Opinion
No. 35460.
December 20, 1943.
1. MARRIAGE.
The marriage of the parties raised a presumption that the former marriages of both of them had been dissolved, either by death or divorce, and the burden of overcoming such presumption rested on parties asserting the contrary.
2. MARRIAGE.
Where there was no evidence that decedent's former wives were living at the time of his subsequent marriage or that if living his marriages to them had not been dissolved by divorce, the presumption that such marriages were dissolved by death or divorce became conclusive.
3. MARRIAGE.
The presumption arising from a subsequent marriage that prior marriage to a person living at time of subsequent marriage had been dissolved by divorce is one of the strongest presumptions known to the law, and will prevail unless overcome by competent evidence to the contrary.
4. MARRIAGE.
Where there was no proof that former husband lived in Mississippi most of the time between separation and wife's subsequent marriage to another, mere proof that no divorce had been granted in Mississippi was insufficient to overcome presumption arising from second marriage that prior marriage had been dissolved by divorce.
5. EXECUTORS AND ADMINISTRATORS.
Evidence sustained award of $250 to widow for support for one year on ground that separation of the parties was without fault of surviving widow (Code 1930, secs. 1664, 1667).
APPEAL from chancery court of Yazoo county, HON. M.B. MONTGOMERY, Chancellor.
Henry Barbour and Campbell Campbell, all of Yazoo City, for appellants.
General Vaughan's first two marriages are presumed to have terminated.
Walker v. Matthews, 191 Miss. 489, 3 So.2d 820; Amis on Divorce Separation, Sec. 53, p. 86-7.
There was no divorce between Amelia Nicholson and Jim Nicholson. The proof shows there was no divorce in Mississippi or Arkansas.
The court's presumption of a divorce between Amelia Nicholson and Jim Nicholson is erroneous.
Bennett v. State, 100 Miss. 684, 56 So. 777; Colored Knights of Pythias v. Tucker, 92 Miss. 501, 46 So. 51; Williams v. North Carolina, 87 L.Ed. 189; Pittinger v. Pittinger, 28 Colo. 308, 64 P. 195, 89 Am. St. Rep. 206; Arkansas Statutes (1903), Sec. 2678, Ch. LIV.
There was no valid ceremonial or common law marriage between Amelia Nicholson and General Vaughan.
Sims v. Sims, 122 Miss. 745, 85 So. 73; Thompson v. Clay, 120 Miss. 190, 82 So. 1.
The proof of Annie Vaughan's marriage to General Vaughan raised a presumption of a divorce between General and Amelia and that presumption is not overcome by proof.
Amelia Vaughan, not being supported by General Vaughan at the time of his death, is not entitled to a year's support.
Coffee v. Coffee, 145 Miss. 872, 111 So. 377; Byars v. Gholson et al., 147 Miss. 460, 112 So. 578.
Although the amount of the year's support is within the discretion of the court, it is error to allow a substantial excess over that formerly expended by the husband.
Gilmer v. Gilmer, 151 Miss. 23, 117 So. 371; Stewart v. Stewart et al., 132 Miss. 515, 96 So. 694; Haughton et al. v. Brandon, 40 Miss. 729.
H.F. Jones, of Belzoni, for appellee.
The deceased, General Vaughan, died intestate, and left no children to inherit, so his wife must inherit, if he had a wife, otherwise his estate would pass to collaterals.
The marriage career of General Vaughan discloses that he had married a wife, Mary Cross, May 2, 1902; thereafter he married Agnes Green, November 30, 1908. His third wife was Amelia Nicholson, May 5, 1917, and the fourth and last, Annie Claiborne, June 25, 1940.
At the time of General's marriage to Amelia, the third wife, on May 5, 1917, he had, as aforesaid, already been married to Mary Cross first, then later to Agnes Green. In addition to this difficulty it appears conclusively that Amelia had theretofore been married to one Jim Nicholson in 1893, had eight children by him and had separated from him in 1912. It appears as an undisputed fact that Jim Nicholson had deserted his wife and children, engaging in the trade of carpentry here and there, and that he did not write or let Amelia or his family hear from him until the year 1916 when he wrote to Amelia telling her he had been in Arkansas and had gotten a divorce from her and had married another woman and that she could marry if she wanted to. After this letter was received by Amelia she and General Vaughan married May 5, 1917. No one apparently knew where Jim Nicholson was during all the period from 1912 to 1916, until receipt of the letter aforesaid, and in it he claimed that he had obtained a divorce, also that he had been in Arkansas, and advised her that she might marry if she chose. After this, on May 5, 1917, Amelia and General were married, ceremonially. In the year 1919 Amelia went to the State of Arkansas to visit a sick daughter, and in going passed through Clarksdale, Mississippi, where she met her former husband, Jim Nicholson, and also his wife, at which meeting Jim again told the former wife, Amelia, that he had been in Arkansas, for which reason she had not been able to locate him. Amelia had lived in Yazoo County all the time between her separation from Jim Nicholson in 1912 and her marriage to General Vaughan in 1917. Jim Nicholson had lived in Drew, Mississippi, Sunflower County, some time in Clarksdale and a period in Arkansas, which latter residence is only shown by a letter stating this fact, and by oral statement of the fact, statements made in the letter of 1916 and orally in 1919, it is not definite as to whether he spent any of his time in any other state or not, as he may have done. Jim Nicholson from 1912 to 1937, when he died, followed the carpenter trade, in which occupation he drifted from place to place, but his wife made a home in Clarksdale, Mississippi. No divorce was obtained between Amelia and Jim in Humphreys or Yazoo Counties where the separation had taken place between Jim and Amelia and where Amelia had continued to live all the time to the time of Jim's death in 1937. No proof appears as to whether General was ever divorced from his first two wives prior to his marriage to Amelia.
