Opinion
No. 32494.
January 11, 1937. Suggestion of Error Overruled, February 22, 1937.
1. DEATH.
Statutory presumption of death ends when it is shown that person whose death is in question is, in fact, alive (Code 1930, sec. 1537).
2. MARRIAGE.
Where woman's undivorced husband lived openly within state after his release from penitentiary and kept in touch with near relatives living in county in which he had formerly resided, such woman's subsequent marriage while husband lived held invalid, since inquiry would have disclosed that he was then alive, notwithstanding rumors that he was dead (Code 1930, sec. 1537).
APPEAL from the chancery court of Claiborne county. HON. R.W. CUTRER, Chancellor.
M.M. Satterfield, of Port Gibson, and Alexander Satterfield, of Jackson, for appellants.
No divorce was ever obtained by either Tom Smith or Kattie Smith.
Section 1566, Code of 1930.
Complete absence of good faith on the part of Kattie Brown Smith Sheppard Watson is shown by the evidence.
Kattie Brown Smith, alias Watson, has no equitable right to the property involved.
Certificates of chancery clerks were proper proof of no divorce.
Section 1566, Code of 1930; Tigner v. McGehee, 60 Miss. 185; Thompson v. Clay, 120 Miss. 190, 82 So. 1.
Under the evidence in this case no presumption of death can be invoked in favor of Kattie Brown Smith.
Section 1537, Code of 1930.
The evidence as established without dispute that Tom Smith was never beyond the sea or absent from the state and never concealed himself in the state. In fact, the testimony by four witnesses through their depositions, and by Tom Smith personally, was undisputed that he never attempted to conceal himself in any way whatsoever and was never absent from the state.
8 R.C.L. 709.
In this case the direct testimony is that Kattie Brown Smith made no inquiry whatsoever of the mutual relatives who were at all times available to her. In the absence of such inquiry this section cannot be invoked.
11 C.J. 1171, 1172; Manley v. Pattison, 73 Miss. 417.
This rule of the presumption of death is simply a presumption which disappears when the contrary is proved by direct evidence.
Parker v. New York Life Ins. Co., 107 So. 198; A. V.R.R. Co. v. Beardsley, 79 Miss. 422, 30 So. 660; White v. Weitz, 152 So. 484.
The affirmative evidence in this case overthrows the presumption of divorce, and there is no testimony that a divorce was granted.
Colored Knights of Pythias v. Tucker, 92 Miss. 501, 46 So. 51; Pigford v. Ladner, 138 Miss. 461, 103 So. 218, 142 Miss. 435, 107 So. 658, 147 Miss. 822, 112 So. 785; McAllum v. Spinks, 129 Miss. 237, 91 So. 694; Rice v. Building Loan Assn., 145 Miss. 1, 110 So. 851; Sullivan v. Grand Lodge of Knights of Pythias, 52 So. 361, 97 Miss. 218; Thompson v. Clay, 120 Miss. 190, 82 So. 1.
J.T. Drake, of Port Gibson, for appellants.
While the burden is on us to prove no divorce, still we wish to call the court's attention to the fact that if there has been a divorce Kattie would certainly have known it and would have been in a position to set this question at rest beyond question, either by copies of a decree of divorce or otherwise.
Section 1417, Code of 1930; Thompson v. Clay, 120 Miss. 190.
It is uncontradicted that there was no divorce, and this is proved positively by uncontradicted testimony and evidence, outside of Tom Smith's evidence, which corroborates.
Tom Smith did not remain beyond the sea; he did not absent himself from this state at all, and the only point urged is that he concealed himself in this state, and the only thing urged by attorneys for Kattie in support of the alleged concealment is that Kattie had not heard from him, and that she was the most natural person for him to have made himself known to. They lose sight of the fact that the records of Warren county show that prior to the expiration of his sentence she had contracted a bigamous marriage with one Jeff Shepherd and was living with him as his wife at the time that Tom's sentence expired. It is incredible, even in the absence of any evidence whatever, that he should not have known of this.
Section 1537, Code of 1930.
The question comes up as to what the word "conceal" means; we are not at loss for authorities. Webster says it means "to hide;" "to keep close or secret;" "to hide, to withdraw from observation."
