1

Beatriz Wassmer vs Francisco Velez

Wassmers cause of action is supported under Article 21 of the Civil Code which provides
in part any person who wilfully causes loss or injury to another in a manner that is

2 SCRA 648 Civil Law Torts and Damages Article 21 of the Civil Code Moral

contrary to morals, good customs or public policy shall compensate the latter for the

Damages Exemplary Damages Breach of Promise to Marry

damage.

In 1954, Francisco Velez and Beatriz Wassmer planned their marriage. They decided

And under the law, any violation of Article 21 entitles the injured party to receive an

to schedule it on September 4, 1954. And so Wassmer made preparations such as:

award for moral damages as properly awarded by the lower court in this case. Further,

making and sending wedding invitations, bought her wedding dress and other apparels,

the award of exemplary damages is also proper. Here, the circumstances of this case

and other wedding necessities. But 2 days before the scheduled day of wedding, Velez

show that Velez, in breaching his promise to Wassmer, acted in wanton, reckless, and

sent a letter to Wassmer advising her that he will not be able to attend the wedding

oppressive manner this warrants the imposition of exemplary damages against him.

because his mom was opposed to said wedding. And one day before the wedding, he sent
another message to Wassmer advising her that nothing has changed and that he will be
returning soon. However, he never returned.
Tanjanco v. CA, 18 SCRA 994 (1966)
This prompted Wassmer to file a civil case against Velez. Velez never filed an answer and
eventually judgment was made in favor of Wassmer. The court awarded exemplary and
moral damages in favor of Wassmer.

FACTS:
Apolonio Tanjanco courted the plaintiff Araceli Santos BOTH BEING OF ADULT AGE:
that the defendant expressed and professed his undying love and affection for plaintiff

On appeal, Velez argued that his failure to attend the scheduled wedding was because of

who also in due time reciprocated the tender feelings: that in consideration of the

fortuitous events. He further argued that he cannot be held civilly liable for breaching his

defendants PROMISE OF MARRIAGE plaintiff consented and acceded to defendants

promise to marry Wassmer because there is no law upon which such an action may be

pleas for carnal knowledge(sexual intercourse) which later Araceli Santos conceived a

grounded. He also contested the award of exemplary and moral damages against him.

child. Apolonio REFUSED TO MARRY Araceli as promised and refrained from seeing
the plaintiff which led to her suffering from mental anguish, besmirched reputation,

ISSUE: Whether or not the award of damages is proper.

wounded feeling, moral shock and social humiliation. The plaintiff asked that the
defendant recognize the child she was bearing; to pay her not less than P430 a month

HELD: Yes. The defense of fortuitous events raised by Velez is not tenable and also

for her support plus P100,000 in moral and exemplary damages plus 10,000 attorneys

unsubstantiated. It is true that a breach of promise to marry per se is not an actionable

fees.

wrong. However, in this case, it was not a simple breach of promise to marry. because of
such promise, Wassmer made preparations for the wedding. Velezs unreasonable

ISSUE:

withdrawal from the wedding is contrary to morals, good customs or public policy.

Whether or not a breach of promise of marriage can bring any action for damages in

2
court. Whether or not seduction has been an element in the relationship between
Apolonio and Arceli

It should be noted that during the christening of the child, the defendant who was in
charge of the arrangement of the ceremony caused the name Ismael Loanco to be given
instead of Cesar Syquia Jr. that was first planned.
ISSUES:

RULING: NO case can be made since the plaintiff Araceli was a woman of adult age,
maintained intimate sexual relations with appellant with repeated acts of intercourse.
Such is not compatible to the idea of seduction. Plainly, there is voluntariness and

1. Whether the note to the padre in connection with the other letters written by
defendant to Antonia during her pregnancy proves acknowledgement of paternity.

his embraces much less for one year without exacting fulfillment of the alleged promises

2. Whether trial court erred in holding that Ismael Loanco had been in the
uninterrupted possession of the status of a natural child, justified by the conduct of the
father himself, and that as a consequence, the defendant in this case should be
compelled to acknowledge the said Ismael Loanco.

of marriage and she would have cut all relationship upon finding that defendant did not

HELD:

mutual passion: for had the appellant been deceived she would not have again yielded to

intend to fulfill his promises. One cannot be held liable for a breach of promise to marry.
Digest by: Venus Beta-chi Badilla

The letter written by Syquia to Rev. Father serves as admission of paternity and the
other letters are sufficient to connect the admission with the child carried by Antonia.
The mere requirement is that the writing shall be indubitable.
The law fixes no period during which a child must be in the continuous possession of
the status of a natural child; and the period in this case was long enough to reveal the
father's resolution to admit the status.

De Jesus vs Syquia
TITLE: De Jesus v Syquia
CITATION: 58 Phil 866
FACTS:
Antonia Loanco, a likely unmarried girl 20 years of age was a cashier in a barber shop
owned by the defendants brother in law Vicente Mendoza. Cesar Syquia, the defendant,
23 years of age and an unmarried scion of a prominent family in Manila was accustomed
to have his haircut in the said barber shop. He got acquainted with Antonio and had an
amorous relationship. As a consequence, Antonia got pregnant and a baby boy was
born on June 17, 1931.
In the early months of Antonias pregnancy, defendant was a constant visitor. On
February 1931, he even wrote a letter to a rev father confirming that the child is his and
he wanted his name to be given to the child. Though he was out of the country, he
continuously wrote letters to Antonia reminding her to eat on time for her and juniors
sake. The defendant ask his friend Dr. Talavera to attend at the birth and hospital
arrangements at St. Joseph Hospital in Manila.
After giving birth, Syquia brought Antonia and his child at a House in Camarines Street
Manila where they lived together for about a year. When Antonia showed signs of
second pregnancy, defendant suddenly departed and he was married with another
woman at this time.

Supreme Court held that they agree with the trial court in refusing to provide damages
to Antonia Loanco for supposed breach of promise to marry since action on this has no
standing in civil law. Furthermore, there is no proof upon which a judgment could be
based requiring the defendant to recognize the second baby, Pacita Loanco. Finally, SC
found no necessity to modify the judgment as to the amount of maintenance allowed to
Ismael Loanco in the amount of P50 pesos per month. They likewise pointed out that it
is only the trial court who has jurisdiction to modify the order as to the amount of
pension.

