Summary
recognizing interracial marriage for purposes of estate case
Summary of this case from Czekala-Chatham v. State ex rel. HoodOpinion
No. 36709.
June 14, 1948.
1. MARRIAGE.
A marriage between a Negro and a white person, being valid in Illinois where contracted, must be recognized and given effect as such in Mississippi unless to do so violates the statutes or Constitution of Mississippi or the state's public policy as declared therein Const. 1890, Sec. 263; Code 1942, Sec. 459).
2. MARRAIGE.
The purpose of statute prohibiting marriage between a white person and a Negro is to prevent persons of Negro and white blood from living together in Mississippi as husband and wife. (Code 1942, Sec. 459; Const. 1890, Sec. 263).
3. MARRIAGE.
A marriage between a Negro and a white person, valid in Illinois where contracted and who did not reside in Mississippi as husband and wife, would be recognized in Mississippi to the extent of permitting the husband to inherit intestate property from the wife located in Mississippi (Code 1942, sec. 459; Const. 1890, sec. 263).
APPEAL from the Chancery Court of Hinds County.
Jackson, Young, Daniel Mitchell, of Jackson, for appellant.
Since appellant and Pearl Mitchell Miller, deceased, were duly, legally, and ceremonially married, according to the law of the state of their residence and citizenship, appellant is an heir at law (and the sole direct heir), and entitled to inherit her property in Mississippi.
Alabama V.R. Co. v. Beardsley, 79 Miss. 417, 30 So. 660, 89 Am. St. Rep. 660; Howard v. Kelly, 111 Miss. 285, 71 So. 391; McAllum v. Spinks, 129 Miss. 237, 91 So. 694; Sullivan v. Grand Lodge Knights of Pythias, 97 Miss. 218, 52 So. 360; Walker et al. v. Matthews et al., 191 Miss. 489, 3 So.2d 820; Irwin et al. v. Peals et al., 203 Miss. 44, 33 So.2d 298; Skiriotes v. Florida, 313 U.S. 69, 61 S.Ct. 924, 85 L.Ed. 1193; Allen v. Scruggs et al., 190 Ala. 654, 67 So. 301; Caballero v. Executor, 24 La. Ann. 573; Dees et al. v. Metz et al. (Ala.), 17 So.2d 137; Estate of Stull, 183 P. 625, 63 Am. St. Rep. 776, 39 L.R.A. 539; Gibbs v. Illinois Cent. R. Co., 169 La. 450, 125 So. 445; Loughran v. Loughran, 202 U.S. 216, 54 S.Ct. 684, 78 L.Ed. 1219; Connerly v. Union Sewer Pipe Co, 184 U.S. 540, 22 S.Ct. 431, 46 L.Ed. 679; Medway v Needham, 16 Mass. 157; National Bank L. Co. v. Petrie, 189 U.S. 423, 23 S.Ct. 512, 47 L.Ed. 879; Pearson v. Pearson, 51 Cal. 120; State v. Ross, 76 N.C. 242; Stevens v. United States, 146 F.2d 927; United States ex rel. Modianos v. Tuttle, 12 F.2d 927; Vital v. Vital (Mass.), 65 N.E.2d 205; Whittington v. McCaskill, 65 Fla. 162, 61 So. 236; Code of 1942, Sec. 459; Constitution of 1890, Sec. 263; Amis on Divorce and Separation in Mississippi, p. 25; 35 Am. Jur. 303, 304, Sec. 192; 38 C.J. 1276, Sec. 3, p. 1290, 1291, Sec. 28.
The probate proceedings of the probate court of Cook County, Illinois, wherein the appellant is adjucated as the husband and heir of Pearl Mitchell, deceased, are entitled to full faith and credit in the court of Mississippi, under Article IV, Section 1, Constitution of the United States.
Adams v. Saenger, 303 U.S. 59, 58 S.Ct. 454, 82 L.Ed. 549; Barber v. Barber, 323 U.S. 77, 65 S.Ct. 137, 89 L.Ed. 82, 157 A.L.R. 163; Broderick v. Rosner, 294 U.S. 629, 55 S.Ct. 587, 79 L.Ed. 1100, 100 A.L.R. 1133; Fauntleroy v. Lum, 210 U.S. 230, 28 S.Ct. 641, 52 L.Ed. 1039; Loughran v. Loughran, supra; Magnolia Petroleum Co. v. Hunt, 320 U.S. 430, 64 S.Ct. 208, 89 L.Ed. 149; Williams v. North Carolina, 317 U.S. 287, 63 S.Ct. 207, 87 L.Ed. 279, 143 A.L.R. 1273; Constitution of the United States, Art. IV, Sec. 1; 31 Am. Jur. 173, Sec. 572; 50 C.J.S. 515, 516, Sec. 898.
