Opinion
No. 37249.
November 28, 1949.
1. Marriage — ceremonial marriage — presumption raised by.
A ceremonial marriage raises a strong presumption that former marriages had been dissolved; places upon the party asserting the invalidity of the last marriage the burden of overcoming the presumption, and the presumption will prevail unless overcome by competent evidence to the contrary.
2. Evidence — judicial records of another state — certificate authenticating.
The judicial record of another state can be proved or admitted in the courts of this state as evidence of a fact only when there has been a compliance with the Act of Congress presently known as Sec. 687 Title 28 U.S.C.A., so that certificates of the clerks of courts in Cook County, Illinois, that no divorce had been granted in that county to a named party, were not admissible when not accompanied by a competent certificate that the person or persons who signed as clerks were in fact the clerk or clerks.
3. Marriage — subsequent marriages — presumption — descent and distribution.
Where a decedent has been ceremonially married three times, the wife by the last ceremony will be entitled to a child's part in decedent's estate in the absence of proof that the former marriages had not been dissolved, but a child of the first marriage, born during its presumable existence, will be deemed legitimate and entitled to a child's part in the absence of proof that the first marriage had theretofore been dissolved.
Headnotes as approved by McGehee, C.J.
APPEAL from the chancery court of Sunflower County; J.L. WILLIAMS, Chancellor.
Everett Sanders, for appellant, Percy Wallace.
The certificates from the Chicago courts were objected to by counsel for Anna Wallace, one of the claimants here. The objection to the Conroy certificate was two-fold; (a) the certificate "does not make clear that he (the clerk) made the examination himself of the records; (b) it is not shown by any authority at all that he is the clerk of that county".
The objection made to the introduction of the Henry Sonnenschein certificate was that "no proof has been offered to show that he is the clerk of the superior court of Cook County, Illinois," which objections were sustained by the court in the trial.
The court was wrong in sustaining these objections, which ruling of the court is the basis of assignments first and second, in the assignment of errors in this cause.
In the first place, the certificates themselves show on their faces the very thing the objection says they do not show. The John E. Conroy certificate is signed by a deputy, "John E. Conroy, Clerk of the Circuit court of Cook County, Illinois," and the seal affixed thereto is inscribed "CIRCUIT COURT COOK COUNTY, ILLINOIS." The certificate of HENRY SONNENSCHEIN is signed by him individually "HENRY SONNENSCHEIN CLERK OF THE SUPERIOR COURT OF COOK COUNTY, ILLINOIS", and the seal affixed thereto is inscribed, "SUPERIOR COURT OF COOK COUNTY, ILLINOIS".
Secondly, it was wholly unnecessary to offer independent proof that these men were the clerks of the respective courts. By Section 1726, Code 1942, it is provided: "Presumptions attending certain certificates. Any certificate, attestation, or authentication, purporting to have been made or given by any person as an officer of any state or of the United States, shall be prima facie evidence of the official character of such person."
Under this statute, no proof of their official character was necessary.
By Section 1727, Code 1942, it is provided: "Certificate of officer of search in office, admissible in evidence. — A certificate, under the hand and official seal, by the officer to whom the legal custody of a record or paper belongs, that he has made diligent search in his office for the record or paper, and that it cannot be found therein, shall be admissible in evidence, and have the same effect as if the officer personally testified to the facts stated in such certificate."
The only occasion for authentication is where records of foreign countries are to be offered in evidence. See Sec. 1747; and where the state has not adopted another method by statute, then the federal statute must govern. Our state has adopted by the statutes above cited the method of admitting papers when certified. Hawes v. State, 7 So. 302 (313 of the opinion).
This record shows that there was established by competent proof (a) a legal marriage between Percy Wallace and L.A. Wallace; (b) that they lived together as man and wife at Doddsville, Sunflower County, Mississippi, until she moved to Itta Bena, Leflore County, in 1938; (c) that she moved from Itta Bena to Chicago, Cook County, Illinois, in November, 1941; (d) that she lived continuously in Chicago until the time of the trial of this cause; (e) no proof was offered to show that Ida, the first wife was not divorced during the 21 or 22 years of her residency in Chicago.