180 Conn. 369 (1980)

ROBERT L. PICCININNI v. MARIE A. HAJUS

Supreme Court of Connecticut.

Argued January 17, 1980.

Decision released April 22, 1980.

3
COTTER, C. J., LOISELLE, BOGDANSKI, PETERS and HEALEY, JS.

Attack on `Heart Balm,'" 33 Mich. L. Rev. 979, 1000 (1935). See also Morris v. MacNab,
25 N.J. 271, 135 A.2d 657 (1957).

*370 Gordon R. Raynor, for the appellant (plaintiff).

In Mack v. White, 97 Cal. App. 2d 497, 500-501, 218 P.2d 76 (1950), the plaintiff
Diane D. Ruben, for the appellee (defendant).

transferred property to the defendant upon his promise to marry her; he never intended
to do so and the plaintiff sought return of the property. In awarding judgment to the
plaintiff the court pointed out that the action was not one for breach of promise to marry

BOGDANSKI, J.

but was "an action for obtaining money upon fraudulent representations" and was
therefore not within the terms of the California Heart Balm Act. See also Norman v.

This appeal involves the sufficiency of the second count set forth in the plaintiff's

Burks, 93 Cal. App. 2d 687, 209 P.2d 815 (1949).

complaint. In essence, it alleges that as the result of fraudulent representations made by

the defendant to the plaintiff to the effect that she would marry him and that they would

The Supreme Court of Pennsylvania, in an opinion construing a similar statute, declared:

occupy, as their home, the house owned by the defendant, the plaintiff was induced to

"The act was passed to avert the perpetration of fraud by adventurers and adventuresses

spend approximately $40,000 in renovating, improving and furnishing that house.

in the realm of heartland. To allow [the defendant] to retain the money and property
which she got from [the plaintiff] by dangling before him the grapes of matrimony which

The defendant, asserting that the count was one not for fraud but for breach of promise

she never intended to let him pluck would be to place a premium on trickery, cunning

to marry and, as such, was outlawed by 52-572b of the General Statutes, moved to

and duplicitous dealing. It would be to make a mockery of the law enacted by the

strike it. The trial court granted the motion to strike the challenged count.

legislature in that very field of happy and unhappy hunting.

The court concluded that General Statutes, 52-572b, known as the "Heart Balm Act"

*372 "The Act of 1935 aimed at exaggerated and fictional claims of mortification and

(hereinafter the Act) bars the plaintiff's action. The Act, passed in 1967, which is before

anguish purportedly attendant upon a breach of promise to marry. The legislation was

this court for the first time, provides that: "No action shall be brought upon any cause

made necessary because of the widespread abuse of the vehicle of a breach of promise

arising after October 1, 1967, from alienation of affections or from breach of a promise to

suit to compel overly-apprehensive and naive defendants into making settlements in

marry."

order to avoid the embarrassing and lurid notoriety which accompanied litigation of that
character. The legislation was intended to ward off injustices and incongruities which

*371 An early discussion of the Heart Balm Acts pointed out that "courts cannot escape
the burden of construing legislation as sweeping as this, so as to eliminate the evils
aimed at without destroying rights not considered by the legislature, whose continued
existence may be important to society and to individuals." See Feinsinger, "Legislative

often occurred when, by the mere filing of breach of promise suits innocent defendants
became unregenerate scoundrels and tarnished plaintiffs became paragons of lofty
sensibility and moral impeccability. It was not unusual in threatened breach of promise

4
suits that the defendant preferred to buy his peace through a monetary settlement rather

deprivation of other opportunities to marry and for the loss of the pecuniary and social

than be vindicated by a trial which might leave his good name in shreds." Pavlicic v.

advantages which the marriage offered.

Vogtsberger, 390 Pa. 502, 508, 136 A.2d 127 (1957).

The plaintiff here is not asking for damages because of a broken heart or a mortified
The predominant view is that Heart Balm statutes should be applied no further than to

spirit. He is asking for the return of things which he bestowed in reliance upon the

bar actions for damages suffered from loss of marriage, humiliation, and other direct

defendant's fraudulent representations. The Act does not preclude an action for

consequences of the breach, and should not affect the rights and duties determinable by

restitution of specific property or money transferred in reliance on various false and

common law principles. In Re Marriage of Heinzman, 579 P.2d 638 (Colo. App. 1978),

fraudulent representation, apart from any promise to marry, as to their intended use. A

aff'd, 596 P.2d 61 (Colo. 1979); Gill v. Shively, 320 So. 2d 415 (Fla. App. 1975); Norman

proceeding may still be maintained which although occasioned by a breach *374 of

v. Burks, supra; Beberman v. Segal, 6 N.J. Super. 472, 69 A.2d 587 (1949); Pavlicic v.

contract to marry, and in a sense based upon the breach, is not brought to recover for the

Vogtsberger, supra.

breach itself. DeCicco v. Barker, supra.

Furthermore, the majority rule appears to be that a gift made in contemplation of

Denial of recovery of property transferred in contemplation of marriage is not necessary

marriage is conditional upon a subsequent ceremonial marriage; In Re Marriage of

to the accomplishment of the object of this legislation, and to so hold would have the

Heinzman, 596 P.2d 61 (Colo. *373 1979); DeCicco v. Barker, 339 Mass. 457, 159 N.E.2d

undesirable effect of placing it within the power of a recipient to renounce a promise and

534 (1959); Semenza v. Alfano, 443 Pa. 201, 279 A.2d 29 (1971); Pavlicic v. Vogtsberger,

yet retain property bestowed in anticipation of performance.

supra; Guffin v. Kelly, 191 Ga. 880, 14 S.E.2d 50 (1941); and that the existence of a Heart
Balm Act does not affect common law principles governing a gift to a fiancee made on
condition of marriage, which condition is broken by the donee. In Re Marriage of
Heinzman, supra, 64; Norman v. Burks, supra; Gill v. Shively, supra; Beberman v. Segal,
supra. See also annot., 24 A.L.R.2d 579, "Effect of Heart Balm Act," 16-18.

