delivered the opinion of the Court:
1. Some question has been made as to whether the deed from James and wife “ of the one part” to Paul and Frances Jennings “ of the other part,” passed the title to Paul Jennings only, or to said Paul and Frances Jennings as joint tenants. Under either construction the interest of the plaintiff is the same, and the question, therefore, is of no material importance. It is proper to say, however, that the apparent clerical error in the words of conveyance to “ the party of the second part, his heirs and assigns,” cannot have the effect to change the plain intent of the deed. The necessary effect of the deed was to convey the title to Paul and Frances Jennings, as joint tenants.
2. As Frances Jennings survived her father, the will of Paul Jennings can have no effect upon the plaintiff’s right, as a muniment of title, and it is unnecessary to consider the effect of its residuary clause. It remains, however, with its recital of relationship, as father and son and daughter, between Paul Jennihgs and the plaintiff and Frances Jennings, for whatever weight may be given thereto as a circumstance in determining their true legal relations as affecting the plaintiff’s right to recover as one of the two heirs at law of said Frances.
3. As Paul Jennings and the mother of plaintiff and Frances were slaves, residing in the State of Virginia at the time of the alleged marriage between them, plaintiff’s right, as the heir at law of Frances, must depend upon the effect of certain *52legislation enacted since the general abolition of slavery, for the purpose of rendering legitimate the offspring of former slaves under certain conditions.
The appellant relies upon certain acts of Congress enacted for the District of Columbia, and also upon an act of the Legislature of Virginia, passed in i860, which he read in evidence. This is, substantially, in the same words as the act of Congress for the District, enacted also in 1866.
We will first inquire into the effect, upon his rights, of the acts of Congress ; for, if protected thereby, it will be unnecessary to examine and decide the very interesting questions arising out the attempted application of the statute of Virginia to persons who, at the time of its enactment, were either dead or had removed from that State.
The first act of Congress was passed July 25, 1866, and reads as follows:
“ That all colored persons in the District of Columbia who, previous to their actual emancipation, had undertaken and agreed to occupy the relation to each other of husband and wife, and are cohabiting together 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 between them or not, shall be deemed husband and wife, and be entitled to all the rights and privileges, and subject to the duties and obligations, of that relation in like manner as if they had been duly married according to law, and all their children shall be deemed legitimate, whether born before or after the passage of this act. And when the parties have ceased to cohabit before the passage of this act in consequence of the death of the woman or from any.other cause, all the children of the woman recognized by the man to be his shall be deemed legitimate." 14 Stat. 536.
That act, with slight change of phraseology; has been .incorporated in the Revised Statutes of the. District of Columbia, as sections 724, 725, 726.
The second act was passed February 6, 1879, and reads as follows:
*53“ That the issue of any marriage of colored persons, contracted and entered into according to any custom prevailing at the time in any of the States where the same occurred, shall, for all purposes of descent and inheritance and the transmission of both real and personal property in the District of Columbia, be deemed and held to be legitimate and capable of inheriting and transmitting inheritance * * * anything.in the laws of such States to the contrary notwithstanding.” 20 St. at Large, 282.
In considering the application of those acts to the parties' in this case, it must be remembered that the alleged marriage, according to the custom of slavery, occurred in Virginia ; that the alleged wife of Paul Jennings and the mother of plaintiff and Frances died in that State about the year 1843; that Paul Jennings acquired his own freedom and that of his children before the purchase of the property in 1856 ; that he removed with them to the District of Columbia about the same time, living with them and recognizing them as his children; and that he continued to recognize and treat them as such until his death in 1874.
That the legal relation of husband and wife could not exist among slaves, was not an arbitrary rule, prompted by a spirit of cruelty and oppression, but a necessary condition of the institution of slavery whilst it existed. Slaves could make no contracts, own no property; they were themselves property. The recognition of the duties, obligations and rights of the legal relation of husband and wife was necessarily incompatible with those conditions ; hence they could not exist, and the illegitimacy of slave offspring followed as a logical result.
