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The opinion of the court was delivered by

Mr. Justice McGowan.

S. B. R. Riley, commonly called Stephney Riley, a man of color, died in October, 1885, intestate, leaving, as stated, personal estate more than enough to pay his debts. He left a widow, Molly Riley, but no children or lineal descendants. The widow, Molly, administered, and being in possession, claims the whole estate as sole heir. This action was instituted against her for an account by the plaintiffs, the Clements, claiming to be brothers and sisters, or their children, of the intestate, through their mother, Patty, or Patsy, Clement; making parties defendant the Snipe children, who claim to be brothers and sisters of the half blood through their father, one Isaac Snipe. The parties are all colored people, formerly slaves, and the question is, whether any of them, and, if so, who, are the heirs at law of the intestate, Stephney Riley.

It was referred to the master, G. II. Sass, Esq., to take the testimony and to report upon all the issues of law and of fact, with leave to report any special matter. He took a mass of testimony, which is all printed in the “Brief,” and reported, among other things, as follows : “Isaac Snipe, the elder, a slave, lived on Mr. Bailey’s plantation, on James Island, for years before the late war. He died long before the war in slavery. He left surviving him several children, the Snipes and Stephney. The Snipes were the children of a woman named Hannah; Riley of Patty or Patsy Clement. Patsy was bought by Mr. Bailey from a plantation in St. John’s Parish, and brought to his plantation. She had several children, the Clements, plaintiffs herein, when *76she came to the Bailey place. They were by another father (probably other fathers) than Snipe; and the father of at least one of the children afterwards went to the Bailey pla'ce in search of her, but was driven off by Snipe, with whom she was then living. When Patty came to the Bailey place, Hannah was still alive, and it seems from the weight of the testimony that she was still living with Snipe, though some of the witnesses say that Snipe had separated from her before Patty’s coming. Be that as it may, however, shortly after Patty’s coming, Snipe left Hannah and ‘took up’ with Patty, and Isaac and Patty thereafter lived together as man and wife, according to plantation custom, for many years, and he was living with her when he died. Stephney Riley was the only child of Patty and Isaac. Hannah, the mother of the Snipe children, was alive at the time of Riley’s birth, and, indeed, outlived Isaac Snipe; but Isaac never returned to her. He left her definitely, and took Patty as his wife, and his marriage to Patty was recognized by their owner, Mr. Bailey, who, when Patty’s former husband came to the plantation after her, supported Snipe against him, and ordered him off the place. Riley was subsequently sold and removed to Charleston. On December 23rd, 1853, he was married to Molly, a slave, by the rector of Calvary Episcopal church, and lived with her as his wife to the day of his death. They never had any children, and Molly survived her husband, and is defendant herein. Riley accumulated property after the war, and this suit is brought by the Clements, the children and grandchildren of Patty, claiming one moiety of the same as the half sisters, by the mother’s side, of Riley, who died intestate, against the widow and the Snipes (children of Hannah), who claim as the half brothers and sisters of Riley, by the father’s side. If the claim of the half blood be sustained, the .widow is entitled to one moiety, and the half blood to the other moiety. If no half blood relationship (and no other is set up), the widow takes the whole estate,” &c. He held that Isaac and Hannah were not husband and wife, and, therefore, that the Snipes were not legitimate, but that Isaac and Patty were husband and wife, and their issue, Riley, w'as legitimate, and the plaintiffs (Clements) were brothers of the half blood *77through their mother, Patty, and entitled to one moiety of the estate, the other going to the widow, Molly.

