remanded.
M.S. Robertson and Bailey Hammerly, for plaintiffs in error.
Melton Melton, for defendants in error.
Willis Jones, the father of plaintiffs in error, was a full-blood Choctaw Indian. On July 1, 1910, he was married to Cassie Moore, under a marriage license issued on that day at McAlester, Okla. The marriage ceremony was performed by W.A. Treadwell, a Baptist minister. The certificate of marriage is of record. The plaintiffs in error, Morton Jones and Wilbur Jones, are children born of said marriage. Cassie Moore, their mother, was enrolled as a Choctaw freedwoman, and it is agreed that her father was a Chickasaw Indian and her mother was a negro. The land involved is the allotment of Willis Jones.
The trial court found that Willis Jones was, prior to 1900, lawfully married to Susan Baker, and that subsequent to said marriage and before the death of Susan Baker, there was born to said union one child now living, and known as Lena Moonehan, nee Baker.
It was held that upon the death of Willis Jones, Lena Moonehan inherited the whole of the land allotted to Willis Jones, to the exclusion of plaintiffs in error, for the reason that said Willis Jones and Cassie Moore were incapable of entering into the marriage relation under the laws of the state of Oklahoma, and that the children born of the attempted marriage, being persons of African descent, could not inherit from Willis Jones, their father. Title was quieted in J.A. Hyndman, as the grantee of Lena Moonehan, nee Baker.
From these findings and decree, Morton Jones and Wilbur Jones appeal.
The principal question presented is identical with the question decided in Re Adkins' Estate — Atkins et al. v. Rust, Adm'r, et al. — 151 Okla. 294, 3 P.2d 862. The writer hereof did not concur in the opinion in Atkins et al. v. Rust, supra, and has not receded from the views expressed in his dissenting opinion in that case, but we regard the opinion in that case as controlling in the instant case. A review of the authorities is unnecessary.
Under the rule announced in the majority opinion in Atkins et al. v. Rust, supra, the judgment and decree must be reversed and the cause remanded, with directions to, enter judgment for plaintiffs in error for a one-third interest of each in said lands.
LESTER, C. J., and HEFNER, CULLISON, SWINDALL, ANDREWS and KORNEGAY, JJ., concur. CLARK, V. C. J., and McNEILL, J., absent.
Note. — See under (1) L. R. A. 1916E, 659; 24 A. L. R. 586; 3 R. C. L. 776; R. C. L. Perm. Supp. p. 892. (2) annotation in 1 L. R. A. (N. S.) 774; 3 R. C. L, 728; R. C. L. Perm. Supp. p. 879; R. C. L. Pocket Part, title "Bastards," § 3.