The only question for a solution is whether or not General Vaughan was legally married to any of his four wives, ceremonially entered into by him.
General Vaughan and Annie Claiborne were living together as man and wife at the time of General's death on May 22, 1941.
When a marriage is duly proven, ceremonially performed, it will be presumed to be valid, although it may be shown that there is a former wife living, unless the party assailing it, that is the last marriage, prove the negative fact that no divorce has ever been granted the prior wife.
Alabama V.R. Co. v. Beardsley, 79 Miss. 417, 30 So. 660; McAllum v. Spinks, 129 Miss. 237, 91 So. 694; Ladner v. Pigford, 138 Miss. 461, 103 So. 218; Colored Knights of Pythias v. Tucker, 92 Miss. 501, 46 So. 51; Sullivan v. Grand Lodge Knights of Pythias, 97 Miss. 218, 52 So. 360; Howard v. Kelly, 111 Miss. 285, 71 So. 391, Ann. Cas. 1918E, 1230; Allen v. McIntosh Lumber Co., 117 Miss. 156, 77 So. 909; Hickman v. Hickman, 126 Miss. 469, 89 So. 6; Aldridge v. Aldridge, 116 Miss. 385, 77 So. 150; Watson v. Watson, 177 Miss. 767, 171 So. 701; Walker v. Matthews, 191 Miss. 489, 3 So.2d 820; Amis on Divorce and Separation, Sec. 53, pp. 86, 87.
Then the presumption of a valid marriage to Annie Claiborne by General Vaughan must be disproven, and in doing this it was shown that General Vaughan was ceremonially married to Amelia Vaughan (nee Nicholson), Amelia being in this court claiming to be the wife of General Vaughan, presented a certificate from Yazoo County, by the chancery clerk thereof that no suit for divorce was ever filed between General Vaughan and Amelia Vaughan, and the same in Humphreys County, where Amelia Vaughan claimed her place of residence. She testified also that she had never sued General Vaughan for a divorce anywhere and this was not contradicted. The only place where such a suit might possibily be brought, in the face of this proof, would have been a suit brought by General Vaughan in the County of Shelby, in the State of Tennessee.
It is argued that Amelia spent part of her time with a daughter in Memphis, Tennessee, and General could have sued for a divorce there. However, she would, if residing in Tennessee, have been a nonresident of the State of Mississippi, and Section 1417 of the Code of 1930 fixes jurisdiction of the chancery court of the complainant's residence, to-wit, Yazoo County. Would it not be foolish to presume that any attorney employed by General would have consumed the unnecessary time and expense of going into the State of Tennessee to sue for a divorce that could be legaly and so much more easily and inexpensively obtained in his home county of Yazoo or Amelia's home county of Humphreys?
A rule of law which allows an artificial or technical force to be given evidence, which warrants presumptions beyond the actual tendency of that evidence to convince the mind, and requires courts and juries to presume as true that which is probably false, cannot but be fraught with dangerous consequences.
Colored Knights of Pythias v. Tucker, 92 Miss. 501, 46 So. 51.
Our courts have placed upon the presumption the limitation that it should not and could not be indulged beyond the point where the apparentness of its truth is able to produce conviction in an unprejudiced mind and when to an unprejudiced mind that that which would otherwise be presumed as true from the naked presumption, appears from the proof to be probably false, the presumption yields, and the court will not stultify itself by giving any such evil and vicious effect to the presumption.
Colored Knights of Pythias v. Tucker, supra.
The law of this state does not justify the court in presuming the truth to be that General Vaughan, a negro farmer of very small means, as appears from the papers in this estate, went some 225 miles to Memphis and procured a divorce that he could have more certainly, more conveniently and much more inexpensively obtained in his home county of Yazoo. This court does not believe that any such improbable act in truth occurred. In addition, it is quite evident from the testimony that Amelia never was a resident of Tennessee anyway, but at all times was a resident of Mississippi and her trips to Memphis were only visits to her daughter.