When the proof showed a ceremonial marriage between L.A. Wallace and Percy Brown Wallace on January 6, 1919, under a license duly issued by the Circuit Clerk, the presumption immediately arose that a divorce had been granted as between L.A. and Ida. In Alabama Vicksburg Ry. Co. v. Beardsley, 79 Miss. 422 (of the opinion), this court held: "The law presumed the marriage of the appellee to be valid, in the absence of proof . . . that there had been no divorce from the first wife who was still living. This is a well settled rule. . . . When a marriage has been solemnized according to the forms of law, every presumption will be indulged in favor of its validity."
While there are many other authorities holding the same principle, we content ourselves with citing only one more authority, which is Vaughn v. Vaughn, 16 So.2d 23. There it is said the presumption arising that a former marriage had been dissolved by divorce, "is one of the strongest known to the law".
Then, before Anna, the other claimant, could establish any claim to the widowhood of L.A., she must overthrow that presumption existing in favor of Percy, and show a lawful marriage as between Anna and L.A. Wallace. This she did not offer any proof to the contrary to do. The case of Vaughn v. Vaughn, supra, lays down the pattern she must have followed.
The only proof Anna presented was a marriage license issued in Coahoma County, authorizing a marriage between her and L.A. Wallace. We challenge this record as being insufficient to establish a marriage between Anna and L.A. The certificate to this license attempting to show that the marriage ceremony was performed, shows that the same was signed by "L.W. Washington, 406 Yazoo Ave., Clarksdale". Who was Washington? Our statute, Section 2365 Code 1930 then in effect, now Section 463, Code 1942, provides who may perform a marriage ceremony. Those authorized are ministers of the gospel in good standing, the judge of the supreme court, the circuit court, chancellors, justices of the peace and members of the boards of supervisors, and no others. Washington did not sign as a minister, judge, justice of the peace or member of a board of supervisors, but only as L.W. Washington, 406 Yazoo Ave., Clarksdale. For aught this record shows he could have been a bootlegger or a crapshooter. He was advertizing his place of business, whatever that might have been, but not his profession or occupation when he signed this certificate. We think it insufficient to show a marriage.
P.J. Townsend, Jr., for appellee, Anna Wallace.
Although the legal presumption that a divorce between Ida and L.A. Wallace had been granted arose at the time of the ceremonial marriage between L.A. and Percy Wallace (Alabama Vicksburg Ry. Co. v. Beardsley, 79 Miss. 417, 30 So. 660), this presumption was overcome, and said ceremonial marriage was void. Walker v. Matthews, 191 Miss. 489, 3 So.2d 820. L.A. Wallace lived in Doddsville, Sunflower County, from October 13, 1913, until the time of his death, and no divorce was ever obtained in this county. Ida Buchanan Wallace lived in Sunflower County until 1919, and then moved to Belzoni, Humphreys County, where she resided for two or three years. The testimony and evidence as above stated clearly show that no divorce was granted to L.A. and Ida from 1913 to two or three years after 1919, either in Sunflower County or Humphreys County, thereby overcoming the presumption of the validity of the marriage of L.A. Wallace and Percy Brown Wallace on January 6, 1919.
No evidence was introduced on behalf of Percy Wallace, the appellant herein, to show that she ever lived with L.A. Wallace as his wife from and after the date of their pretended marriage.
Probably the leading case in Mississippi on this question as to the certificates is Hope v. Hurt, 59 Miss. 174 (1881), decided by the Supreme Court of Mississippi, wherein the question of whether or not the record from County Court of Shelby County, Tennessee, was in due form as presented. The record consisted of the copy of Letters of Administration granted to the plaintiff and a certificate that he was in that court accountable for the claim sued on, but it was certified to only by the clerk of the court under his seal of office and lacked the authentication of the presiding judge. In passing on this question the court said: "As we understand the Tennessee Statutes, Code of Tennessee 1858 (Meigs and Cooper) Sec. 2201, et seq., the letters of administration when issued of themselves constitute the appointment of the administrator, instead of being, as with us the private evidence or indicia of the appointment, and therefore these letters, if properly authenticated were a sufficient compliance with the requirements of Code 1880, Sec. 2091. But was the authentication defective because not in accordance with the act of Congress?