Tom did none of these. He pursued the usual life of a tenant farmer; married and raised children; kept in touch with his sister and brother, and the only thing that they can argue in support of the concealment idea is that he did not communicate with a faithless wife, who he knew to be faithless. The facts do not fit the statute and the statute does not apply.
12 C.J., 371, 372; Section 1537, Code of 1930; 17 C.J., 1170, 1171, 1172, sections 11 and 12.
He was not concealing himself and before this presumption could be indulged, there must be evidence of diligent inquiry among those who would naturally know of his whereabouts, in this case his relatives, of whom his sister would have been the one who would be in touch with both parties.
2 Greenleaf on Evidence, 278f; Policeman's, etc., Assn. v. Ryce, 104 A.S.R. 190, 213 Ill. 9, 72 N.E. 764; Miller v. W.O.W., 28 L.R.A. (N.S.) 178; Modern Woodmen v. Gordon, 2 L.R.A. (N.S.), 809.
Anderson Weil, of Port Gibson, for appellees.
Where the record does not contain express findings of all material facts involved in the case, it will be presumed, on appeal, that the lower court found in favor of the prevailing party, all the facts necessary for the support of the judgment.
4 C.J. 778, secs. 27, 28.
Evidence supports finding that Kattie acted in good faith.
The court had ample evidence upon which to predicate a finding that Tom Smith never did return to Bovina, and did not see Kattie Watson at the time, so that the contention of appellants that Tom did not communicate with Kattie, during all those years, because he saw her living in adultery with Jeff Shepherd would naturally fail.
Appellants contend that Kattie's marriage to Jeff Shepherd within two years after Tom Smith was sent to the penitentiary is evidence of her bad faith in twenty-seven years later contracting her third marriage with Paul Watson. We cannot see how the marriage to Jeff Shepherd can have any bearing on the validity of the subsequent marriage to Paul. The marriage to Jeff Shepherd was evidently invalid, but how can it bear upon a marriage contracted twenty-seven years later and at a time when twelve years had passed since she was reliably informed of Tom Smith's death, and when it is shown that she in good faith believed Tom to be dead and obtained a valid divorce from Jeff Shepherd before contracting said marriage to Paul Watson.
Strong presumptions arise upon proof of ceremonious marriage.
Ladner v. Pigford, 147 Miss. 822, 103 So. 218; Colored Knights of Pythias v. Tucker, 92 Miss. 501.
These presumptions are, of course, not conclusive and may be rebutted, but the question as to whether or not the evidence was sufficient to rebut them was a question of fact for the chancellor who found that said presumptions were not sufficiently rebutted. The presumption with which we are chiefly concerned in the case at bar is the presumption of death.
Section 1537, Code of 1930.
It was shown below to the satisfaction of the chancellor that up until the time this suit was filed, Kattie had not seen or heard of Tom Smith for forty years and more. She had been reliably informed that Tom Smith was dead fully twelve years before she married Paul Watson. Thus the period of seven years absence, which, according to our statute, gives rise to the presumption of death had run almost four times over at the time of said marriage to Paul Watson and said presumption had been considerably strengthened by the report of his death.
Where a husband has absented himself from his wife for seven years without being heard of, his wife, having had reliable reports of his death and in good faith believing him to be dead, may rely on the presumption of death and contract a second valid marriage, which marriage will continue to be valid even though it later appear that the first husband was not, in fact, dead.
Essick v. Essick, 167 So. 420; Ladner v. Pigford, 147 Miss. 822, 103 So. 218; Harper v. Fears, 168 Miss. 505, 151 So. 745.
The equity of appellee's case supports contentions.
Argued orally by J.C. Satterfield and J.T. Drake, for appellant, and by Karl Weil and R.B. Anderson, for appellee.
On November 6, 1934, Paul Watson died intestate leaving no children or grandchildren surviving him, and on the eighth day thereof, a petition was filed in the court below by Kattie Watson and L.S. Pearson, alleging that Kattie was the widow of Paul Watson, and praying that Pearson be appointed as administrator of his estate, Pearson was so appointed, qualified and proceeded with the administration of the estate.