In sum, the gravamen of the second count is that the plaintiff was induced to transfer
property to the defendant in reliance upon her fraudulent representations that she
intended to marry him and that the property transferred would be used for their mutual
benefit and enjoyment. The plaintiff does not here assert that the defendant wronged
him in failing to marry him; rather, he is asserting that the defendant wronged him in

In our view, the Act was designed to do away with excessive claims for damages, claims

fraudulently inducing him to transfer property to her. The plaintiff's complaint is based

coercive by their very nature and, all too frequently, fraudulent in character; the purpose

on what the defendant did, and not on what she refused to do. The court erred in

was to prevent the recovery of damages based upon contused feelings, sentimental

granting the defendant's motion to strike.

bruises, blighted affections, wounded pride, mental anguish and social humiliation; for
impairment of health, for expenditures made in anticipation of the wedding, for the

There is error, the judgment is set aside and the case remanded with direction to
overrule the motion to strike.

5
In this opinion LOISELLE and HEALEY, Js., concurred.

property obtained through "trickery, cunning and duplicitous dealing," as the Pavlicic
court feared. Pavlicic v. Vogtsberger, 390 Pa. 502, 508, 136 A.2d 127 (1957). The plaintiff

PETERS, J. (dissenting). The plaintiff brought an action against the defendant on three
theories: breach of contract, fraudulent misrepresentation and unjust enrichment. The
defendant's motion to strike was granted with respect to the second count *375 only, the
count alleging fraudulent misrepresentation. I cannot agree with my brethren that the
trial court was in error in granting this motion to strike.

The language of General Statutes 52-572b, the "Heart Balm Act," does not, it is true,
provide clear guidance about what forms of actions are brought within its prohibition of
suits "from alienation of affections or from breach of a promise to marry." Nonetheless, I

is also entitled, regardless of our holding on count two, to recover property given on
condition of marriage, just as any plaintiff could recover any other gift given on
condition not fulfilled. That is the import of Brady v. Anderson, 110 Conn. 432, 438, 148
A. 365 (1930), and the holding of the majority of the American cases reported in Clark,
The Law of Domestic Relations 1.6 (1968), and annotation, "Rights in Respect of
Engagement and Courtship Presents when Marriage Does not Ensue," 46 A.L.R.3d 578611 (1972).

I would find no error.

do not believe that the statute's purpose to ban vexatious litigation arising out of aborted
plans to marry should be circumvented by a mere allegation that the defendant had no

In this opinion COTTER, C. J., concurred.

present intention that she (or he) would ever marry the plaintiff. It is entirely too easy to
make such an allegation, and as Professor Clark points out, entirely too likely that triers
of fact will fail to distinguish between breach of contract and intention not to perform a
contract. Clark, The Law of Domestic Relations 1.5, and esp. p. 17 (1968). In addition, I
fear that a cause of action in deceit carries with it the capacity to generate claims for

Loving v. Virginia
Citation. 388 U.S. 1, 87 S. Ct. 1817, 18 L. Ed. 2d 1010, 1967 U.S. 1082.

mental distress and punitive damages; see Brower v. Perkins, 135 Conn. 675, 680-81, 68
A.2d 146 (1949); that will only exacerbate the opportunity for blackmail that the Heart
Balm Act was intended to prevent. For these reasons, recognizing the fact that the case
law is divided, I would prefer to follow the cases such as Thibault v. Lalumiere, 318

Brief Fact Summary. The state of Virginia enacted laws making it a felony for a white
person to intermarry with a black person or the reverse. The constitutionality of the
statutes was called into question.

Mass. 72, 75-76, 60 N.E.2d 349 (1945), that deny relief for suits based upon fraud. Clark,
op. cit., p. 17.

Even if the second count of the plaintiff's complaint is struck, as I believe it should be,
the plaintiff is far from remediless. Since the plaintiff would still be able to proceed in his
count for unjust enrichment, the defendant will not be able to retain money *376 or

Synopsis of Rule of Law. Restricting the freedom to marry solely on the basis of race
violates the central meaning of the Equal Protection Clause.

6
Facts. The state of Virginia enacted laws making it a felony for a white person to
intermarry with a black person or a black person to intermarry with a white person. The
Supreme Court of Appeals of Virginia held that the statutes served the legitimate state
purpose of preserving the racial integrity of its citizens. The State argued that because
its miscegenation statutes punished both white and black participants in an interracial
marriage equally, they cannot be said to constitute invidious discrimination based on
race and, therefore, the statutes commanded mere rational basis review.

are obligated to pay support for. Appellant was unable to receive court permission under
the statute and brought suit on behalf of all residents similarly situated.

Issue. Was rational basis the proper standard of review by which to evaluate the
constitutionality of the statutes?

Facts. Appellee Redhail was unable to enter into a lawful marriage under a Wisconsin
statute that did not permit a resident to marry without court permission if he has a
minor issue not in his custody which he is obligated to pay support by court order. The
statute allowed court permission only if the marriage applicant submits proof of
compliance with the support obligation and additionally demonstrates that the children
covered by the support order are not then or likely thereafter to become public charges.
In 1972 when appellee was a minor high school student he was found to be the father of a
baby girl born out of wedlock and ordered to pay monthly support. Appellee was
unemployed and indigent until 1974, and unable to make payments.
In 1974 appellee applied for a marriage certificate with appellant Zablocki, a county
clerk. The application was denied due to appellees failure to obtain the required court
order. It was stipulated that appellee was in arrearage on his payments and his child had
been a public ward since birth, therefore he was unable to satisfy the requirements for a
court order. Appellee filed his complaint on behalf of himself and all similarly situated
Wisconsin residents.

Were the Virginia miscegenation statutes constitutional under the Equal Protection
Clause?

Held. No and No.

