119 P. 533 (Kan. 1911), 17,317, Shepard v. Carter

Docket Nº:17,317
Citation:119 P. 533, 86 Kan. 125
Opinion Judge:JOHNSTON, C. J.:
Party Name:CARRIE SHEPARD, Appellee, v. HENDERSON CARTER et al. (BELLE OVERTON, whose real name is Belle Carter, Appellant; HATTIE CARTER, Appellee)
Attorney:R. B. McWilliams, John Clark, and M. A. Gorrill, for the appellant. Lee Bond, and Malcolm N. McNaughton, for appellee Hattie Carter.
Case Date:December 09, 1911
Court:Supreme Court of Kansas
 
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Page 533

119 P. 533 (Kan. 1911)

86 Kan. 125

CARRIE SHEPARD, Appellee,

v.

HENDERSON CARTER et al. (BELLE OVERTON, whose real name is Belle Carter, Appellant;

HATTIE CARTER, Appellee)

No. 17,317

Supreme Court of Kansas

December 9, 1911

Decided July, 1911.

Appeal from Leavenworth district court.

Judgment sustained.

SYLLABUS

SYLLABUS BY THE COURT.

MARRIAGE--Separation--Divorce--Presumptions. Appellant and intestate were married but never lived together. The intestate left the state declaring he would obtain a divorce, and returned two years later saying one had been obtained. Appellant, acting on the belief that a divorce had been granted, married another, and children were born of this marriage. Later, intestate obtained a license and formally married another and lived with her about eighteen years and until his death, and eight children were born of that marriage. When he died, appellant, in a partition proceeding, claimed that no divorce had been granted, and no record or documentary proof of the divorce was introduced. Under the facts of the case it is held that it will be presumed that the first marriage was dissolved by a divorce, and that when appellant claimed to inherit land as the surviving widow of intestate it devolved on her to prove that no divorce had been granted.

R. B. McWilliams, John Clark, and M. A. Gorrill, for the appellant.

Lee Bond, and Malcolm N. McNaughton, for appellee Hattie Carter.

OPINION

Page 534

[86 Kan. 126] JOHNSTON, C. J.:

This was an action in partition brought by Carrie Shepard, in which Henderson Carter and other claimants were named as defendants. Subsequently, in an amended petition, Belle Overton was brought in as a defendant and as one claiming an interest in the land sought to be partitioned. She alleged that she was the wife of Thomas L. Carter, known as Lewis Carter, at the time of his death, and therefore she claimed a share of the property which he had inherited from his father and mother. At the trial it was shown that on January 10, 1880, Belle Overton was married to Lewis Carter by the probate judge. They parted at the courthouse door and never lived together, but she gave birth to a child a few weeks after the ceremony. Shortly afterwards Lewis Carter went west, supposedly to California, and after two years' absence he returned to his former home in Kansas. He told Belle Overton he was going to obtain a divorce, and when he returned he told her that a divorce had been procured. Acting on this information and belief, Belle [86 Kan. 127] Overton married Edward...

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