"It is said by Professor Greenleaf (1 Greenl. Evid., Redfield's ed., Sec. 505), that the mode of authentication prescribed by Congress is not exclusive of any other which the states may see proper to attempt, and the statements seem to be borne out by the decision of those states which have prescribed other methods of authentication, but our State has not done this. By Sec. 1622, Code of 1880, a mode of authenticating private writings which have been legally recorded in other states is provided and by Sec. 1629 it is enacted that the certificate on attestation of any person purporting to be a public official of another state shall be deemed prima facie evidence of his official character in the courts of this State, but nowhere do we find any mode of authenticating the records of other states laid down by our lawgivers. We must construe this as indicative of the intention of the legislature to adopt the act of Congress on this subject, or rather of a legislative willingness to leave the matter to be controlled by the federal legislation on the subject, and such we think has been the professional understanding and practice in this state." See also Verhallen et al. v. Laveochia, 79 Miss. 310, 30 So. 710; McLin Company v. Worden, 99 Miss. 547, 55 So. 358.
The appellant contends that the failure of the marriage license or certificate to show who L.A. Washington was and in what capacity he was acting when he performed the marriage ceremony between L.A. Wallace and Anna Wallace was insufficient to show a marriage, citing Section 2365 Code 1930, now Section 463 Code 1942. Yet in Section 465 Code 1942, same as Section 2367 Code 1930, our statute says: ". . . . But no irregularity in the issuance of or omission in the license shall invalidate any marriage, nor shall this section be construed so as to invalidate any marriage that is good at common law."
When Anna Married Atwood Wallace in 1939 the presumption arose that any and all prior marriages by L.A. Wallace had been dissolved. The law on this question is well settled in Mississippi.
See Howard v. Kelly, 111 Miss. 285, 71 So. 391, Ann. Cas. 1918C, 1230; McAllum v. Spinks, 129 Miss. 237, 91 So. 694; Ladner v. Pigford, 138 Miss. 461, 103 So. 218; Harper v. Fears, 168 Miss. 505, 151 So. 745, 93 A.L.R. 341; Ouzts v. Carroll, 190 Miss. 217, 199 So. 76; Walker v. Matthews, 191. Miss. 489, 3 So.2d 820; Vaughan v. Vaughan, 195 Miss. 463, 16 So.2d 23.
There being no evidence presented in this State that a divorce between Ida and L.A. Wallace was not granted from two or three years after 1919, at the time she left Belzoni, Humphreys County, Mississippi, until the time of the death of L.A. Wallace, deceased, the presumption arose that a divorce had been granted when L.A. Wallace married Anna Wallace in 1939. See Vaughan v. Vaughan, supra. B.B. Allen, for appellee and cross-appellee, Eva May Wallace.
When Ida left L.A. Wallace in about 1916, without cause, she could not set up domicil elsewhere for divorce purposes; her domicil at all times was that of L.A. Wallace. Therefore, no presumption arose that a divorce had been obtained by her. None was granted in Mississippi, and none could be granted in Illinois. She was shown to be alive when L.A. Wallace died, dying shortly thereafter, leaving as sole heir at law the ward in this case, to whom all the property of L.A. Wallace deceased, should have passed as the sole and only lawful heir of the said L.A. Wallace, and of course, her mother, Ida Wallace.
L.A. Wallace died intestate in Sunflower County, Mississippi, on July 6, 1946, leaving certain personal property and also his homestead in which he was at the time living with his wife Anna and a non compos mentis child Eva May Wallace by a former marriage. He had been married three times. His first marriage was a ceremonial marriage to Ida in Coahoma County on October 8, 1913. They returned immediately after the marriage to Sunflower County, where they lived as husband and wife until Ida left him in about 1918 or 1919 and moved to Belzoni, where she stayed two or three years and then moved to Chicago, Cook County, Illinois. The second marriage was to Percy on January 6, 1919 in Sunflower County. It was also a ceremonial marriage. Percy and the deceased lived together in Sunflower County until about 1939 or 1940, when she left him and moved to Itta Bena, in Leflore County. She lived in Itta Bena until 1941, when she moved to Chicago. She continued to live there up until the time of the trial. L.A. Wallace's third marriage was to Anna in Coahoma County on July 3, 1939. After the marriage ceremony had been performed they returned to Wallace's home in Doddsville, Sunflower County, where they lived together as husband and wife until Wallace died. Eva May Wallace, who was L.A. Wallace's daughter by his first marriage to Ida, lived in the home with them. L.A. Wallace continued to live in Sunflower County until his death, and there was no record of any divorce between these parties in Sunflower County.
On the death of L.A. Wallace his second wife, Percy, petitioned for letters of administration to be issued on the estate, waived her right to serve as administratrix, and prayed for the appointment of N.E. Pentecost as administrator. Letters were duly granted and issued to Pentecost and he entered proper bond and took the oath of office.