The mere fact that a statute is one of equal application does not mean that the statute is
exempt from strict scrutiny review. The statutes were clearly drawn upon race-based
distinctions. The legality of certain behavior turned on the races of the people engaging
in it. Equal Protection requires, at least, that classifications based on race be subject to
the most rigid scrutiny.
The Equal Protection Clause of the United States Constitution (Constitution) prohibits
classifications drawn by any statute that constitutes arbitrary and invidious
discrimination. The fact that Virginia bans only interracial marriages involving whites is
proof that the miscegenation statutes exist for no purposes independent of those based
on arbitrary and invidious racial discrimination.
Concurrence. Justice Potter Stewart (J. Stewart) argued it is not possible for a state law
to be valid, which makes the criminality of an act depend upon the race of the actor.
Discussion. The key to this case is articulated in J. Stewarts concurrence. The
miscegenation statute was improper because it made the legal consequences of an action
turn on the races of the persons participating in it.

Zablocki v. Redhail
Citation. 434 U.S. 374,98 S. Ct. 673,54 L. Ed. 2d 618,1978 U.S.
Brief Fact Summary. A Wisconsin Statute forced individuals to receive court
permission in order to marry if they have a minor issue not in their custody which they

Synopsis of Rule of Law. If a statute significantly interferes with the exercise of a

fundamental constitutional right, it must be supported by sufficiently important state
interests and closely tailored to effectuate only those interests. Such interests are subject
to strict scrutiny or critical examination.

Issue. Is a Wisconsin statute that provides that members of a certain class of residents
cannot marry, within the State or elsewhere, without first obtaining a court order
granting permission to marry constitutional?
Held. The statute is unconstitutional because it significantly interferes with the exercise
of a fundamental right and is not supported by sufficiently important state interests and
is not closely tailored to effectuate only those interests.
The court employs a critical examination of the state interests advanced in support of the
statute because the right to marry is of fundamental importance. Previous court
decisions have confirmed that the right to marry is protected by the Due Process Clause
of the Fourteenth Amendment.
Although reasonable restrictions that do not significantly interfere with the right to
marry may be imposed, the present statute absolutely prevents some in the protected
class from obtaining the required order, and places sufficient burdens and significant
intrusions on others.
Appellant claims that the statute supports the States interest in counseling the applicant
as to the need of fulfilling his prior support obligations and protects the welfare of the
out-of-custody children. The first claim is faulty because even if counseling is provided

7
there would be no interest in continuing to withhold permission to marry after
counseling is completed. The second is faulty for two reasons. First, if the individual is
unable to meet payments, the statute simply prevents marriage without providing any
money to the minor children. Second, the State has numerous other means for extracting
the payments.
There is also suggestion that the statute prevents applicants from incurring new support
obligations. However, this is underinclusive because it limits only the new financial
commitments arising out of a marriage and overinclusive because in many cases the
income from the new spouse may increase the applicants ability to pay. The statute may
only result in more children being born out of wedlock.
Concurrence.
Justice Stewart. The majoritys reliance on the Equal Protection Clause is misplaced
because it is intended to deal only with invidiously discriminatory classifications. The
Due Process Clause protects the liberty right to marriage, and protection of the States
interests must fall short of not permitting poor people to marry.

Issue:
Whether an agreement for the wife to provide support for the husband is valid.
Holding:
No. Against public policy.
Reasoning:
Even if the contract is otherwise within the contractual power of the parties it
is void because it contravenes public policy.
While there appears to be no Michigan decision directly in point, the principle
is well stated in the Restatement of the Law of Contracts:
A bargain between married persons or persons contemplating
marriage to change the essential incidents of marriage is illegal.

Justice Stevens. The Wisconsin Legislature incorrectly assumed that (a) only fathers
would be affected by the legislation and (b) they would never marry employed women.
The Statute cannot withstand scrutiny under the Equal Protection Clause of the
Fourteenth Amendment.

Here, as a result of the marriage contract, the court found that a husband has a
duty to support and live with his wife.
Basically, this case said that you cant contract around the public policy of

Discussion. The majority finds the statute to violate constitutional protections under
both the Due Process and Equal Protection Clauses. The Concurrences appear to differ
mainly on which of these two clauses is more applicable.

requiring the husband to support the wife.

Prof: This case about gender roles is probably not good law.
Rule: A bargain between married persons or persons contemplating marriage to change

Graham v. Graham
33 F.Supp. 936 (E.D. Mich. 1940)
Facts:

This is a suit by a man against his former wife upon the following written
agreement by the parties:
For valuable consideration Margrethe Graham hereby agrees to pay

to Sidney Graham the sum of Three Hundred ($300.00) Dollars per month each and
every month hereafter until the parties hereto no longer desire this arrangement to
continue.

the essential incidents of marriage is illegal.

8
Dunn v. Palermo

522 S.W.2d 679 (1975)

her husband, or have her name purged from the registration records. The Registrar was
prompted by Sec. 2-206, T.C.A. which reads in pertinent part as follows:

Winfield DUNN et al., Appellants, v. Rosary T. PALERMO, Appellee.

2-206. Acts purging registration Notice. The registration of a person shall be purged: (a)
Supreme Court of Tennessee.

April 7, 1975.

R.A. Ashley, Jr., Atty. Gen., Robert H. Roberts, Advocate Gen., Nashville, for appellants.

* * * (b) Ninety (90) days after he changes his name by marriage or otherwise;

Upon her refusal to so register, her name was purged from the registration list. Thus this
action, wherein appellee seeks a declaratory judgment declaring that the defendants'
interpretation of Sec. 2-206, is erroneous, or in the alternative that this statute be

Martha Craig Daughtrey, Jayne Ann Woods, Nashville, for appellee.

declared violative of the Due Process and Equal Protection Clauses of the Fourteenth
Amendment, and of the Nineteenth Amendment to the Constitution of the United States.

OPINION
The Chancellor held: (1) that under the common law a married woman had the right to
HENRY, Justice.

assume her husband's surname but she acquired his name by repute and not by
operation of law; (2) that Sec. 2-206 does not operate to change the name of a woman at

This action presents the question of whether it is mandatory that a married woman
assume the name of her husband.

I.

Rosary T. (Rose) Palermo is a Nashville lawyer. On 29 September 1973 she married

Denty Cheatham, also a Nashville lawyer. She has continued to use and enjoy her
maiden name, Palermo, professionally, socially and for all purposes.