The will of Pear Mitchell Miller, deceased, does not prohibit the appellant from inheriting the property to which the testatrix died intestate, under the law of descent and distribution in Mississippi.
Adams v. Farley et al. (Miss.), 18 So. 390; Ball v. Phelan et al., 94 Miss. 293, 49 So. 956 Darrow et al. v. Moore et al., 163 Miss. 705, 142 So. 447; Rose et al. v. Rambo, 120 Miss. 305, 82 So. 149; Eaton v. Broaderick, 101 Miss. 26, 57 So. 298; Lemon v. Rogge (Miss.), 11 So. 470; Marx v. Hale, 131 Miss. 290, 95 So. 441; Wall et al. v. Dickens et al., 66 Miss. 655, 6 So. 515; Springs v. Springs, 182 N.C. 484, 109 S.E. 839; Ames et al. v. Holmes et al., 190 Ill. 561, 60 N.E. 858; Coffman v. Coffman, 85 Va. 459, 8 S.E. 672; Dean v. Gaskin, Cowp. 357; Ford v. Whedbee, 21 N.C. 16; Hancock's Appeal, 112 Pa. 532, 5 A. 56; Hardin Ex's v. Hardin, 170 Ky. 736, 186 S.W. 893; Hitchcock v. Hitchcock, 35 Pa. 393; Hurst et al. v. Von De Veld et al., 158 Mo. 239, 58 S.W. 1056; In re Gorgas Estate, 166 Pa. 269, 31 A. 86; In re Trumble's Will, 199 N.Y. 454, 92 N.E. 1073; Lawrence v. Smith, 163 Ill. 419, 45 N.E. 259; McQueen et al. v. Lilly et al., 130 Mo. 9, 31 S.W. 1043; Page v. Coward et al., 79 N.J. Eq. 124, 81 A. 841; Parsons v. Miller et al., 189 Ill. 107, 59 N.E. 696; Southgate et al. v. Karp et al., 154 Mich. 697, 118 N.W. 600; Tea et al v. Miller et al., 257 Ill. 624, 101 N.E. 209, 45 L.R.A. (N.S) 1163; Thomas v Thomas, 108 Ind. 576, 9 N.E. 457; Ward v. Dodd. 41 N.J. Eq. 414, 5 A. 650; Code of 1942, Sec. 667; 69 C.J 1070, Sec. 2304, pp. 1132, 1133, Secs. 78, 79; 2 Page on Wills (Lifetime Ed.), Sec. 929; Thompson on Wills (2 Ed.), Sec. 222.
The opinion and decree of the court, in which the laws and statutes of the State of Mississippi are construed, in and of themselves deny to the appellant due process of law, equal protection of the laws, and his priviliges and immunities as a citizen of a different state, all as guaranteed to him by Sections 1 and 2, Article IV, of the Constitution of the United States, and the Fourteenth Amendment thereto.
Buchanan v. Warley, 245 U.S. 60, 38 S.Ct. 16, 62 U.F.C. 59; Missouri ex rel. Gaines v. Canada, 305 U.S. 337, 59 S.Ct. 232, 83 L.Ed. 208; Oyama v. California, 92 L.Ed. 257; Sipuel v. Board of Regents, 92 L.Ed. 356; Strauder v. West Virginia, 100 U.S. 303, 25 L.Ed. 664; Yick Wo. v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220; Code of 1942, Sec. 470.
There is no evidence to sustain the findings of the learned chancellor of Chancery Court of the First Judicial District of Hinds County, Mississippi, and his opinion and decree are, therefore, contrary to the law and the evidence, against the overwhelming weight of the credible evidence in this case and manifestly wrong.
Gerard v. Gill et ux., 195 Miss. 726, 15 So.2d 478; Gillis et al. v. Smith et al, 114 Miss. 665, 75 So. 451; Tarver v. Lindsey, 161 Miss. 379, 137 So. 93; Teague v. Brown, 199 Miss. 262, 24 So.2d 726; National Bank L. Co. v. Petrie, supra; Loughran v. Loughran, supra; Connolly v. Union Sewer Pipe Co., supra; Code of 1942, Sec. 459; 3 Am. Jur. 463, 464, Sec. 899, p. 471, Sec. 902. Creekmore Creekmore and Howie, Howie McGowan, all of Jackson, for appellee.
In Mississippi marriages between whites and negroes are considered unnatural, and so odius as to offend a deep rooted sense of morality predominate in the state; and being abhorrent to the morals and customs of its society, such marriages are declared to be contrary to the public policy of the state and absolutely void.
Code of 1942, Secs. 459, 2019, 2234, 2339; Constitution of 1890, Sec. 263.
