Payne v. Payne

• Citation: 219 S.W. 4
• Parties: PAYNE v. PAYNE.
• Decision Date: 25 February 1920
• Court: Supreme Court of Tennessee

219 S.W. 4

PAYNE v. PAYNE.

Supreme Court of Tennessee.

February 25, 1920.

Certiorari to Court of Civil Appeals.

Mrs. Lilla A. Payne, a resident of Hamilton county, Tenn., applied for and obtained letters of administration upon the estate of Simpson P. Payne, and thereafter Mrs. Icedora K. Payne filed a petition in the county court of Hamilton county, alleging that she was the lawful widow and entitled to administration. The petition was dismissed, but on appeal to the circuit court the letters of administration issued to Mrs. Lilla A. Payne were set aside, etc., and she appealed to the Court of Civil Appeals, and the cause was brought to the Supreme Court on certiorari. Judgment of circuit court affirmed.

C. W. K. Meacham, of Chattanooga, for Mrs. Lilla A. Payne, Adm'x.

Percy H. Chandler, of Mt. Pleasant, and J. M. Trimble, of Chattanooga, for Mrs. Icedora K. Payne.

LANSDEN, C. J.

The following statement of the case is taken from the opinion of the Court of Civil Appeals, which all parties agree is correct:

"This case involves a contest between two claimants of the right to administer the estate of Simpson P. Payne, who died intestate in Shelby county, Tenn., on the 31st of October, 1917. Each of the contestants claims to be the lawful widow of said S. P. Payne, deceased.

"On November 23, 1917, Mrs. Lilla A. Payne, a resident of Hamilton county, Tenn., applied for and obtained letters of administration on said estate from the county court of Hamilton county, and duly qualified as such administratrix. On February 6, 1918, Mrs. Icedora K. Payne, a resident of Maury county, Tenn., filed a petition in the county court of Hamilton county, alleging that she is the lawful widow of said S. P. Payne, deceased; that the home and place of residence of said decedent was in Maury county, Tenn., and not in Hamilton county that said Mrs. Lilla A. Payne, to whom letters of administration had been issued, was neither widow, relative, nor creditor of said decedent, and therefore had no right to administer upon his estate. The petitioner prayed that Mrs. Lilla A. Payne be made a defendant to said petition, and be required to appear and make defense to same; that the letters of administration granted to Mrs. Lilla A. Payne be revoked, recalled, and canceled, and that petitioner be left in position to be appointed and qualified as administratrix by the county court of Maury county, Tenn., the place of residence of the deceased, S. P. Payne, or, should the court determine that the said S. P. Payne, deceased, did have a place of residence in Hamilton county, that petitioner be appointed the administratrix of her said deceased husband's estate.

"On February 28, 1918, Mrs. Lilla A. Payne filed an answer to said petition, in which she denied that petitioner is the lawful widow of S. P. Payne, deceased, and averred that she (Mrs. Lilla A. Payne) is the lawful widow of said decedent. She denied that said decedent was a resident of Maury county, Tenn., at the time of his death, and averred that at that time his legal residence was in Hamilton county, Tenn. Mrs. Lilla A. Payne also alleged in her answer that she is a creditor of the estate of S. P. Payne, deceased, in the sum of $1,000, evidenced by promissory note executed by deceased December 10, 1912, which note is outstanding and unpaid.

"The cause was heard before the judge of the county court upon the petition, answer, and proof, upon which the court found that the letters of administration to Mrs. Lilla A. Payne were not improvidently granted, and that the petition and proof did not show proper cause for revocation, and the court dismissed the petition of Mrs. Icedora K. Payne, and taxed her and the sureties on her cost bond with all the costs of the proceeding. Mrs. Icedora K. Payne prayed, was granted, and perfected an appeal to the circuit court of Hamilton county, where the cause was heard upon the transcript from the county court and proof introduced upon the trial, whereupon the circuit court found that the letters of administration issued to Mrs. Lilla A. Payne by the county court `were improvidently issued under the erroneous assumption that said defendant was the legal widow of the intestate when in fact she was not the legal widow.'

"We shall designate Mrs. Lilla A. Payne as appellant and Mrs. Icedora K. Payne as appellee.