Both the widow, Molly, and the Snipes children excepted to the report, and, upon argument, the Circuit Judge held as follows, viz. : “I find that there is evidence of a moral marriage between Isaac Snipe and Hannah, slaves. The consent of their owner could confer no right to dissolve such marriage. The relations between Isaac and Patty were not those of husband and wife, but concubinage merely. S. B. W. Riley was illegitimate. There is no proof of the legitimacy of the plaintiffs. I do not consider that the facts of this case bring it within the decision of Davenport v. Caldwell (10 S. C., 317), nor under the operation of the acts of 1865, 1866, and 1872. It follows, that neither the' plaintiffs nor the defendants are heirs at law of S. B. W. Riley, deceased, and that the defendant, Molly Riley, the widow of the intestate, is entitled, under the statute of distributions, to hold the entire estate of her deceased husband, without accountability to the plaintiffs, or the defendants,” &c. From this' decree the Clements, as well as the Snipe branch, appeal to this court.

Clements’ Appeal. — “1. Because his honor found that ‘there was evidence of a moral marriage between Isaac and Hannah, slaves. , The consent of their owner could confer no right to dissolve such marriage. The relations between Isaac and Patty were not those of husband and wife, but merely concubinage.’ And in error, further, in not finding that Isaac married Patty according to plantation custom, and with the sanction of their owner, and lived with her as his wife until his death, and that the connection between Hannah and Isaac was not a marriage even according to plantation custom, but merely concubinage. 2. Because his honor erred in finding S. B. W. Riley illegitimate, and that there was no proof of the legitimacy of the plaintiffs. 3. Because his honor erred in not finding the plaintiffs the legitimate children and grandchildren of Patty, because the master so found, and neither Molly, the widow (except as to one), nor the Snipe defendants, excepted to such finding, and therefore it must be taken as a fact. 4. Because his honor erred in finding that the facts of this case do not bring it within the decision of Davenport v. Caldwell (10 S. C.), nor under the operation of the acts *78of 1865, 1866, and 1872. 5. Because his honor erred in finding that the plaintiffs are not the heirs at law of S. B. W. Riley, and that Molly Riley, the widow, is entitled to hold the whole estate of her deceased husband, without accountability to the plaintiffs. 6. Because his honor was in error in that he did not find that, irrespective of the fact, whether Hannah or Patty was the wife of Isaac (Riley’s father), yet the plaintiffs and Riley, being both children of the same mother, to wit, Patty, that under the operation of section 4 of the act of 1865, they are her legitimate children, and hence inherit the one from the other — the plaintiffs from Riley,” &c.

Appeal oe Snipe’s Children. — “1. Because his honor, the •judge, found that the consent of the owner of Isaac and Hannah, slaves, conferred no right to dissolve their marriage, and should have found that the act of the owner operated as vis major, and therefore dissolved such marriage. 2. Because the judge should have found that the relations between Isaac and Patty, after the dissolution of the marriage between Isaac and Hannah, were those of husband and wife. 3. Because the judge should have found that Stephney B. W. Riley was the legitimate son of his mother, and there being proof of the acknowledgment by his colored father, should have found also that he was the legitimate son of his colored father, Isaac Snipe. 4. Because he should have found that under the operation of the acts of 1865 and 1872, and the decision of Davenport v. Caldwell, the defendants were the legitimate children of their mother, Hannah, and their heirs, and also (having been acknowledged by their father) the legitimate children of their colored father. 5. Because the judge should have found that the defendants were the half brothers and the descendants of other half brothers and sisters of the intestate, and, as such, were his heirs at law, and entitled to share in his estate, under the statute of distributions,” &c.

As we understand it, the case must be determined by the relations which Isaac Snipe bore to the two women, viz., Hannah and Patty. They were all persons of color, and the connections between them originated and ended while they were slaves. It has been truthfully said, that ‘fit was an inflexible rule of the law of African slavery, wherever it existed, that the slave was incap*79able of entering into any contract — not excepting the contract of marriage.” From this, it is clear that, while these people were slaves, no connections between them could be considered as legal marriage, in such sense as to become the source of legal heirs at law. If this were all, it is absolutely certain that none of the parties claiming could be held to be the heirs at law of the intestate. But after emancipation had removed the disabilities of slavery, and conferred upon these people the right to acquire property and to make contracts, the anomalous condition of those who were born in slavery was at once apparent, and the legislature, probably feeling that it was in accordance with natural justice that they should be allowed to inherit from each other, passed several acts for the avowed purpose of establishing and regulating “the domestic relations of persons of color,” and “to legalize certain marriages,” &c.