Such effect as may be given by Mississippi to a foreign marriage, valid where celebrated, is merely by reason of comity; and it is not bound by comity to give any effect, in its courts, to such marriage, if it be offensive to the morals and customs of its society, and is contrary to its established public policy.
Walker v. Matthews, 191 Miss. 489, 3 So.2d 820; Osoniach v. Watkins, 235 Ala. 564, 180 So. 577, 117 A.L.R. 179; Toler v. Oakwood Smokeless Coal Corporation, 173 Va. 425, 44 S.E.2d 364, 127 A.L.R. 430; Succession of Gabisso (La.), 44 So. 438, 11 L.R.A. (N.S.) 1082; Case notes in 26 L.R.A. (N.S.) 179, 57 L.R.A. 155, 17 L.R.A. (N.S.) 800, 117 L.R.A. 186, 127 L.R.A. 437; 35 Am. Jur., Marriage, Secs. 146, 167, 172, 181; A.L.I. Restatement, Conflict of Laws, Sec. 134, Comments a, b, c; 19 Am. Eng. Law (2 Ed.), pp. 1211, 1212.
The authorities are in conflict as to what effect will be given to a miscegenous marriage which is valid where celebrated, but which is prohibited or declared to be void by the law of the forum.
State v. Shattuck, 69 Vt. 403, 60 Am. St. Rep. 936; Hills v. Nebraska, 61 Neb. 589, 57 L.R.A. 161; Succession of Gabisso, supra; Washington v. Fenn, 47 Wn. 561, 92 P. 417, 17 L.R.A. (N.S.) 800; Johnson v. Johnson (Wash), 106 P. 500, 27 L.R.A. (N.S.) 179; Toler v. Oakwood Smokeless Coal Corporation, supra; 35 Am. Jur., 294, Sec. 181.
The southern courts generally refuse to give effect to such miscegenous marriages.
Dupre v. Boulard, 10 La. Ann. 411; State v. Bell, 7 Baxt. (Tenn.) 9, 32 Am. Rep. 549; Pennegar v. State, 87 Tenn. 244, 10 S.W. 305, 2 L.R.A. 703; State v. Tutty, 41 F. 753, 7 L.R.A. 50; Kinney v. Commonwealth, 71 Va. 858, 32 Am. Rep. 690; Jackson v. Jackson, 82 Md. 17, 33 A. 317, 34 L.R.A. 773; Eggers v. Olson, 104 Okla. 297, 231 P. 483; Takahaski's Estate (Mont.), 129 P.2d 217.
It is elementary that the full faith and credit clause of the Federal Constitution applies to the records and proceedings of courts only insofar as those courts have jurisdiction, both of the subject matter and of the parties. Such jurisdictional matters must affirmatively appear of record, and if jurisdiction be lacking then the judgment is not entitled to credit. Since the subject matter of this litigation is land located in the State of Mississippi, no judgment of the probate court of Cook County, Illinois, could in any wise affect the descent of that property. It is purely a question of local law and is to be determined by the statutes and laws of the State of Mississippi.
McCrory v. Donald, 119 Miss. 256, 80 So. 643; Woodville v. Pizzati, 119 Miss. 442, 81 So. 127; Buckingham Hotel Co. v. Kimberly, 138 Miss. 445, 103 So. 213; Steele v. Steele, 152 Miss. 365, 118 So. 721; Hopkins v. Hopkins, 174 Miss. 643, 165 So. 414; McAdams v. McFerron, 180 Miss. 644, 178 So. 333; Griffin v. Griffin, 327 U.S. 220, 90 L.Ed. 635; Williams v. North Carolina, 325 U.S. 226, 89 L.Ed. 1577; Miliken v. Myer, 311 U.S. 457, 85 L Ed. 278; Spokane Railway Co. v. Whitley, 237 U.S. 487, 59 L.Ed. 1062; Old Wayne Mutual Ins. Co. v. McConough, 204 U.S. 8, 51 L.Ed. 545; Clarke v. Clarke, 178 U.S. 186, 44 L.Ed. 1028; A.L.I. Restatement, Conflict of laws, Sec. 470, Mississippi annotations.
The Mississippi Constitution and statutes which prohibit miscegenous marriages and declare them void are not violative of the due process, equal protection and privileges and immunities clauses of the Federal Constitution.