*680 Tennessee has a state-wide, compulsory Registration Law.[1] Subsequent to her

marriage, she lodged with the Registrar a change of address form listing her name as
Palermo. She was advised that she was required to register anew under the surname of

marriage to that of her husband; and, (3) that the action of the Registrar in purging the
plaintiff's name was error and based upon an erroneous interpretation of the law.

Defendants have appealed, and insist that the statute dictates that a woman
automatically take her husband's name upon marriage and that this was a requirement
of the common law.

The conclusions we reach necessarily involve a consideration of the statutory laws of the
state, the common law and the relevance of custom, usage and tradition.

II.

9
Tennessee has no statutory enactment providing in haec verba that a woman

A name is a word or phrase that constitutes the distinctive designation of a person or

automatically assumes her husband's surname upon the event of marriage.

thing. Webster's New Collegiate Dictionary (8th ed. 1974).

The statute under consideration, standing alone, does not mandate a change of name by

A person's first name is generally known as his given, Christian or proper name and is

marriage. It merely recognizes the prevalence of the virtually universal custom under

awarded at, or soon after birth. His surname, patronymic or family name is that which is

which a woman normally adopts the surname of her husband. Moreover, it is equally

derived from the common name of his parents, or is borne by him in common with other

susceptible of the construction that when either party to the civil contract of marriage

members of his family.

elects to use the name of the other, the registration will be changed.
The history of the use of names, in England, the country that has had the greatest
Sec. 59-708(d), T.C.A., relating to drivers' licenses, provides for notification of the

influence upon the customs of the United States, and the source of our common law, is of

Department of Safety "when the name of a licensee is changed by marriage" of the

interest and relevance.[2]

"former and new names." Again this statute merely takes cognizance of custom and does
not mandate a change.

Until about the time of the Norman Conquest, during Eleventh Century England, there
was no such thing as a surname or family name, and each person was identified only by

Change of name is authorized in adoption proceedings. (Sec. 36-101 et seq, T.C.A.)

his Christian or given name. This led to substantial confusion resulting from the paucity
of given names.[3] The custom of using surnames developed slowly with only sporadic

The lackadaisical policy or relative insignificance of a change of name under Tennessee

Law is best demonstrated by reference to Sec. 23-801, T.C.A., et seq, governing such
changes. No standards, guidelines or criteria are established. All that is required is that a
live person file a sworn application in the proper court of the county of his residence
"giving his reasons for desiring the change." There is no requirement that the reasons be
good and sufficient; just that they be given. We assume that a married woman not
enamoured with *681 the custom, could get her name changed by "giving his reasons."

Finally, in divorce cases, courts may restore the wife's maiden name.

use of such names until the practice became prevalent about the beginning of the
fourteenth century. A man was designated, in addition to his Christian name, in the
great majority of cases, by the name of his estate, the place he was born, where he lived,
or whence he had come, or by his calling as John the Smith, or William the Taylor, in
time abridged to John Smith and William Taylor. Sometimes the occupation became the
family name. A son would be distinguished from his father by calling him John's-son or
William's-son. The Normans added "Fitz" to the father's Christian name to designate the
son, as Fitzgerald or Fitzhugh. Among the Celts of Ireland and Scotland, where each clan
bore a surname, "Mac" was added to distinguish the son and "O" to distinguish the

We proceed next to a discussion of the common law.

grandson, resulting in MacDonald and O'Donnell. Men also adopted surnames based
upon physical characteristics (Long, Short), colors (Brown, Black), or moral attributes

III.

(Wiley, Moody, Wise), or of birds, animals or plants (Martin, Fox, Rose). This is a brief

10
synopsis of the interesting developments of surnames. By the fourth year of the reign of

All laws and ordinances now in force and use in this Territory, not inconsistent with this

Edward IV (1465), statutes were adopted requiring the use of surnames.

constitution, shall continue to be in force and use in this State, until they shall expire, be
altered, or repealed by the legislature.

Apparently, surnames were adopted and abandoned at will, and it was not unusual for
one person to have several surnames in the course of a lifetime. No requirement or

Subsequent constitutions have contained substantially the same provisions.[9]

custom demanded that a woman adopt the surname of her husband, and early records
showed that husband and wife often were known by different surnames.[4]

The family group did not necessarily use the same surnames, and men sometimes
adopted the surnames of their wives.[5] Property sometimes entered into the picture,
and it was not uncommon for children to adopt the mother's name where she owned the
most property or had the largest estate.[6]

We adopted the common law:

(A)s it stood at (1776) and before the separation of the colonies ... (it) being derived from
North Carolina, out of which state the State of Tennessee was carved. The Acts of North
Carolina, 1715, c. 31, and Acts of North Carolina, 1778, c. 5, preserved the common law,
while Session Act 1789, c. 3 provided for its continuance in the State of Tennessee.
(Parenthetical date supplied).

*682 The common law tended to place more stress on the baptismal than the surname.
Coke instructs us:

Quarles v. Sutherland, 215 Tenn. 651, 389 S.W.2d 249 (1965); Smith v. State, 215 Tenn.
314, 385 S.W.2d 748 (1965).

And regularly it is requisite ... that speciall heed bee taken to the name of baptism for
that a man cannot have two names of baptism as he may have divers surnames.[7]

Thus it is that Tennessee, through North Carolina, adopted the common law of England
as it existed in 1776. Case law research is next to impossible and text treatment in a

In Button v. Wrightman, Poph. 56 (1682), it was said:

relatively minor area of the common law is rendered extremely difficult by virtue of the
antiquity of the cases. We can only turn to earlier English works and to the decisions

The law is not so precise in the case of surnames, but for the Christian name, this ought

from other jurisdictions.

always to be perfect.[8]
Volume 12, Encyclopedia of the Laws of England, 53 (1898 London), under the heading,
Up to this juncture we have been primarily concerned with historical developments. We

Surname, reads in pertinent part:

now turn to legal authorities.

