
    
      No. 8155
    COURT OF APPEAL PARISH OF ORLEANS.
    MRS. FANNIE FLEMMING et als versus MRS. JOSEPHINE JONES, et als.
   Dinkelspiel; J,

This litigation arises'on the following facts:

The petition of Mrs. Fannie Jones, wife of David Flemming, James Dodds, Susan MoLane, wife of Charles Mlllian and Mrs. Fs.nnie MoLane wife of Wilson Davids, shows that your petitioners are the 3ole and only saxtxtsg surviving heirs of the Ms.ry Blakeley, wife of late/Ms.rshall Williams, who died in this oity on or about April 37th, 1910, intestate, and alleging further that Mery Blakeley, wife of Marshall Williams, left oertain property hereinafter described and whloh was acquired during and belcn&dd to the flommuni. ty of acquets and gains existing between said deoedant and her husband Marshe-11 Williams, who died September 19th, 1917, and whose succession has b?en opened on the docket of this Honorable Court, end alleging further that at the death cf the said Mary Blakeley, vife of Ms.rhsS.ll Williams, her community interest in said property was inherited by your petitioners in the proportion of one-quarter of the one-half, to each, and then follows desorlp,. tlon of the property.

And further alleging that said Marshall Williams oh August 17th, 1917, by aot before Robert O'Connor, atempted to sell and transfer with the right of redemption within one year, from the date thereof, to one Arthur Ruiz, the property described and that your petitioners are the owners of one undivided half of said property in indivisión with Mrs. Josephine Brunet, wife of Thomas Jones end was sent into possession of the estate of said Marshall Williams and that petitioners no longer desire to with remain in indivisión/ ¡heir oo-owners Of said property and that a sale thereof is necessary to affeot a partition between them and the prayer is that they be reoognized as the sole heirs deolared of the said Mary Blakeley and be/ to be the owners in indivisión of one-half of the real estate hereinabove mentioned and there be a judgment directing a partition thereof by licitad tion and the said property be ordered sold at public auotion for oasli and finally that there be judgment in favor of your petitioners and for all general and equitable relief.

The answer, after sundry exceptions filed were properly overruled, denies all and singular the allegations the petition contained and the parties named are the heirs of the property claimed, beoause their ¡ucxsnisx aneestors were not married under the laws of the State of Louisiana and therefore these parties are without rights in the premises and prays that petition be dismissed.

We have carefully examined the reoord in this oase, together with the testimony adduoed.

¿11 the witnesses, Susan MoLane, Haggar Connors, Osoar Pllman, Mary Jones, James Dodds and Fannie Davis, together with the testimony of Mrs. Fannie Flemming, established the marp riage of the ancestors of the parties in question beyond a question of a doubt in so far a3 it is possible to do so in oases of this oharaoter, where the parties in question were at the time of the marriage, slaves, blit in our opinion from the testimony ■ and all surrounding oiroumstanoes we sxcosfcjqtí&at are satisfied the marriage between the parties named, their cohabitation and living together for years, their acknowledgment of the marriage all profe that fact. •

. rt would be useless to oopy Jin this reoord and totally unnecessary, all the evidence in this case, but it establishes without doubt the faots above stated.

Our Supreme Court in many proceedings has de-oided this question, commencing with the 6th La. Rep.- p 470, where it was held:

■Marriage, is -regarded in no- other light than a civil oontraot highly favored.

Marriage may be proved by any speoiei ofevl-djihoe not prohibited by law, whioh does not pre-suppose a high-» '** *5,diM °f- o-tidenoe in, the power of parties; oohabitation as

And in the 13th la. Hep. p. 109, Hosea's widow and heirs vs. Miles. ;

"Heirship, may he established by'parole evidenoe.," 44 Ann. 63. Sucoession of Llula.
"Cohabitation and the reputation of being man and wife, birth of children, giving the -name of the father, creates a presumption of previous marriage."

51st Ann. p. 1597, Succession at Fortier.

"It has been repeatedly declared that the law does not deolare null, marriages, in which the law relating to forms and ce.-emonies have not been observed) that marriage may be proved by any speoies of evidenoe not prohibited by law, whioll does not pre-suppose a higher speoies of evidenoe within the pow-t er of the party."

' All tend to establish, the' faot that cohabitation and living together of parties dor years as married people, and recognized as suoh by their friends and neighbors determines than question.

The only argument attempted to be advanced oontrary to this both orally and by brief of parties defendant and .hearsay is that the evidenoe adduoed is/biased/and therefore -inadmissible.

The Judge of the Court aqua who heard and' eaw these witnesses, all of them, was of the oontrary opinion, and. eo are wé.

.For the reasons- assigned it. is ordered, adjudged and decreed, that the judgment' of the Court aqua. be and 'the; same .is hereby affirmed.

-Judgjnent affirmed.  