But, notwithstanding their character as property, they had a clearly recognized status as persons also. In this latter character their cohabitation as “man and wife” had. a moral foundation and obligation, always permitted, and usually required, to be preceded by the solemn ceremonies of the church.
When slavery had been abolished, and the right to ac*54quire and transmit property had attached to the former slaves, justice and' humanity, as well as sound public policy, demanded legislation giving legal sanction, as far as possible, to the moral obligations of these permissive relations, and rendering legitimate the offspring thereof.
The spirit of this demand met with early and ready response in the legislation of the former slave holding States, and in that of Congress, for the District of Columbia, in. which great numbers of former slaves had congregated during and after the civil war.
Legislation dictated by such considerations and with such beneficial ends in view, ought to receive the broadest and most liberal interpretation not necessarily incompatible with its express provisions, so as to include within the scope of its relief all persons that can be comprehended in its spirit.
This brings us to the consideration and determination of the controlling question of the case. Assuming that Paul Jennings and the plaintiff’s mother “ had undertaken and agreed to occupy the relation to each other of husband and wife” whilst slaves in the State of Virginia; that the relation continued to the time of her death; and that Paul Jennings, up to the time of his death in the District of Columbia, had always recognized the plaintiff as his own child; the question is : Shall the plaintiff be deemed the legitimate son of Paul Jennings under the provisions of either the act of x 866 or that of 1879, quoted above ?
Clearly, the case of the plaintiff is not comprehended in the first clause of the act. of 1866 (now R. S. D. C., secs. 724 and 725), because .his mother had never cohabited with Paul Jennings as his wife, in the District of Columbia, and had died long before his removal here. But it comes, equally as clearly, within the terms of the last clause (now R. S. D. C., sec. 726), unless these must be limited in their application to the. children of parties who had lived together-as husband and wife in the District ?
Why should the terms of the act be thus limited ? Why • *55should we hold that Congress intended to make a distinction between persons situated as the plaintiff was at the time, and those whose parents, similarly wedded, had happened, for a time, to live together in the District ?
The act was intended to operate in favor of persons and upon property in the District, by removing legal obstacles in the way of an intrinsically rightful inheritance.
• The justice and expediency of legitimating children whose mother had been recognized by the father as his wife to the time of her death, so far as the laws of slavery, in their then place of residence, would permit, and who had been brought to the District and here recognized, declared, and cared for as his own children by that father, were as cogent as in the case of those whose parents had actually lived together, in the same relation, in the District.
Bearing in mind the spirit of interpretation above invoked, and that these people were justly within the mischief to be remedied, and finding no plain expression of a contrary intention, we mnst hold that they were comprehended in the general scope and purpose of the act.
The. act of 1879 is broader in its scope than that of 1866, and confers the right to inherit property, in the District of Columbia, upon all persons, no matter w'here they or their parents may have lived, who might be “ the issue of any marriage of. colored persons, contracted and entered into according to any custom prevailing at the time in any of the States where the same occurred.”
4. Notwithstanding the plain rule of the act of 1879, and the construction given the act of 1866, it is contended, on behalf of the appellee, that the court was, nevertheless, right in directing a verdict for the defendant, because the evidence submitted by the plaintiff was not sufficient to warrant.a finding by the jury that the form of marriage contemplated by either statute had ever been contracted by the plaintiff’s parents. If, upon examination of the evidence, we find this contention to be well founded, the judgment must stand ; otherwise.it must- be reversed.
*56There was no direct proof of an actual marriage. The plaintiff’s own testimony that there was such a marriage was necessarily a mere conclusion of his own, founded on hearsay. It is' true that the fact of marriage may be ■ proved by the declarations of deceased persons related by blood or marriage to the person j but the proper relationship of the declarant must first be established. Blackburn v. Crawford, 3 Wall. 175, 187; Green v. Norment, 5 Mackey, 80; Anderson v. Smith, 2 Mackey, 275.