In April, 1935, Henry Watson and several others filed a petition alleging that Kattie was not the widow of Watson; that although a marriage ceremony had been performed between them, she did not become his wife for the reason that she then had a living husband from whom she was not divorced; that petitioners are Watson's next of kin, and praying that petitioners be decreed to be the true and only heirs of Paul Watson, and that Kattie be directed to return any portion of the estate that had been delivered to her by the administrator, and that the administrator "be required to distribute the entire estate, less the costs of administration" and any debts due by Watson, "to your petitioners."
There was some further pleading which resulted in an issue being presented as to the validity, vel non, of Kattie's marriage to Paul Watson, and the court below held this marriage to be valid and decreed accordingly. Kattie died after the decree was rendered, but her administrator has been made a party hereto.
The undisputed facts are that prior to 1894, Kattie was legally married to Tom Smith in Warren county, Miss., and lived with him near Bovina in that county until some time in 1894 when Smith was convicted of the commission of some crime and sentenced to serve three years in the penitentiary therefor. Thereafter, Kattie married Paul Watson in Claiborne county, Miss., and lived with him as his wife up to the time of his death in 1934.
Smith is alive, appeared in person at the trial, and the evidence discloses that no decree of divorce has been rendered dissolving this marriage with Kattie. This being true, the marriage between Kattie and Paul Watson is void unless, as her counsel say, it is valid under section 1537, Code of 1930, which provides that, "Any person who shall remain beyond the sea, or absent himself from this state, or conceal himself in this state, for seven years successively, without being heard of, shall be presumed to be dead in any case where his death shall come in question, unless proof be made that he was alive within that time; but any property or estate recovered in any such case shall be restored to the person evicted or deprived thereof, if, in a susbequent action, it shall be proved that the person so presumed to be dead is living." This necessitates a further statement of the evidence.
After Smith was sent to the penitentiary, Kattie continued to live in Warren county wherein she and Smith lived, until some time in 1896, when she there married Jeff Shepherd and continued to live with him, most of the time in Warren county, until some time in 1923 when she obtained a divorce from him, and thereafter married Paul Watson with whom she lived in Claiborne county until the date of his death in 1934.
When Smith's penitentiary sentence expired, according to the evidence for the appellants, he returned to Bovina, remained there a short time, met Kattie, and learned that she was married to Shepherd. This is disputed by the evidence for the appellees. After Smith left the penitentiary, he lived for a short time in Warren county, not at Bovina, but what distance therefrom does not appear, from which he moved to Washington county, living there openly for about six years, then moved to Coahoma county where he remained for several years. Thereafter he lived openly in Issaquena and Bolivar counties, and finally moved to Tallahatchie county, where he now lives openly and has for a number of years. About ten months after leaving the penitentiary, Smith married again, and was twice married again thereafter.
Smith was reared at or near Bovina in Warren county, and after his removal therefrom kept in touch and corresponded with near relatives living either there or elsewhere in Warren county. He did not, at any time after leaving the penitentiary, communicate with Kattie unless he did so at Bovina shortly thereafter, as he and other witnesses say that he did, but there is evidence to the contrary.
Between twenty and thirty years before the trial, which took place in May, 1935, there was a rumor around Bovina that Smith was dead. About twenty-four or twenty-five years prior to the trial, a brother of Smith told a brother of Kattie that Smith was dead, which information Kattie's brother communicated to her. It does not appear that Kattie, at any time, inquired of Smith's relatives, or of any one else, as to whether Smith was living, and if so, where he was, until after this controversy arose. She then communicated with Smith.
Smith having remained continuously in this state after his penitentiary sentence expired, the presumption of his death created by the statute does not arise, unless he concealed "himself within this State for seven years successively without being heard of." Neither of these facts here exists. He lived openly at his several places of residence, and kept in touch with and visited near relatives who lived in the county in which he resided when he was sentenced to the penitentiary, inquiry of whom would have disclosed that he was alive. 1 Jones on Evidence (2 Ed.), secs. 287, 288; 17 C.J. 1170-1172; 8 R.C.L. 709. Cf. Manley v. Pattison, 73 Miss. 417, 19 So. 236, 55 Am. St. Rep. 543.