A person usually bears the surname of his father, but if he so pleases he may change it
The Tennessee Constitution of 1796, (Art. 10, Sec. 2) provided:

for another name, and it is not necessary that he should take any formal step to
effectuate this (Davies v. Lowndes, 1835, J. Bing. N.C. 618) unless, indeed he changes his

11
name in compliance with the injunction of a name and arms clause ... * * * * * * Except

In English law, contrary to the law of most countries, there are no rules about legal

where the name to be assumed is prescribed by a name and arms clause, a person is at

names. The surname of any person, male or female, is the name by which he or she is

liberty to choose and bear any name he likes. * * * * * * A woman on her marriage takes

generally known, provided that the name was not assumed for any fraudulent purpose. It

her husband's name, and she retains it although the marriage may have been dissolved

follows that, if a man and a woman are cohabiting without marriage it is perfectly

by divorce unless she has so far obtained another name by repute as to obliterate the

possible and not unusual for the woman to assume the same surname as the man. She

original name. (Emphasis added). (Fendall v. Goldsmid, 1877, 2 P.D. 263).

usually does this by executing a deed poll declaring the name by which she wishes to be
known. This is usually referred to as "changing one's name by deed poll". In fact the

The acquisition of a surname by repute figures very prominently in a change of name

under English law.

The case of Cowley v. Cowley, (1901) A.C. 450, was heard before the House of Lords.
Lady Cowley divorced Lord Cowley and married a commoner. Lord Cowley sued to
restrain her from bearing his *683 name and arms. During the course of the

name is not changed by the deed poll. The name is changed by the reputation, of which
the deed poll is good evidence.

The better opinion seems to be, and this is accepted by the learned editors of the latest
edition of Halsbury's Laws of England, that the assumption by a woman of her husband's
surname on marriage is a matter of custom and not of law. (emphasis supplied)

deliberations, Lord Lindley said:

We now examine and analyze cases from various American jurisdictions. As will be seen,
Speaking generally, the law of this county allows any person to assume and use any
name, provided its use is not calculated to deceive and to inflict pecuniary loss.

In Vol. 19, Halsbury's Laws of England, 3rd ed., at page 829, Sec. 1350, it is said, among
other things:

When a woman on her marriage assumes, as she usually does in England, the surname
of her husband in substitution for her father's name, it may be said that she acquires a
new name by repute. The change of name is in fact, rather than in law, a consequence of
the marriage. (Emphasis added)

the opinions in these cases are not in harmony either as to results or as to the particular
court's view with respect to the common law.

Virtually all cases holding that a woman changes her name by marriage are bottomed on
a faulty construction of Chapman v. Phoenix National Bank of N.Y., 85 N.Y. 437 (1881).
This was a case wherein a woman sought to have a confiscation proceeding set aside
because it was brought in her maiden name, her insistence being that it was invalid for
lack of notice. Chapman was a North Carolina school teacher. She had purchased stock
in the Phoenix Bank prior to her marriage, with the certificates being in her maiden
name. Dividends were paid to her until January 1, 1861. Thereafter, the War between the

In Volume 20, American Journal of Comparative Law, page 606 (1972) it is said:

States ensued, but Chapman took no part in what the New York Court injudiciously and
with palpable historic ignorance called "the rebellion." In February 1864 the Bank was
notified that her stock and all accrued dividends were seized. Thereafter the United

12
States Attorney filed a libel alleging that the stock belonged to "a rebel" and had been

The appellants rely upon Roberts v. Grayson, 233 Ala. 68, 173 So. 38 (1937), insisting, in

bought and used for the purpose of aiding, abetting and promoting "insurrection and

brief, that it holds that "a woman's maiden name ceases upon her marriage, and she

rebellion."

ceases to be known thereby". With utmost deference to counsel we find nothing in the
case to support this assertion. This case involved a claim against a decedent estate in

This case, in current parlance, probably should be denoted as "The Case of the Busy
Lady". It was alleged that she had acted as an officer of the rebel army and navy, as a
member of the Confederate Congress, as a judge, commissioner and agent of the

which the deceased Hattie W. Jones, was designated as Mrs. J.C. Jones. The whole
thrust of the Court's holding was that the name used was sufficient to give notice
stimulating inquiry. As a part of the holding the Court stated:

Confederate States, and as a member of a convention and judge of some one of the
Confederate States. All these allegations were false.

(A) married woman's name consists, in law, of her own Christian name and her
husband's surname.

Chapman, having no notice of the ensuing attachment and seizure, did not show up in
court and default judgment was entered. When she learned of this action a year later, she

Roberts very obviously does not raise the question or discuss or decide the issue of

brought suit.

whether a married woman automatically, and as a matter of law, assumes the surname
of her husband.

The court denounced the sufficiency of the notice on numerous grounds. Among *684
other things, it was held that there was no possibility of her having received the notice

Appellants also rely upon the case of Peoples ex rel. Rago v. Lipsky, 327 Ill. App. 63, 63

and she was "within the Confederate lines" and "could not have crossed the lines to

N.E.2d 642 (1945), which is precisely in point.

respond thereto." To bolster the court's holding that she was "in no way brought into
court," the effect of the stock being held in the maiden name of a married woman was
considered. In this connection the court said:

Rago, a Chicago lawyer, who used her maiden name professionally, socially and
exclusively after her marriage, was denied permission to remain registered under her
maiden name. The Illinois statute is substantially the same as that of Tennessee,

For several centuries, by the common law among all English speaking people, a woman,

providing that "Any registered voter who changes his or her name by marriage ... shall be

upon her marriage, takes her husband's surname. That becomes her legal name, and she

required to register anew ..."[10]

ceases to be known by her maiden name. By that name she must sue and be sued, make
and take grants and execute all legal documents. Her maiden surname is absolutely lost,
and she ceases to be known thereby. (emphasis supplied)

This dictum was a triumph for this lady, but a travesty and a tragedy for her sex.