The act of 1865, amongst other things, provided as follows: “Section 1. The relation of husband and wife among persons of color is established.” “Section 4. Every colored child heretofore born is declared to be the legitimate child of its mother, and also of its colored father, if he is aeknowedged by such father,” &c. The act of 1872 “to legalize certain marriages” provided: “Section 1. That all persons in the State of South Carolina who, previous to their actual emancipation, had undertaken and agreed to occupy the relation to each other of husband' and wife, and are cohabiting as such, or in any way recognizing the relation as still existing at the time of the passage of this act, whether the rites of marriage have been celebrated or not, shall be deemed husband and wife, and be entitled to all the rights and privileges and be subject to all the duties and obligations of that relation, in like manner as if they had -been duly married according to law. Section 2. And all their children shall be deemed legitimate, whether born before or after the passage of this act; and where the parties have ceased to cohabit before the passage of this act, in consequence of the death of the woman, or from other cause, all the children of the woman recognized by the man to be his, shall be deemed to be legitimate: Provided, however, that no provision of this act shall be deemed *80to extend to persons who have agreed to live in concubinage after their emancipation,” &c.

These acts, as early as 1877, came under review7 by this court in the case of Davenport v. Caldwell (10 S. C., 317), and, after full consideration, it was held that they were not unconstitutional — the syllabus of the decision being as follows: “Where two slaves, persons of color, went through the form of marriage, lived together as husband and wife for a number of years, and died leaving issue before the general emancipation took place; held, that under the statutes passed since the Constitution of 1868 was adopted, said persons were to be considered in law as husband and wife, their children as legitimate, and capable of inheriting from each other under the statute of distributions,” &c. This case has been recognized and followed in the cases of State v. Whaley, 10 S. C., 500; Dingle v. Mitchell, 20 Id., 202; Myers v. Ham, Ibid., 522; and James v. Mickey, 26 Id., 270.

It may be that in some respects the case at bar is not as full and clear as that of Davenport v. Caldwell, especially in reference to the alleged marital relations of the parties ; yet we are unable to see why the facts do not in most points bring it within the rulings in that case, and under the operation of the acts therein referred to of 1865, 1866, and 1872. The intestate left no lineal descendants. No persons claim an interest in his estate except Molly, who, having gone through the ceremony of marriage with him while they were both slaves, claims the whole of his estate as his widow, and certain other persons, who claim as collateral heirs (half-brothers and sisters of the intestate); so that, unless the acts, referred to have some bearing upon the case, it is perfectly manifest that, while the intestate, Stephney, left property, he left no heirs capable of inheriting it. We think the contention must be mainly decided by the force and effect of the aforesaid acts, wherever the facts authorize their application.

As to the right of Molly, the widow, there is really no contest. It seems that the Rev. Mr. Trapier, of Calvary church, Charleston, performed the marriage ceremony between her and Stephney, the intestate, on December 23, 1853, when they were both slaves. But as they were living together as husband and wife at the time of the passage of the act (1872), the first section of *81that act declared them to be husband and wife, and the w^fe (Molly) is therefore entitled to all the rights and privileges of that relation, “in like manner as if she had been duly married according to law.”