Moreover, the presumption of death created by the express terms of the statute ends when it is made to appear that the person whose death is in question is, in fact, alive. This court has so held in cases involving the validity of a second marriage by one spouse contracted during the absence of the other, among which are Spears v. Burton, 31 Miss. 547; Gibson v. State, 38 Miss. 313; Alabama V.R. Co. v. Beardsley, 79 Miss. 417, 30 So. 660, 89 Am. St. Rep. 660. See, also, 38 C.J. 1296, and Jones op. cit. sec. 290.
But counsel for appellees says that Kattie married Watson in good faith believing, because of a rumor, and of a report to her that a near relative of Smith had said, that Smith was dead, and that this court has held that a second marriage contracted under such circumstances is valid, citing in support thereof Essick v. Essick, 175 Miss. 412, 167 So. 420; Ladner v. Pigford, 138 Miss. 461, 103 So. 218, 221, and Harper v. Fears, 168 Miss. 505, 151 So. 745, 747, 93 A.L.R. 341. Counsel for appellees seems to say that these cases are in conflict with the statute, and former decisions of this court, but it is not necessary for us to here determine that question. Kattie's good faith in marrying Watson is challenged by the appellants, who point out that she married Shepherd before she was informed that Smith was dead, and, before marrying Watson, she could have easily ascertained that Smith was alive by inquiry of his relatives. It will not be necessary for us to respond to this contention, consequently it will be left out of view.
In the Essick case the person whose death was in question was not shown to be alive; the facts creating the presumption of death were proven, and the court held that the court below was warranted in not believing the testimony offered to show that he had been seen alive within the statutory period. The case, therefore, is of no value here.
In the case of Ladner v. Pigford, all the facts necessary to create the presumption of the death of the husband existed at the time of the wife's second marriage. The evidence failed to disclose that Ladner and his wife had not been divorced, and because of that, the court said that the second marriage of Ladner's wife to another must be presumed to be valid. The court, however, then proceeded to say that, "It has appeared from the announcement of our court that, after the statutory period, by present statute seven years, an absence from the state without being heard from by parties who would likely hear from the person if living, the other party became capacitated to contract a marriage, and, where the marriage was contracted, relying upon the statutory presumption of death, it would seem logically to follow that subsequent developments would not destroy the marriage so contracted, the party having the right to act upon the presumption under the statute and to remarry without a divorce; that when such right was exercised it would have the legal effect of dissolving the former marriage; and that the subsequent development that the person was actually alive would not have the effect of destroying the marriage so entered into nor to render the issue of such marriage illegitimate. It would be an anomalous situation which would capacitate a party to contract a marriage under such circumstances that would destroy such a contract entered into in good faith in the honest belief that the party was dead. It is difficult to see how a marriage can be valid and children legitimate if, after the marriage, nothing is heard from the party, and be illegitimate if, after the marriage so contracted in good faith on the belief that the person was dead, it should develop that he was not in fact dead."
This holding, if such it was intended to be, is said to be in conflict with former decisions of this court, but aside from that, and expressing no opinion thereon, it will be observed that the court there predicated its announcement on the fact of absence from the state, without being heard of by the parties who would be likely to hear from the person if living. The case at bar does not come within the rule there announced. After the return of that case to the court below, it was again tried and the second marriage of the wife was held valid, and this decree was affirmed by this court in Pigford v. Ladner, 147 Miss. 822, 112 So. 785, on the ground that the evidence did not disclose that a divorce had not been granted prior to the second marriage. Nothing was said therein relative to any presumption of Ladner's death.
In the case of Harper v. Fears, a wife, who had contracted a second marriage, still claimed to be the wife, or rather the widow, of her former husband. In the case at bar, the wife of the former husband is claiming to be the widow of one with whom she intermarried while her former husband was living. In that case, the court held that the second marriage must be held to be valid for two reasons: (1) That the evidence did not disclose that the first marriage had not been dissolved by a decree of divorce; and (2) that the evidence disclosed that the wife contracted a second marriage on the faith of the presumption of death created by the statute. The opinion of the court also declares that it again predicated its announcement on the fact of the "absent party not being heard from during that time," the statutory period. That case, therefore, is not authority here, as Smith's whereabouts were always known to those likely to be cognizant thereof.
Reversed and remanded.