The Court held the statute made it mandatory for Rago to re-register under the surname
of her husband. Relying upon Chapman and other authorities, the Court said:

13
(I)t is well settled by common-law principles and immemorial custom that a woman

name he may choose so long as such change is not for fraudulent purposes.' * * * * * * "In

upon marriage abandons her maiden name and takes the husband's surname, with

England, from which came our customs with respect to names, a woman is permitted to

which is used her own given name.

retain her maiden surname upon marriage if she so desires. "M. Turner-Samuels, in his
book on `The Law of Married Women' at page 345, states: "`In England, custom has

Further, the Court refers to

(T)he long-established custom, policy and rule of the common law among Englishspeaking peoples whereby a woman's name is changed by marriage and her husband's
surname becomes as a matter of law her surname. (Emphasis supplied)

Our attention is called to an opinion rendered on February 13, 1974 by the Attorney
General of Illinois, wherein he states:

long since ordained that a married woman takes her husband's name. This practice is
not invariable; nor compellable by law. * * * A wife may continue to use her maiden,
married, or any other name she wishes to be known by. * * *' * * * * * *

Krupa is the primary American authority cited in support of Stuart v. Board of

Supervisors, infra, and is said to be "the only previous American decision to approach
the issue of married women's surnames from the general context of the legal history of
surnames and to bring a searching common law analysis to bear upon the qeustion".[11]

I am aware of the decision in People ex rel. Rago v. Lipsky, 327 Ill. App. 63, 63 N.E.2d
642, which holds that it is well settled by common-law principles and immemorial
custom that a woman takes the surname of her husband. I do not believe this appellate
decision should control. The other Illinois decisions and cases elsewhere establish that a
woman may in fact retain her own name upon *685 marriage with or without court
proceedings. (emphasis supplied)

Appellee places heavy reliance upon State ex rel. Krupa v. Green, 114 Ohio App. 497, 177
N.E.2d 616 (1961), which fully supports her position. This was an action seeking to
prohibit a Board of Elections from placing the maiden name of a married woman on the
ballot. The court in pertinent part said:

"It is only by custom, in English speaking countries, that a woman, upon marriage,
adopts the surname of her husband in place of the surname of her father. * * * * * * "The
Supreme Court of Ohio in the case of Pierce v. Brushart, 153 Ohio St. 372, at page 380,
92 N.E.2d 4, at page 8, said: "`It is universally recognized that a person may adopt any

Appellant cites Wilty v. Jefferson Parish Democratic Executive Com., 245 La. 145, 157
So.2d 718 (1963). The facts are somewhat unique. Vernon J. Wilty, Jr. sought to prevent
his estranged wife's name from appearing upon the ballot as a candidate against him, as
Mrs. Vernon J. Wilty, Jr. He asserted that her correct legal name was Mrs. Laura Verret
Wilty. The court decided the issue in favor of the husband.

While we do not regard this case as being precisely in point, we include it because it has
been rather widely cited.

The Majority Opinion (the court produced five opinions) starts out by stating that "there
is no definite law or decision in Louisiana as to what is the legal name of a married
woman". Justice Sanders, concurring in the results, takes issue, saying:

Although unnecessary for the decision, the majority cites, with apparent approval, the
rule that by marriage a woman loses her maiden surname and takes her husband's
surname as her legal name. I am unable to agree that marriage has this effect under the

14
law of Louisiana. * * * * * * After marriage, the legal name of a woman continues to be

that the requirement that a married woman obtain a driver's license under her husband's

her maiden name, or patronym. The surname of the husband is used only as a matter of

surname found a rational basis in administrative convenience.[12] The Court does not

custom to indicate the marital status of the wife. (Emphasis supplied). See Succession of

discuss the existence of a rational basis for the common law requirement of Alabama, if

Kneipp, 172 La. 411, 134 So. 376.

there be such a requirement. There are other questions left unanswered, e.g., whether
sex is a "suspect classification."[13]

Kneipp is also widely cited in commentaries and cases but is not alluded to in the
majority opinion. Wilty is simply not authority as to the issue in the case sub judice. It is

Appellees place great reliance upon Stuart v. Board of Supervisors of Elections, 266 Md.

concerned solely with fairness in elections and as pointed out in the foregoing

440, 295 A.2d 223 (1972). Mary Stuart, a married woman, registered to vote under her

concurring opinion, the expressions with respect to the correct name of a married *686

maiden name. Upon her refusal to re-register under the surname of her husband, her

woman were unnecessary and are dicta.

registration was cancelled. As Rose Palermo, she had used her maiden name exclusively
and had never used her husband's surname.

Appellant strongly relies upon Forbush v. Wallace, 341 F. Supp. 217 (M.D.Ala. 1971).
This class action, heard by a three-judge panel, challenges a requirement of the Alabama

In upholding her right to register under her maiden name, the Maryland Court of

Department of Safety that a married woman use her husband's surname on her driver's

Appeals, in a brilliant and scholarly opinion by Chief Judge Murphy said:

license, and asserts that such a requirement violates the equal protection clause of the
Fourteenth Amendment.

We have heretofore unequivocally recognized the common law right of any person,
absent a statute to the contrary, to "adopt any name by which he may become known,

Citing Roberts v. Grayson, the Court notes that "Alabama has adopted the common law

and by which he may transact business and execute contracts and sue or be sued."

rule that upon marriage the wife by operation of law takes the husband's surname." The

Romans v. State, 178 Md. 588, 597, 16 A.2d 642, 646. * * * * * * Consistent with the

Court also observes:

common law principle referred to in the Maryland cases, we hold that a married
woman's surname does not become that of her husband where, as here, she evidences a

Certainly the custom of the husband's surname denominating the wedding couple is one
of long standing. While its origin is obscure, it suffices for our purposes to recognize that
it is a tradition extending back into the heritage of most western civilizations. It is a
custom common to all 50 states in this union. Uniformity among the several states in
this area is important. (emphasis supplied)

We agree that we are dealing with custom and tradition. This is all Forbush actually
stands for insofar as Rose Palermo's suit is concerned. The Forbush court actually held

clear intent to consistently and nonfraudulently use her birth given name subsequent to
her marriage. Thus, while under Romans a married woman may choose to adopt the
surname of her husband this being the longstanding custom and tradition which had
resulted in the vast majority *687 of married women adopting their husbands' surnames
as their own the mere fact of the marriage does not, as a matter of law, operate to
establish the custom and tradition of the majority as a rule of law binding upon all. From
a study of the English authorities cited to us by the parties and amici curiae, we believe

15
the rule we enunciate today is founded upon the English common law incorporated into

In the recent case of Application of Halligan [for Leave to Change Her Name to Sara

the laws of Maryland by Article 5 of the Maryland Declaration of Rights. (Emphasis

Ryan], (1974) 46 A.D.2d 170, 361 N.Y.S.2d 458, a unanimous court held that Sara Ryan,

supplied)

married one Halligan, had the right to be known as Sara Ryan and by no other name,
despite the marriage. No reference was made to the Chapman case.