"It is admitted on the record that the appellee Mrs. Icedora K. Payne holds a certified copy of marriage license issued by the county court clerk of Maury county, Tenn., on the 8th day of December, 1875, upon which the return is made by J. W. Howard as the officiating minister, showing that Icedora K. Payne (then Icedora Mathews) was married to the deceased, S. P. Payne, on the 9th day of December, 1875, and that she also holds a certified copy from the marriage license book of Maury county, Tenn., showing the proper indorsement and return of said license.

"It is also admitted on the record that Mrs. Lilla A. Payne holds a certified copy of license from Pulaski county, state of Arkansas, showing that, on the 26th day of May, 1910, she was married to S. P. Payne of Cincinnati, marriage taking place in Pulaski county, Ark., certificate of the marriage is signed by Henry M. Hyde, rector of Christ Church of Pulaski county, Ark., and these certificates are all authenticated by the clerk of the county and probate court of said county of Arkansas under his seal, and the authority of said county and probate clerk is attested by Joseph Asbury, county and probate judge of Pulaski county, Ark., and the county court clerk attests to the authority, etc., of the county judge.

"It is also admitted on the record that the S. P. Payne referred to in both of the marriage certificates as above stated is one and the same person, and that he is dead; that he died in Memphis, Tenn., October 31, 1917."

As a result of the marriage of appellee and S. P. Payne a daughter was born, who is married and has a family of her own. No children resulted from Payne's marriage with the appellant.

The appellee states: That she and Payne lived in Columbia, Tenn., from the time of her marriage with Payne in 1875 until about 1915, when she moved to Mt. Pleasant, Tenn., to reside with her daughter. Payne was a model husband to her for a long time, but business troubles overtook him, and he failed in business. After that time he became a traveling salesman, and traveled over the states of Texas, Oklahoma, and South Carolina, and perhaps other states. He would be absent four, five or six weeks, and sometimes for a year. That she never knew of Payne residing in Ohio. That he had not given her much in the way of a support for the last 15 years, and that during the last 4 years she contributed to his support. She sent him as much as $150 at a time during the last 4 years. Payne corresponded with her, and when he came home they lived together as man and wife. In February, 1915, Payne telegraphed appellee that he was sick and in a bad condition and wanted $200. At appellee's request her daughter, Mrs. Davis, and a sister of Payne went to Richmond, Ky., where he was, and found that he was living with appellant. This trip was made at appellee's expense, and when her daughter returned she reported this fact to appellee. The appellant told Mrs. Davis that she and Payne were married, and this was the first time that appellee ever heard of the second marriage. Payne wrote to the appellee after this occurrence, and denied that he was married to appellant, and begged appellee to forgive him, and said that he desired to come back to her. This letter was sent by the appellee to the appellant, and later in the same year Payne came to Mt. Pleasant and spent the summer with appellee, and they lived together as husband and wife, and Payne repeated his statement to appellee that he was not married to appellant. Payne returned to the road as a traveling salesman at the end of the summer, and appellee did not see him again until his death, which occurred about two years later; but that Payne continued to communicate with appellee on up until the time of his death, and he wrote to her under date of October 23d before his death on the 31st of the same month. The appellee says that she answered some of Payne's letters during the two years intervening between the departure from Mt. Pleasant and his death. She says that she never filed a bill for divorce against Payne, and that she never heard of Payne filing a bill against her; that a divorce had never been spoken of between them, and that there had never been a separation between them any further than that Payne, in the pursuit of his business as traveling salesman, would go away from home a great deal of his time. Her viewpoint is well set forth in a letter which she wrote to solicitors for appellant, who wrote Mrs. Davis and inquired if there was a divorce between appellee and Payne. The letter is as follows:

                                       "Mt. Pleasant, Tenn
                

"Estill & Norman, Chattanooga, Tenn. — Gentlemen: After the hustle and worry of getting ready for the holidays, and the little stockings have been filled, I have gotten to your letter at last, written to my daughter, which I will answer myself. First I will say there is no divorce, nor was there ever one spoken of. I professed to be a Christian and believe what God has joined together let no man or woman put asunder. I married him some years ago and took him for better or worse and I am sorry to say that worse has prevailed. Mr. Payne for years was an ideal husband, and when misfortune over took him, he failed in business in Columbia where we have so many warm friends; he than accepted a position as a traveling salesman. There he did well, was true to his family, but at last the evil one tempted him, and he fell as so many good men do. Woman had been his ruin — not one but many — and my life has been wrecked, and that woman did it. But if the prayers of a heartbroken wife and daughter ever...