The estate was less than $500.00 and the order appointing the Administrator dispensed with the publishing of notice as provided by Section 567 of the Code of 1942, and notice to creditors was posted as therein provided.
Pentecost proceeded to administer the estate and filed his final account with his petition praying for his discharge. In this petition he set up the various claims of the two wives, Anna and Percy, and of the claim of Eva May, the daughter of the first wife Ida, who had died, and prayed that these parties be served with process to show cause, if any they could, why the final account should not be approved and allowed and that the court adjudicate to whom the proceeds of the estate belonged.
Anna Wallace and Percy Wallace each claimed the estate as the lawful wife of L.A. Wallace, deceased, and Eva May Wallace, through her guardian ad litem appointed by the Court, claimed the entire estate upon the theory that her mother, Ida, was the lawful wife, of the deceased, and that on the death of L.A. Wallace she and her mother each inherited a one-half interest, and that on the death of her mother the half inherited by the mother passed to her as the sole surviving heir.
The Court below found that the third wife, Anna Wallace, was the lawful wife of the deceased and that Eva May was his lawful child, and that on his death one-half of the estate passed to the wife Anna, and the other half passed to the child Eva May. From this judgment the second wife, Percy, appealed and the child Eva May cross-appealed, contending that she was entitled to the whole estate rather than the one-half allowed her by the Court.
(Hn 1) The marriage between L.A. Wallace and Anna Wallace being a ceremonial marriage raised a presumption that the former marriages of L.A. Wallace had been dissolved either by death or divorce and the burden of overcoming such presumption rested on the parties asserting the invalidity of the marriage. This rule is well established in this State and about it there can not be any doubt. Vaughan v. Vaughan, 195 Miss. 463, 16 So.2d 23; Colored Knights of Pythias v. Tucker, 92 Miss. 501, 46 So. 51, 52; Alabama V. Ry. Co. v. Beardsley, 79 Miss. 417, 30 So. 660, 89 Ann. St. Rep. 660.
In fact it was said in Vaughan et al. v. Vaughan, supra, that this presumption arising from a subsequent marriage that prior marriages 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.
The evidence in this case shows that Anna married L.A. Wallace on July 3, 1939, and that they lived together as man and wife in Doddsville, Sunflower County, until Wallace died on July 6, 1946, and that no divorce was ever granted dissolving the marriage between these parties. Hence, this marriage is presumed valid and the law presumed that all previous marriages of L.A. Wallace had been dissolved either by death or divorce, and the burden of proving that Wallace had a living and undivorced spouse at the time of his marriage to Anna was on those asserting the invalidity of this marriage.
To meet this burden, the second wife, Percy, offered evidence to prove that she was also ceremonially married to Wallace on January 6, 1919, and that she and Wallace lived together until 1938 when she left him and moved to Itta Bena, Leflore County; that she lived in Itta Bena from 1938 until November, 1941, when she moved to Chicago, where she continued to live up until the time of the suit. It was proven that there was no divorce between these parties in Sunflower County nor in Leflore County. It was then undertaken to prove that there had been no divorce in Cook County, Illinois, by introducing the certificate of the Clerk of the Circuit Court of Cook County to the effect that no divorce had been obtained in that court, and also the certificate of the Superior Court of Cook County to the effect that no divorce had been obtained in that court. (Hn 2) Both certificates were objected to on the ground that the certificates do not show that the signer of the certificate is in fact the clerk, which is another way of saying that neither of the certificates were authenticated under the Federal statute, Section 687, Title 28 U.S.C.A., which reads as follows:
"The acts of the legislature of any State or Territory, or of any country subject to the jurisdiction of the United States, shall be authenticated by having the seals of such State, Territory, or country affixed thereto. The records and judicial proceedings of the courts of any State or Territory, or of any such country, shall be proved or admitted in any other court within the United States, by the attestation of the clerk, and the seal of the court annexed, if there be a seal, together with a certificate of the judge, chief justice, or presiding magistrate, that the said attestation is in due form. And the said records and judicial proceedings, so authenticated shall have such faith and credit given to them in every court within the United States as they have by law or usage in the courts of the State from which they are taken."
