Jones v. Gilbert

• Decision Date: 01 November 1890
• Citation: 25 N.E. 566,135 Ill. 27
• Parties: JONES et al. v. GILBERT.
• Court: Illinois Supreme Court

135 Ill. 27

25 N.E. 566

JONES et al.

v.GILBERT.¹

Supreme Court of Illinois.

Nov. 1, 1890.

Appeal from circuit court, Calhoun county; CYRUS EPLER, Judge.

Bill by Elizabeth Gilbert against C. P. Jones, H. H. Jones, Nancy C. Jones, James V. Jones, and Hulda Jones, for dower and homestead in the lands of John W. Jones, deceased. Defendants C. P. and H. H. Jones appeal.

T. J. Selby and E. A. Pinero, for appellants.

Jos. S. Carr, for appellee.

SHOPE, J.

The principal question presented by this record is one of fact, and is whether there was a lawful marriage between the complainant in the original bill and the decedent, John W. Jones. That a marriage was solemnized between them, in due form of law, September 22, 1864, is clearly and satisfactorily shown. The solemnization of the marriage was followed by their living together as husband and wife in the same community until the death of the husband substantially [135 Ill. 31]20 years later. During that time they recognized each other as husband and wife, and were so recognized by all their neighbors. There was born, issue of such marriage, three children, viz., Nancy C., James V., and Hulda, who were made defendants to the original bill with appellants who were children of said John W. Jones by a former deceased wife. It is contended, however, that the marriage of complainant with the decedent was illegal for the reason that she at the time of its solemnization had a lawful husband living from whom she had not been divorced. When a marriage in fact is shown, the law raises a strong presumption in favor of its legality, and the burden is cast upon the party objecting to its validity to prove such facts and circumstances as establish its invalidity. Bish. Mar. & Div. §§ 457, 458; Johnson v. Johnson, 114 Ill. 611, 3 N. E. Rep. 232. Moreover the effect of sustaining the cross-bill of appellants would be to illegitimize the fruits of the marriage of complainant and John W. Jones, and, by bastardizing complainant's children, deny their right to participate in the estate of which said Jones died seised. See Orthwein v. Thomas, 127 Ill. 554, 21 N. E. Rep. 430. But it will be unnecessary to extend this opinion by a discussion of that rule, for, upon the facts shown, we are of opinion that appellants have failed to establish the in validity of the marriage. To show that the marriage was invalid, the complainants in the cross-bill introduced one George W. Kuhns, who testified that he was married to Elizabeth Jones in Pike county, Ill., in October, A. D. 1863, something less than a year prior to complainant's marriage with John W. Jones; that they lived together a week and three days, when she stole what he had, and left him. After she left, he made no inquiries about her, but some 24 years afterwards, went with one of appellants to see her, and identified her as his former wife. About three years after she deserted him, he, without being divorced, married again, and is still living with the woman he then married. He had not seen her in the interval. He saw her, if at all, only a moment, as he says, at the time he was taken into her presence by appellant. There is much in the testimony of this witness tending to stamp it as unreliable. Conceding it to be true that he married Elizabeth Jones in 1862, in Pike county, Ill., as he claims, and as claimed is shown by the records of that county, still there is no sufficient identification of the complainant as being the same person. She was a competent witness to testify in respect of the alleged interview testified to by Kuhns, and she denied ever having seen him at any time or anywhere, or that she even knew him, or knew anything about him. The chancellor was fully justified in holding that the evidence was insufficient to establish the invalidity of the marriage of complainant with said John W. Jones; and in deciding that the complainant in the original bill was entitled to dower and homestead, and dismissing the cross-bill of appellants.

We are of opinion, however, that the court erred in establishing a lien in favor of complainant in the original bill, for the entire amount paid by her to release the homestead premises from the lien of the mortgage to Lumley. The extinguishment of the lien was necessary for the preservation of the estate, and her interest of homestead and dower should be required to contribute to its discharge. Selb v. Montague, 102 Ill. 446;Montague v. Selb, 106 Ill. 49;Selb v. Mabee, 14 Ill. App. 574. The husband in his life-time had created the lien to which the estate, including the right of homestead, was subject, as we understand the record, and, if the heir discharged it, the homestead interest would have been required, under the rulings of this court, to contribute ratably; and, its discharge being necessary to the preservation of the interest of the heir, as well as of the right of homestead, when the lifetenant discharges the lien, the heir will be required to contribute his ratable proportion of the explense incurred. This rule is in the highest degree equitable, and should have been adopted. No reason can be perceived why the duty of contributing should not be mutual and reciprocal, and it cannot logically be said that, when the heir extinguishes the...