Malinda v. Gardner
Supreme Court of Alabama
Appeal from the Court of Probate of Dallas. In the matter of the final settlement of the estate of Tom, a free negro, by Garland F. Gardner, his administrator.
Read the full summary
Appeal from the Court of Probate of Dallas. In the matter of the final settlement of the estate of Tom, a free negro, by Garland F. Gardner, his administrator. The following facts are shown by the record: The intestate belonged to Baxter Smith, who died in Dallas County, in 1828, leaving a last will and testament, in which he directed his executors to emancipate said Tom and a woman named Charity, with whom said Tom had cohabited, and- by whom he had two children, Malinda and Sarah, the appellants. After the death of said Baxter Smith, an act was passed by the Legislature of this State*…
1Opinion of the CourtGoldthwaite, J.
Malinda and Sarah could not claim as heirs proper of their father, for the reason that both the *724father and mother were slaves, and persons in that condition are incapable of contracting marriage, because that relation brings with it certain duties and rights, with reference to which it is supposed to be entered into. But the duties and rights which are deemed essential to this contract, are necessarily incompatible with the nature of slavery, as the one cannot be discharged, nor the other be recognized, without doing violence to the rights of the owner. In other words, the subjects of the…
2Cases cited1 opinion
- Smith v. StateSupreme Court of Alabama · 1846
3Cited by12 opinions
- Johnson v. JohnsonSupreme Court of Missouri · 1870
- Washington v. WashingtonSupreme Court of Alabama · 1881
- Daniel v. SamsSupreme Court of Florida · 1880
- Williams v. WitherspoonSupreme Court of Alabama · 1911
- Andrews v. PageTennessee Supreme Court · 1871
7 more not listed; retrieve them via the Exa API.