Wilkie v. Collins

SlMKALL, J. : By agreement of counsel, the substantial subject in contestation between the parties is to be considered and decided by the court, all technical forms being Waived. The real question in issue is, whether Mary Elizabeth Roberts was lawfully married to Sylvester Wilkie, on [510] the 30th of April, 1861. ' That question, will be answered, as it shall be determined whether her former husband, Napoleon Roberts, was then living or not. These facts are admitted by the parties: that on the — of-, 1859, the said Mary Elizabeth was lawfully married to her first husband, Napoleon Roberts; that Roberts left his wife about the 30th of October, 1859, and no news of his death has ever been received. On the 30th of April, A. D. 1861, the said Mary Elizabeth was married to Sylvester Wilkie, with whom she cohabited until the fall of 1868, when, without his knowledge, she left him, and went to the state of Arkansas, where she has ever since resided with her daughter. In September, 1869, Wilkie married another woman by the name of Mary Eliza. Wilkie having died, this controversy arises on the application for letters of administration on his estate, Mary Elizabeth Wilkie, formerly Roberts, claiming a preference as his lawful widow. About two years after Roberts left home, Mrs. Roberts married Wilkie. There is always a presumption that every individual conforms his conduct to the requisitions of duty, as prescribed by law. It belongs to universal jurisprudence, that innocence of an act which the law forbids and denounces as criminal shall be presumed. Therefore, if a man or woman contracts a marriage in due form, the presumption is that the marriage is legal, that is, that there was no legal impediment in the way. It was very properly said in Powell v. Powell, 37 Miss. 785, that the “law favors marriage,” and “ requires clear testimony to invalidate it.” The superstructure of society rests upon marriage and the family as its foundation. The social relations and the rights of property spring out of it, and attach to it, such as dower, administration, distribution and inheritance. All controversies, therefore, growing out of marriage, [511] assume the dignity and importance of quasi public questions. The marriage of Mrs. Roberts with Wilkie is said to be bigamous because, at the' time it was contracted, Roberts had not been absent for five consecutive years without being heard from, and therefore the presumption did not arise that - he was dead. Code of 1857, p. 577, art. 27. The precise fact to be ascertained is, whether Roberts was living when Mrs. Roberts was married the second time. If no other fact appeared, but simply the marriage, the presumption is in favor of validity. But there is also a presumption in favor of the continuance of life, which is only overcome by a protracted absence for the time specified. In such circumstances, founded on considerations of policy, and in favor of innocence, the presumption in favor of the marriage will prevail as against that of the continuance of life; and it will devolve upon the disputant of the marriage to overcome it by testimony that the first husband was living at the time of the second marriage. 1 Greenl. Ev., § 35; Rex v. Twining, 2 B. & Ald. 385. In Rex v. Harborne, 2 Ad. & El. 540, it was proved that a letter had been written by the first wife, from one of the colonies, only twenty days before the husband married the second time; this was deemed'sufficient to warrant the presumption that the wife was living. The case reported in 2 B. & Ald., supra, arose in respect to a settlement in the parish; the woman, twelve months after the husband was last heard from, married a second husband, by whom she had children. It was held that it was rightly presumed that the first husband was dead at the time of the second marriage. This application of the principle was accepted and adopted in Spears v. Burton, 31 Miss. 558. The action was ejectment. The title was claimed by descent, cast upon the issue of the marriage, which was impugned [512] as illegal, because the marriage with Burton, the plaintiff’s father, took place within five years after the desertion of Bayard, the first husband; therefore there was no presumption of his death; and it was incumbent on the plaintiff to prove his death. The court, however, affirm the rule to be, that the presumption is that the marriage was valid, and the onus was upon the defendant to show the contrary by proving the first husband living at or shortly before the date of the second marriage. Gibson v. State, 38 Miss. 322, was a prosecution for bigamy. The court declare that there is no difference between the civil and criminal consequences when the fact of marriage in due form of law has been proved. The presumption in favor of the marriage of Mary Elizabeth with Wilkie is greatly sustained and aided by the testimony. It was in evidence that her relations with her first husband, Roberts, were agreeable and pleasant; that he left home in the fall after the marriage to go to Louisiana on business; that he wrote several times to his wife ; the last letter, written from a sick bed, stated that so soon as he recovered he would return home. He was represented as a delicate man in feeble health. The correspondence suddenly ceasing; and Roberts not being heard from for quite a year, when Mrs. Roberts married again, begets the strong impression that his feeble frame succumbed to the disease which was upon him when he wrote the last letter to his wife, and that when she married Wilkie she was a widow. Such was the belief of the family. Connect this part of his history with the further circumstance that the other contestant offered no testimony that Roberts was ever aferwards heard of by his family connections and friends, and the inference is legitimate and strong that he died about the time supposed by his wife. The controversy originated about this administration in 1871, eleven years after Mrs. [513] Roberts supposed that her husband had died, and about nine years after she had married Wilkie, the intestate; and yet in this long interval nobody has ever heard of him alive. At the time of Mrs. Roberts’ second marriage the facts shown in evidence were sufficient to satisfy her that her first husband was dead; acting on that belief, she married a second time. The last marriage cannot be invalidated except by proof that the first husband was living at the time, or so shortly before as to put upon her the necessity of proying his death. That lias not been done in this case. We are therefore of opinion that the appellant, Mary Elizabeth Wilkie, is the lawful widow of the intestate, and has the preference over the appellee to administer on his estate. Decree reversed and cause remanded.