
    JOHN H. BROOKS v. RICHARD FRANCIS, JULIA A. RODGERS, GEORGE A. RODGERS, et al.
    Equity. —
    No. 4314.
    I. The testimony of a married woman as to statements made to her by the husband, concerning his pedigree, should he excluded, although he is dead at the time of the trial.
    II. A widow whose husband was illegitimate is his sole heir at law, in ease there are no children by the marriage.
    STATEMENT 0E THE CASE.
    The bill herein was filed for settlement of title and refonniation of deeds.
    It set forth that one Correll Rodgers, being the owner of certain premises in the city of Washington, borrowed of the defendant Richard Francis $700, agreeing and intending to secure the repayment of the loan by a deed of trust on said premises, and accordingly executed an instrument for divers reasons defective and void; that afterwards Correll died, leaving the defendant Julia his widow, the defendants George et al. his next of kin and heirs at law, and the loan unpaid; that when the loan became payable, Richard, the lender, bought the property, and subsequently sold it to the plaintiff for $5,000, and was now seeking to compel the full payment thereof, notwithstanding that all the deeds were irregular, defective, and void; and the plaintiff prayed, &c.
    To this bill the defendant Julia appeared, and answered the same under oath, admitting the material averments of the bill, and saying that the defendants George et al. were the heirs and next of kin of her late husband, while she was his widow, but that the property in question had been bought with her money, and that she was, therefore, in equity, entitled to the proceeds thereof, after satisfying the debt of Richard Francis.
    The defendants Richard Francis, Elias Francis, and James H. Smith also answered under oath, admitting that the defendants George et al. were the heirs.and next of kin of the late Correll Rodgers, deceased.
    More than a month afterwards, however, the said defendants again came into court and filed amended answer, alleging that they were informed and believed that the said George. et al. were the children of another child of the mother of Correll, and that such mother was never lawfully married to any person.
    The defendants' George et al. appearing to the bill, answered, averring that they were the sole heirs and next of kin of the said Correll Rodgers, deceased; admitting that it was the intention of their said uncle to secure the payment of Inis loan from Richard Francis upon the property in question ; that they were willing that said Richard should be repaid, but that they had succeeded as heirs to the estate of their said uncle, and were of right entitled to have the amount of the lien determined, and then to redeem the property from the incumbrance, or to receive the avails, upon its sale, after discharge of the debt and satisfaction of their aunt’s dower.
    To the same effect these defendants filed their cross-bill, alleging their sole heirship to Correll, deceased; that their father was William Rodgers, the only brother of said Correll ; that at his death Correll was the owner of the property mentioned, seized and possessed thereof in fee; that, subject to admeasurement of widow’s dower, they were entitled to the legal estate and to possession of the same; that they were not fully informed as to the equitable rights of the defendant Richard Francis. Wherefore they require them to be fully proven, and then that they should be allowed to discharge such debt after its determination, and to redeem the property. They prayed an accounting and redemption.
    To this cross-bill answer was made to the same effect as the amended answers before set forth, and thereupon issues were duly joined.
    There was also evidence tending to prove that the property in controversy was purchased with the funds of a woman, Julia Ann Rodgers, and was conveyed to her husband, Correll Rodgers, a mulatto; that Correll Rodgers died leaving no children surviving him, and that in consequence of his illegitimacy his widow became sole heir to inherit the property purchased with her own money. It seems that Correll Rodgers was a slave and the son of his master, Augustus Rodgers, by a colored woman, belonging to his master, named Keziah; that he was born in Virginia.
    The defendants, who have filed a cross-bill, claim to be children of William Rodgers, a reputed brother of Correll, and hence the heirs of Correll.
    It appears from the record that this William Rodgers was a mulatto, and the son of a white man; whether by the same woman or not whence Correll sprang, is left in doubt. There is testimony to show that he was the son of a colored woman named Betsy. There is no proof whatever of any marriage between Cornell's mother and his father. Indeed, by the laws of Virginia such a marriage would have been null and void. (Va. Code, 529, chap. 109; 5 Call, 148.)
    
    The deposition for the respective parties having been taken, and the widow of Correll Rodgers, deceased, having therein testified, on her own behalf, in support of her claim to be the sole heir of her husband, that during their married life her late husband had told her that his mother was never married, the aforesaid defendants, plaintiffs' in the cross-bill, duly excepted to such testimony.
    But the court, on the hearing of the cause, overruled the several exceptions taken, and decreed that Correll Rodgers was illegitimate, and his said widow accordingly his sole heir at law. Whereupon appeal.
    
      Francis Miller, for complainant.
    
      George F. Appleby, for Richard Francis.
    If a witness be cross-examined, wfith a knowledge by the party cross-examining of an objection to his competency, it is a waiver of the objection. (Flagg v. Mann, 2 Sumner, 489; Glass v. Stinson, Id., 605.) In this case it was known to the jDarty cross-examining, as appears by the record, that Julia Ann Rodgers was the widow of Correll Rodgers. This court had decided in Utermehle v. Utermehle, and in other cases, that a wife not a party to the record, although directly interested in the event of the suit, and although supposed to be sub protestate viri, is a competent witness. A fortiori is a widow who is a party to the record a competent witness. The act of Congress expressly makes her competent. (Rev. Stats. Dist. of Col., secs. 876, 277.)
    The alleged error in the ruling of the court below is, that a widow cannot testify as to what her husband told her during their married life concerning his pedigree.
    This very point has been decided by the United States Supreme Court, and such testimony was by that court declared to be legal evidence. (Elliot v. Piersol, 1 Peters, 328.)
    This decision was made by the act of Congress cited supra, but in view of that act it could not be otherwise.
    The case, instead of showing any merits, reveals a shameless attempt to plunder the property and estate of a poor colored woman, who, in order to purchase it, sold her own patrimony in Virginia — an attempt made by certain strangers, claiming now to be heirs, whom in his life-time her husband never regarded or recognized as relatives, and upon whose reputed father, through whom the alleged relationship is traced, Nature herself-affixed the stamp of bastardy.
   Mr. Justice Humphreys

delivered the opinion of the court:

We affirm the decree of the chancellor in this cause.

We think that his decree fully met the equities, as growing out of all the rules for the government and determination of rights according to law.

For the purpose of keeping distinct and distinguishable the complicated matters of marital rights growing out of the rebellion, and the consequent capacity of alleged husband and wife, we will exclude the testimony of alleged wife; yet we find enough testimony to sustain the claim of the person iii possession, claiming to be wife, to exclude tbe alleged heir at law, apart from the possession.

On the authority of Nelson et al. v. Woodruff et al., 1 Black S. C., 156, we would exclude the testimony of Julia Ann Rodgers; then we say that the same ideas which could lead the mind to the conclusion that Correll Rodgers had two brothers who could inherit from him, will, according to the evidence, establish that he had a wfffe who succeeds to his estate.

Row,then, exclude Julia Ann; yet she has possession,and that possession by virtue of claiming to be wife. What matters whether she was wife of one incapable of holding property? The claimants are in no better condition. If she was the female associate of the man, in the intimate relation ordinarily existing between man and wife, then, whether slave or free, she is, at least, equal to those who occupy a correlative attitude as to freedom or slavery.

She is now in possession; she was a comrade’of a man whom she called her husband; the two lived together as man and wife, though the moral or legal bonds of slavery may have been around them; the property in question was the-property of the man she served as actual wife.

She is, in our view, entitled to it as the widow.

The decree is affirmed.  