In Custer v. Bonadies, 30 Conn.Sup. 387, 318 A.2d 639 (1964), the Supreme Court of
Connecticut followed Stuart and Krupa, supra.

And yet the erroneous statement of the common law in Chapman formed the predicate
for a substantial number of decisions misinterpreting the common law of England.

Our investigation has led us to the case of Application of Wallace, 319 A.2d 793 (N.J.
1974), wherein a married woman petitioned the Court for permission to resume the use

On the common law theory of marriage the Court said:

of her maiden name. The Court held that she had assumed the husband's surname on
marriage and that to permit her to use her maiden name should be denied in the light of
the confusion which would be created if children were born of the marriage. This case
contains an excellent and exhaustive review of the authorities on each side of the
question here presented.

It is undoubtedly true that the tendency of a wife to take her husband's surname was
spawned by the common law theory of marriage. Under that theory, upon marriage, a
man and a woman became one and that one was the husband. In view of that theory of
marriage, it is perhaps surprising that the English common law, out of which grew the
theory of coverture, did not require that the husband's surname be assumed in all cases

One day following oral argument in Rose Palermo's case, the Supreme Court of

by the wife. On the contrary, however, when the wife did assume the husband's name, it

Wisconsin released its opinion in Kruzel v. Podell, 226 N.W.2d 458 (Wis. 1975). Rose

was a matter of custom or practice and not of law.

Kruzel, a married woman, petitioned the Court for change of name in order that she
might use her maiden name. She had consistently and exclusively used her maiden
name. The Court, in a most comprehensive opinion, held that "a woman upon marriage
adopts the surname of her husband by thereafter customarily using that name, but no
law requires that she do so. If she continues to use her ante-nuptial surname, her name
is unchanged by the fact that marriage has occurred."

Based upon an intensive investigation into the law from which we distill the cases herein
cited and upon excellent and elaborate briefs submitted by counsel for the respective
parties we conclude that at the common law, as of the time of the separation of the
colonies, a woman acquired a new name by repute and that her name was thus changed
in fact and not in law. The name change came as a result of custom and usage. It was
windblown across the Atlantic Ocean in the same form and has become a universal

We are indebted to the Wisconsin Court for calling our attention to a recent New York

practice in this country. But it has never had the force of *688 law in Tennessee either

case, which casts doubt upon the precedent of the Chapman dicta. In this regard the

under our common law or statutes.

Court said:
We frankly concede that there is a division of authority as to this question. We are
persuaded that we have adopted the better view; however, we make no claim to judicial

16
infallibility. Irrespective of the common law, we hold that there is no legal requirement

under a form of societal compulsion and economic coercion which has not been

in Tennessee that a married woman automatically assume the surname of her husband.

conducive to the assertion of some rights and privileges of citizenship. The application of
a rule of custom and its conversion into a rule of law, would stifle and chill virtually all

This Court in the past has not hesitated to depart from the rigid common law where "the
reason for the common law rule does not exist." Brown v. Shelby, 206 Tenn. 71, 332
S.W.2d 166 (1960).

The common law does not have the force of Holy Writ; it is not a last will and testament,
nor is it a cadaver enbalmed in perpetuity, nor is it to be treated like the sin of Judah
"written with a pen of iron and with the point of a diamond." Jeremiah 17:1.

Former Chief Justice Frantz of Colorado, in his dissenting opinion in Tesone v. School
Dist. No. Re-2, In County of Boulder, 152 Colo. 596, 384 P.2d 82 (1963), made this
erudite observation on the common law:

progress in the rapidly expanding field of human liberties. We live in a new day. We
cannot create and continue conditions and then defend their existence by reliance upon
the custom thus created. Had we applied the rules of custom during the last quarter of a
century, the hopes, aspirations and dreams of millions of Americans would have been
frustrated and their fruition would have been impossible.

We are admonished that permitting a married woman to retain her maiden name would
result in chaos and confusion. In point of fact, permitting a married woman to retain her
own name, would eliminate substantial administrative problems incident to a change of
name. With the rapid increase of divorces and re-marriages in America today, with
attendant name changes, we may reach the point of having to forbid a change of name by

"The common law of America is evolutionary; it is not static and immutable. It is in

marriage in order to bring about stability, reduce confusion and preserve the identity of

constant growth, going through mutations in adapting itself to changing conditions and

women who acquire a different name from each successive husband.

in improving and refining doctrine. By its very nature, it seeks perfection in the
achievement of justice."

This is an eloquent description of the greatness and the glory of the common law.

IV.

In summary, we hold that in this jurisdiction a woman, upon marriage, has a freedom of
choice. She may elect to retain her own surname or she may adopt the surname of her

We are urged to the conclusion that the custom of women adopting the surnames of

husband. The choice is hers.

their husbands has ripened into law and that, therefore, a wife is under a legal duty to
adopt her husband's surname. Quite aside from the fact that the law of customs relates
essentially to commercial transactions, there is for consideration the fact that the mere
custom of married women adopting their husband's surnames, does not necessarily
imply a rejection of their own names. We are cited to no case where the non-user of a
name works a forfeiture of the right to its use. Moreover, married women have labored

We hold that a person's legal name is that given at birth, or as voluntarily changed by
either spouse at the time of marriage, or as changed by affirmative *689 acts as provided
under the Constitution and laws of the State of Tennessee. So long as a person's name
remains constant and consistent, and unless and until changed in the prescribed
manner, and absent any fraudulent or legally impermissible intent, the State has no
legitimate concern.

17
We hold that appellee's legal name is Rosary T. Palermo.

Affirmed at the costs of appellants.

What we have said has no bearing on the continuing right of any individual to the use of

FONES, C.J., and COOPER, BROCK and HARBISON, JJ., concur.

a "stage name", or "pen name", or any designation by which he or she desires to be

known in any trade, business, occupation or profession.

We do not reach the constitutional issues.

NOTES