It would seem that the knowledge of the plaintiff had been derived from “ his uncles in Ohio,” with, whom he had lived for sixteen years, and who, he said, “ knew about it.” To make their declarations competent, it should have been shown that they were brothers of Paul Jennings and dead at the time of the trial. Moreover, their declarations should have been given, and not plaintiff’s conclusions therefrom. If they were brothers of the mother their declaration would serve no useful purpose, because to make them competent, the fact of their relationship to Paul Jennings would first have had to be established from other sources. Blackburn v. Crawford, supra.
' The fact of marriage, however, may be inferred from circumstances, and in questions of legitimacy, where not inconsistent with other facts in evidence, it may be established by proof of cohabitation and repute. 1 Bishop on Marr. & Div., secs. 439, 443, 457; Blackburn v. Crawford, 3 Wall. 175, 186, 195.
If a legal marriage between white persons may be inferred, after great lapse of time, from the fact that they cohabited for years as husband and wife, acknowledging that relation and recognizing the, offspring of such cohabitation, in order to establish the legitimacy of such .offspring and their consequent right to inherit the property of their parents, there seems to be no reason why, as said by Mr. Justice Cox, speaking, for the General Term of the Supreme Court of the District, in the case of colored people, formerly slaves, it should not be held “just and proper,to,infer *57marriage from the same state of facts as in the case of white people.’-’ Green v. Norment, 5 Mackey, 80, 88; see also Diggs v. Wormley, 21 D. C. 477; Francis v. Francis, 31 Grattan, 283, 287.
On account of the character of the marriages permitted among slaves, the restrictions upon their visits and cohabitation where they belonged to different masters, the necessity of permission therefor, and the general, if not universal, prohibition of openly immoral cohabitation, we see no reason why greater liberality of inference should not be indulged in their case than in that of free white persons.
-■ In this case, it is apparent that Paul Jennings was a man' of intelligence and character, superior to that of his class generally. He lived with the plaintiff’s mother openly as his wife, in a house to themselves. Children were born whom he recognized as his. While living with his master in Washington he visited his wife in Virginia for a month at a time and longer. He was with her when she died. These things could not have been unknown to or against the will of their respective masters. Having achieved his freedom after the death of his wife, he continued to recognize the children as his own. Their freedom acquii’ed, too, he brought them to Washington and gave them a home with him. Before dying he made a will giving his property to them, and in its terms showed a tender care for his afflicted daughter, Frances, the sister of plaintiff, and under whom he here claims as an heir at law. Most probably the property in this case involved would have been disposed of also for the benefit of the children, had he not known that by the terms of the deed thereto Frances would sue-, ceed to the whole title after his death.
The liberality of the presumption, as intimated above, that may be indulged in a case of this kind, beyond that in the case of free white people, has a foundation in reason as well as in natural justice.
It. must be Constantly borne in mind that the marriage to be presumed is not a marriage between white persons, *58solemnized under the sanction and regulation of law, and ordinarily, if not universally, made a matter of public record. On the contrary, it was what was called a “ slave marriage,'" not regulated by law,- but permitted” according to the varying, rules of different masters. AH that is required of the testimony is that it shall be sufficient to warrant the inference, either that Paul Jennings' and the mother of plaintiff had undertaken and agreed to occupy the relation to each other of husband and wife; or that they had entered into marriage according to the custom prevailing in Virginia among slaves at the time of the commencement of their voluntary cohabitation.
It would be difficult, we think, to indulge any other presumption from the testimony in this, case than that there had been, a marriage between the parties such as contemplated in either one or other of the statutes- that govern the case.
We are of the opinion that the case should have been . submitted to the jury, and. that the failure to do so was error, for which the judgment must: be reversed, with costs to ike appellant, and a new trial awarded; and it is so ordered..