As to the Snipe branch of the claimants. They claim as collateral heirs of Stephney, and before they can share in his estate it must appear, not only that they are legitimate, but that Riley was also legitimate; for one born out of lawful wedlock cannot have collateral heirs. The master found that the connection between Isaac and Hannah (father and mother of the Snipes) “was not a marriage even according to the custom of slavery, but an irregular connection, put an end to voluntarily by Isaac himself, with the sanction of the owner, and never revived after his ‘taking up’ with Patty.” The Circuit Judge, however, thought that the circumstances authorized the conclusion that there was a moral marriage between them, and, as we suppose, their issue legitimate. We have read the testimony carefully, and we must say that upon this point we agree with the master, that the relation between Isaac and Hannah was not such as, under the operation of the acts aforesaid, became a legal marriage, making the issue legitimate. Speaking in general terms, the parties happened to be thrown together, and without authority from any one, or the slightest pretence of a marriage contract or ceremony, they lived together for a time, that is to say, until Isaac, who seems to have been “a privileged character,” met another woman who was more agreeable to him. We have not been able to discover any proof that there ever was a contract between Isaac and Hannah to live together as man and wife, or, indeed, of any declarations or admissions upon their part, pointing to the existence of any such contract.

We cannot think that it was the intention of any or all of the acts aforesaid to attempt the impracticable thing of legitimizing the whole colored race, without the least regard to the circumstances under which they were born, including the offspring of mere concubinage. As it strikes us, it could not have been the intention to create marriage relations which in fact never existed, so as to affect the rights of inheritance. The law does not undertake to make the marriage contract; that must be the act of the *82parties themselves, the law only declaring its consequences. As we understand it, the purpose was to remedy a case where the parties had agreed to occupy towards each other the relation of husband and wife, that is, a moral marriage, lacking only the power of contract to make it legal. The existence of such contract was generally shown by a public ceremony, but that was not indispensable. It might be proved by the declarations or conduct of the parties as evidence from which such contract might be inferred. But, as we think, such conduct or declarations, to be of much force upon that question, should be of such a nature as to point unmistakably to a previous contract of marriage. See the case of State v. Whaley, supra.

But if we take the view of the Circuit Judge, that the circumstances made out a moral marriage between Isaac and Hannah, and their issue legitimate, then, as it seems to us, Isaac having one wife, could not legally marry a second (Patty) while the first was living. If not, the subsequent connection of Isaac with Patty was illicit, and its issue (Stephney) illegitimate, unless the first marriage with Hannah had been dissolved by divorce or death, and we see in the case not the slightest evidence of either. It seems that Hannah outlived both Isaac and Patty, and she was neither sold nor sent off in such way as to make a case, as claimed, of vis major, which dissolved her alleged man’iago with Isaac. If, as claimed, Isaac and Hannah were husband and wife, and their issue legitimate, then Isaac’s subsequent connection with Patty was illicit, and their issue (Stephney) illegitimate. In that case the Snipes, though legitimate, could not inherit from Stephney, an illegitimate, and therefore in any view, the Snipe claim must fail.

Then as to the Clement claim. Assuming, as we have concluded, that Isaac and Hannah were never married, then Isaac could marry Patty. The master found that Isaac and Patty “were married according to plantation custom and with the sanction of their owner, Isaac lived with her as his wife until his death, and that Stephney Riley was their only child, the other children of Patty having been by previous husbands, from whom she was separated by sale and removal,” equivalent to a divorce or release a vinculo matrimonii (Davenport v. Caldwell, supra). He held *83that the plaintiffs (Clements) were the half brothers and sisters of.the intestate, Stephney, through their mother, Patty, and as such entitled to one moiety of his estate, the other going to the widow, Molly. The question is not entirely free from obscurity, but in the exercise of our best judgment we concur in the findings of the master, that Stephney Yas legitimate, and the Clements, his half brothers and sisters through their mother, Patty. This view is strengthend by the positive declaration in the act'of 1865, “that every colored child heretofore born is declared to be the legitimate child of its mother.” It may be doubtful who is the father of a child, but there can be no doubt as to who is the mother that gives it birth. The legislature seems to have considered that, in view of the moral condition of the people, the child should be entitled, at all events, to inherit from and through its mother.

The judgment of this court is, that the judgment of the Circuit Court be modified, and that the cause be remanded, that the conclusions herein announced may be carried out.1

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