Estes v. Merrill

Kirby, J. (after stating the facts.) (1) The law is well settled in this State that when a man and woman ¡are legally married the woman 'Continues to-be the -man’s wife, notwithstanding she subsequently contracts a bigamous marriage with another man during his life, and upon the death ¡of her lawful husband is entitled, to the widow’s rights in his estate. Evatt v. Miller, 114 Ark. 84. (2-3) It is likewise settled law that marriages contracted without the ¡State, which -are valid by the laws of the State or country in which the same ¡are consummated, and the parties then actually resided, are valid in this State (Kirby’s Digest, Sec. 5177) and our courts take judicial 'knowledge of the laws of other States, and that a common law marriage was valid in the State of Ohio when .appellee assumed the marital relation ¡and lived with her husband Merrill there. Carmichael v. State, 12 Ohio St. 553; 26 Cyc. 837; Darling v. Dent, 82 Ark. 76. (4) The undisputed testimony of the appellee and others relative to her assuming the marital relation with Merrill and living with him as his wife in Ohio where they were regarded as husband and wife ¡and reared a family ¡of children, ¡established a valid comm or law marriage, unless the parties could not assume such relation because’ of some legal disability, as having a lawful husband or wife undivorced at the time. Of course since appellee was legally married to the deceased, ¡she would be entitled to the widow’s rights in his estate, notwithstanding her relation with said Merrill, if her marriage to him was not legal or -bigamous. Her marriage to him wa!s shown by the undisputed teistimony however, ¡and Cyc. says: “If a marriage in fact is established by evidence or admission, it is presumed to be regular and valid, and the burden of (adducing evidence to 'the contrary rests on the party who (attacks it.” 26 Cyc. 877; also Halbrook v. State, 34 Ark. 518; Cash v. Cash, 67 Ark. 281. The burden ¡of proof is upon the person attacking the validity of 'a marriage. Bishop says: “Every intendment of the law is in favor of matrimony. When a marriage has been .shown in evidence, whether regular or irregular, 'and whatever the form of the proof, the law raises -a strong presumption of its legality; not only casting the burden of the proof on the party objecting, but requiring him throughout, ¡and in every particular, plainly to make the fact appear, against the constant pressure of this presumption, that it is illegal and void. ¡So that it cannot be ¡applied like ordinary questions of fact, which are independent of this ¡sort of presumption. ’ ’ 1 Bishop, Marriage and Divorce, Sec. 956; Halbrook v. State, 34 Ark. 518. So strong is this presumption and the law is so positive in requiring the party who asserts the illegality of ¡a marriage to take the burden of proving it, that such requirement obtains even though it involves the proving of a negative, and ¡although it is shown that one of the parties had contracted a previous marriage, and the existence of the wife or husband of the former marriage at the time of the second marriage is- established by proof, it is not sufficient to overcome ¡the presumption of the validity of the second marriage, the law presuming rather that the first marriage has been dissolved by divorce, in order to ¡sustain the second marriage: Schmisseur v. Beatrie, 147 Ill. 210; Pittinger v. Pittinger, 89 Am. St. Rep. 193, and authorities cited in note; Potter v. Clapp, 96 Am. St. 322; Boulden v. McIntire, 12 Am. St. Rep. 458; Smith v. Fuller, 16 L. R. A. (N. S.) 98, and authorities in note, page 106; Howton v. Gilpin, 24 Ky. Law Rep. 630, 69 S. W. 766. (5) In order for appellee to succeed in 'this suit, it was necessary for ¡her to prove the invalidity of her marriage to Merrill, and in attempting to do so she stated that she employed a lawyer to procure a divorce from Condon, the deceased, and paid him 'his fee; that she signed certain papers ¡after 'being sworn, and was later told by her attorney that there had been no objection miade, and the divorce had been granted; that she then married the second husband in the belief that she bad procured .a divorce and afterwards when visited by the first husband, Condon, while she was living with her second husband, told him that she had procured ¡a divorce from him and had his approval of 'her conduct, stating she had done right in so doing. She lived with her second husband as his wife for the past thirty years and then 'challenged the validity .of her last marriage to enjoy the estate left by her first husband. ■She adduced no other proof of the invalidity thereof than her own statements, except the testimony of the clerk of the divorce court in the county in which Lexington, Ky., is situated, that he was unable to find .after a careful examination of the records, any record of a divorce obtained in a suit of Elizabeth Condon v. John Condon, during the years about the time she stated she made application for, and understood ia divorce had been granted to her. The copy of the letter which she stated was written by her husband’is physician for him, containing a statement that he “had not procured a divorce etc.”, was incompetent and entitled to no weight whatever, the letter not having been shown to. have been .signed by him nor written by his authority and was the veriest hearsay. Her own statement of her actions in attempting to procure a .divorce well nigh established the fact that she had done so in accordance with her statement to her former husband that she had obtained a divorce, and her subsequent conduct in marrying Merrill, and it is barely overcome by the statement of the clerk of the divorce court at Lexington, Ky., since it was not definitely shown ¡that her suit for divorce bad been brought in that county and there is no proof whatever that her first husband bad not obtained a divorce from her. His conduct in the making of deeds, and affidavits reciting that he was a single man and Ms statements that such was the fact to the people /among whom he lived, with the testimony that he seemed elated upon his return from one visit to the East and stated that he was now divorced ■and was “free and straight,” all indicated that he had, /and supported the presumption to that effect. The proof is not sufficient to overturn the second marriage, wMch is presumed to be legal. The finding of the 'Chancellor was not warranted by the testimony and the decree is reversed /and the cause remanded with directions to dismiss the complaint for want of equity.