The presumption in favor of the legality of the marriage of General Vaughan to Annie Claiborne was not supported by any evidence, but on the contrary was overcome by the showing that General Vaughan was not divorced from Amelia, nor she from him.
There was no legal marriage between Annie Claiborne and General Vaughan if he were actually or presumptively married to Amelia, because the negative proof was produced to the satisfaction to the mind of the court that no divorce had been procured either by General Vaughan from Amelia or Amelia from General. The uncontroverted proof is that Amelia never sued for a divorce from General at any place.
The presumption of a legal marriage to Amelia Vaughan arose as soon as performed as to the marriage of General Vaughan to both Mary Cross and Agnes Green, and also the marriage of Amelia Nicholson to General Vaughan. There must be evidence to overcome this presumption in each case, and no evidence was brought into court by respondents.
General Vaughan induced the petitioner, Amelia, to leave his home by a subterfuge or pretext and a promise that he was going to sell his place and come and live with her. He practically, against her will, forced her out of his house. The sum of $250 for a year's support is not excessive.
The appellee filed a petition in the court below, to which the administrator of the estate of General Vaughan, deceased, and Annie Claiborne Vaughan, who claims to be Vaughan's widow, were made defendants, alleging that she, and not Annie Claiborne, is Vaughan's widow, and praying for an allowance sufficient to support her for one year under sections 1664, 1667, Code of 1930, out of Vaughan's estate. The court granted the prayer of the petition, and allowed the appellee $250. The administrator and Annie Claiborne appeal and their complaints are: (1) That the evidence discloses that the appellee is not General Vaughan's widow, but if mistaken in that: (2) that she and Vaughan separated prior to his death and he was not supporting her then; and (3) the allowance is excessive. All the parties hereto are negroes.
The evidence discloses that Vaughan married Mary Maggie Cross in May, 1902, and Agnes Green in 1908. Both of these marriages were contracted pursuant to licenses issued therefor, and the record is silent as to what became of Mary Maggie and Agnes, whether they are living or dead, and whether or not their marriages with Vaughan were dissolved by divorce. On May 5, 1917, he married the appellee pursuant to a license issued therefor, and they lived together as man and wife in Yazoo County until some time in 1938 or 1939, as to which year the evidence is not clear. They then began and continued to live apart, and Vaughan contributed nothing thereafter to the appellee's support. In 1940 Vaughan married Annie Claiborne, who is now living, and died intestate in May, 1941, leaving as his only heir either the appellee or Annie Claiborne as the evidence discloses was his lawful wife at the time of his death.
The appellee was married to Nicholson in 1893, and lived with him as his wife in Yazoo County until some time in September, 1912, when he left and never returned to her. He remained for a time in a neighboring county, but how long does not appear, and his whereabouts thereafter until some time in January, 1917, is not disclosed except that in a letter from Nicholson to the appellee in January, 1917, or to her personally thereafter Nicholson said that he had been in Arkansas. In this letter Nicholson advised the appellee that he had secured a divorce from her, and that she was at liberty to marry again. He himself had then contracted, or thereafter did contract, a second marriage.
The marriage of the appellee and Vaughan raises a presumption that the former marriages of both of them had been dissolved either by death or divorce, the burden of overcoming which rested on the appellants. There being no evidence that Vaughan's former wives were living at the time of his marriage to the appellee, or that, if living, his marriages to them had not been dissolved by divorce, the presumption that they were dissolved by death or divorce becomes conclusive.
Nicholson was alive when the appellee married Vaughan, but the presumption arising therefrom that her marriage with Nicholson had been dissolved by divorce, which presumption "is one of the strongest known to the law," Colored Knights of Pythias v. Tucker, 92 Miss. 501, 46 So. 51, 52, will prevail unless the appellants have proven by competent evidence that her marriage with Nicholson had not been dissolved by divorce. It appears from the evidence that no divorce was granted to either the appellee or Nicholson in Mississippi, but that is not sufficient to overcome this presumption. In order for this to be done it was incumbent on the appellants to prove either that Nicholson lived continuously in Mississippi, or if he lived elsewhere for a sufficient length of time to have secured a divorce, that he did not secure one. This burden the appellant failed to meet, for it does not appear from the evidence where Nicholson lived for the greater part of the time between his separation from the appellee and her marriage to Vaughan, and for aught that here appears, he may have lived in another state or country for a sufficient length of time to have obtained a divorce there, and the presumption, in the absence of proof to the contrary, is that he did obtain such a divorce.
Although Vaughan had ceased to live with and support the appellee, the court below was warranted in believing from the evidence that this resulted from no fault of the appellee, but that the responsibility therefor was Vaughan's, and that his duty to support the appellee continued. The support fund allowed the appellee is clearly not excessive.
Affirmed.