Beginning back one hundred years ago in the jurisprudence of this State, it was held in Stuart v. Swanzy, 12 S. M. 684, 20 Miss. 684, which was decided in 1849, and continuing with Bates v. McCully, 1854, 27 Miss. 584, 5 Cushm, 584; Melius v. Houston, 1866, 41 Miss. 59; Hope v. Hurt, 1881, 59 Miss. 174; Verhallen v. Laveochia, 1901, 79 Miss. 370, 30 So. 710; and on down through R.J. McLin Co. v. Worden, 1911, 99 Miss. 547, 55 So. 358, in an unbroken line of decisions that a judicial record of another State can not be proved or admitted in the courts of this State as evidence of a fact until there has been a compliance with Section 905 of the Revised Statutes of the United States, Section 687, Title 28 U.S.C.A.
Accordingly the certificates of the Clerk of the Circuit Court of Cook County and of the Clerk of the Superior Court of Cook County, were not competent evidence to establish the fact that no divorce had been obtained in Cook County, Illinois, because there had been in the preparation of these certificates no compliance with the act of Congress above mentioned.
It is said by counsel for appellant that Section 1726 of the Code of 1942 eliminates the necessity for compliance with the act of Congress and that under it these certificates were competent evidence. Section 1726, Code of 1942, reads as follows: "Any certificate, attestation, or authentication, purporting to have been made or given by any person as an officer of any state or of the United States, shall be prima facie evidence of the official character of such person."
Let it be noted, however, that Section 1726 of the Code of 1942 was brought forward from the Code 1880, wherein it was Section 1629 of that Code, and was in effect at the time of the decision in Hope v. Hurt, 59 Miss. 174, wherein this Court said:
"Was the record from the County Court of Shelby County, Tennessee, in due form? It consisted of a copy of the letters of administration granted to the plaintiff and a certificate that he was in that court accountable for the claim sued on, but it was certified only by the clerk of the court under his seal of office and lacked the authentication of the presiding judge as required by the Act of Congress prescribing the mode of authenticating the records of the courts of one State to be used in another. * * *
"It is said by Professor Greenleaf, 1 Greenl. Evid., Redfield's ed., Sec. 505, that the mode of authentication prescribed by Congress is not exclusive of any other which the States may see proper to adopt, and the statement seems to be borne out by the decisions of those States which have prescribed other methods of authentication, but our State has not done this. By Section 1622 of the Code of 1880 a mode of authenticating private writings which have been legally recorded in other States is provided, and by Section 1629 it is enacted that the certificate or attestation of any person purporting to be a public officer of another State shall be deemed prima facie evidence of his official character in the courts of this State, but nowhere do we find any mode of authenticating the records of the courts of other states laid down by our lawgivers. We must construe this as indicative of the intention of the legislature to adopt the Act of Congress on this subject or rather a legislative willingness to leave the matter to be controlled by the federal legislation on the subject, and such we think has been the professional understanding and practice in the State."
We adhere to the former decisions of this Court which are above enumerated, and which we feel are sound and should be followed, and clearly announce the rule that a judicial record of another State can not be proved or admitted in the courts of this State as evidence of a fact until there has been a compliance with the authentication Act of Congress.
It follows from this that the second wife, Percy, failed to meet the burden that was on her to establish that L.A. Wallace's previous marriage to her had not been dissolved by divorce at the time of consummation of Wallace's marriage to Anna. Failing to prove that there was no divorce the presumption following the marriage to Anna that the former marriage to Percy had been dissolved by divorce became conclusive under the rule announced in Vaughan et al. v. Vaughan, supra.
(Hn 3) Eva May Wallace proved that her mother, Ida, was ceremonially married on October 8, 1913, to L.A. Wallace, and that she lived with him in Sunflower County until she left him and went to Belzoni in about 1918 or 1919 and from Belzoni she moved to Chicago, where she lived until she died in Tuberculosis Hospital on December 23, 1947. It was proven that there was no divorce in Sunflower County and no divorce in Humphreys County. There was no proof offered as to whether or not there had been a divorce in Cook County, Illinois. Hence, on the failure of this proof the presumption flowing from the marriage between L.A. Wallace and Anna that his previous marriage to Ida had been dissolved by divorce became conclusive in the absence of being overcome by competent evidence to the contrary.
From what had been said it follows that Anna was the lawful wife of the deceased, and Eva May was his lawful child, begot in wedlock with his first wife Ida, and that Anna and Eva May were entitled to share his estate equally under the laws of descent and distribution in this State.
We find no error in the decree of the lower court and it will be affirmed on both the direct appeal and on the cross-appeal.
Affirmed.