Estate of Campbell

G. Wyatt Wheeler and John W. Wheeler filed their petition for a partial distribution of the above-entitled estate, claiming to be sons of Basil Campbell, deceased, by his wife, Mary Stephens, alleging that “the only other heir of said deceased is his surviving wife, Mary Jane Campbell”; it is also alleged that the last will of deceased has been lately admitted to probate and the said Mary Jane Campbell duly appointed executrix thereof. The petition was opposed by the executrix in her official capacity and by her individually and by Leonora Williams, devisee and legatee under said will, denying the averments of the petition. The court found “that the said G. Wyatt Wheeler is not nor is the said John W. Wheeler, the offspring or child of any marriage whatever between the person known as Mary Campbell, also known as Mary Stephens. That the said G. Wyatt Wheeler is not nor .is the said John W. Wheeler a son or heir at law of the said Basil Campbell, deceased; that neither of said petitioners is entitled to succeed to any part of the estate of said deceased. ’ ’ The petition was denied by the court and petitioners appeal from this order. The findings are challenged as unsupported by…

I dissent from the denial of the application to vacate the judgment of the district court of appeal in this cause. I do not think that the decisions holding that a marriage contracted in good faith between slaves is not a marriage at all should be followed. And if it were conceded that such a marriage is technically null on the ground that the parties were slaves without capacity to contract, under the decisions of the courts of the slave states made during the existence of that condition, nevertheless the children born of such a marriage should be considered as legitimate under our statute. Section 1387 of the Civil Code declares that “The issue of all marriages null in law, or dissolved by divorce, are legitimate. ’ ’ There being no evidence in the record as to the law of Missouri where the marriage of the deceased with the mother of the petitioners took place and where they were bom of that marriage, it is to be assumed that the law of that state is the same as our own. If ever there was a law which should be broadly and liberally construed, it must be admitted that this law is of that class when applied to a marriage which, in all respects except the capacity to enter into it,…