Pace v. Alabama, 106 U.S. 583, 27 L.Ed. 207; Georgia v. Tutty, 41 F. 753; Green v. State, 58 Ala. 190; Dodson v. State, 61 Ark. 57, 31 S.W. 977; Kirby v. Kirby, 24 Ariz. 9, 206 P. 405; State v. Gibson, 36 Ind. 389, 10 Am. Rep. 42; State v. Jackson, 80 Mo. 175, 50 Am. Rep. 499; Scott v State, 39 Ga. 321; State v. Harrison, 63 N.C. 451; Re Atkins, 151 Okla. 294, 3 P.2d 682; State v. Bailey, 11 Ohio L.J. 151; Re Paquet, 101 Or. 393, 200 P. 911; Frazier v. State, 3 Tex. App. 263[ 3 Tex.Crim. 263], 30 Am. Rep. 131; Kinney v. Commonwealth, 30 Gratt. (Va.) 858, 32 Am. Rep. 690; Keen v. Keen, 184 Mo. 358, 83 S.W. 526, 201 U.S. 319, 50 L.Ed. 772; Annotations in 2 L.R.A. (N.S.) 532, 52 L.R.A. (N.S.) 778.
Argued orally by Joe H. Daniel, for appellant, and by Rufus Creekmore, for appellee.
The appellees filed a petition in the court below seeking to be declared sole heirs at law of of Pearl Mitchell Miller, a Negro woman who died in Chicago, Illinois, intestate as to property owned by her in Mississippi described in the petition. Pearl Mitchell Miller left no heirs at law other than the appellees, except her husband, Alex D. Miller, a white man, to whom she was legally married in the State of Illinois. Alex Miller appeared and by an answer and cross-bill asserted that he was the sole heir at law of Pearl Mitchell Miller, and that the appellees or some of them have been in possession of the property receiving and appropriating rents therefrom, and prayed that he be declared the sole heir at law of Pearl Mitchell Miller and for an accounting from the appellees for the rents received by them from the property. The final decree granted the prayer of the appellees and dismissed the cross-bill of the appellant.
It appears from the record that Pearl Mitchell and Alex D. Miller were citizens of the State of Mississippi in and prior to November, 1923, when they were indicted in the Circuit Court of the First Judicial District of Hinds County for unlawful cohabitation, but that the case was nol prossed by the District Attorney on the agreement of Pearl to leave the state, which she did, moving to Chicago, Illinois, in December, 1923, as did Alex Miller in January, 1924, where they lived continuously until Pearl's death in September, 1945, and where Alex Miller still lives. In July, 1939, after they had become citizens of the State of Illinois and owed no allegiance to the State of Mississippi, they were legally married in Chicago, according to the law of Illinois, and thereafter lived together as husband and wife. No children were born of this marriage.
Section 263 of our State Constitution provides that "the marriage of a white person with a negro or mulatto, or person who shall have one-eighth or more of negro blood, shall be unlawful and void."
Section 459, Code of 1942, provides that "the marriage of a white person and a negro or mulatto or person who shall have one-eighth or more of negro blood . . . shall be unlawful, and such marriage shall be unlawful and void; and any party thereto, on conviction, shall be punished as for marriage within the degrees prohibited by the last two sections; and any attempt to evade this and the two preceding sections by marrying out of this state and returning to it shall be within them."
These sections of the Constitution and Statute, of course, have no extra-territorial effect and this marriage being valid in Illinois, where contracted, must be recognized and given effect as such unless so to do violates this statute or the state's public policy as declared therein. Neither of the parties to this marriage returned to Mississippi after they left the State, and there is nothing in the record indicating that they had any intention of so doing, so that no violation of the statute appears, but if to here recognize this marriage as valid would violate the purpose for which the Constitution and Statute were enacted, the law of comity does not require us to so recognize or give any effect to it. The manifest and recognized purpose of this statute was to prevent persons of Negro and white blood from living together in this state in the relationship of husband and wife. Where, as here, this did not occur, to permit one of the parties to such a marriage to inherit property in this state from the other does no violence to the purpose of Sections 263 of our Constitution and 459 of the Code of 1942. What we are requested to do is simply to recognize this marriage to the extent only of permitting one of the parties thereto to inherit from the other property in Mississippi, and to that extent it must and will be recognized. This is in accord with the holdings of courts of other states faced with this Negro problem, particular reference being here made to Whittington v. McCaskill, 65 Fla. 162, 61 So. 236, 44 L.R.A. (N.S.) 630, Ann. Cas., 1915B, 1001, and Caballero v. Executor, 24 La. Ann. 573. The annotation to Toler v. Oakwood Smokeless Coal Corp., 127 A.L.R., beginning at page 437, is very illuminating here.
Pearl Mitchell Miller left quite a bit of property in Illinois, in addition to that here in question, which she devised and bequeathed to her husband, Alex Miller. One clause of her will is as follows: "It is my wish that my said husband is to have no other claim, right or title to any other property that I may own in the United States except the property specifically mentioned and described in this will."
One of the appellee's contentions in the court below was this clause of the will prevented Alex Miller from inheriting the property here in question, but no such contention is made by them in this Court.
The court below should have denied the prayer of the appellee's petition and granted that of the appellant's cross-petition, including an accounting for the rents collected by the cross-defendants on the property.
Reversed and remanded.