Wilson v. Allen
| Decision Date | 22 July 1899 |
| Parties | WILSON. v. ALLEN et al. |
| Court | Georgia Supreme Court |
WIDOW'S ALLOWANCE—PROOF OF MARRIAGE —DIVORCE—EVIDENCE.
1. On the trial of a caveat to an application for a year's support, involving the issue as to whether or not the applicant was the widow of the deceased, the burden of proof is upon her to show that she was his lawful wife at the time of his death. Where the only proof that she was lawfully married to the deceased was her statement to that effect, coupled with an admission on her part that after the marriage they lived in separate homes and she did not assume his name, no license having been shown for such alleged marriage, and where it appears further from uncontradicted testimony that there was living, at the time she claims to have been married to the deceased, another man, to whom she had been lawfully married, the burden of proving a dissolution of this former marriage by divorce was upon the applicant, especially where the applicant admits such former marriage, and claims that a divorce was granted her from her former husband by virtue of a suit therefor in the court where the trial of the caveat is being had.
2. When the only legal testimony on the subject relating to the divorce suit consisted of records of the court showing only one verdict for divorce, and an entry afterwards made on the docket that the divorce case was dismissed, it was not error for the judge to direct a verdict for the caveators. Even if there was any error in admitting or rejecting evidence throwing no light on this issue, a new trial will not be granted on account of such immaterial rulings.
3. Declarations of the former husband of the applicant, and sayings of her attorney, that such divorce was granted, are not admissible in evidence in her behalf.
4. The fact that the applicant believed that she was legally divorced from her former husband at the time of her marriage to the inte'state does not render such marriage valid.
(Syllabus by the Court.)
Error from superior court, Richmond county; E. H. Callaway, Judge.
Action by Jane D. Wilson to compel Charles B. Allen, executor, to make her an allowance as widow. Prom a judgment refusing the allowance, petitioner brings error. Affirmed.
P. E. Obenauf and Russell & Rosenfield, for plaintiff in error.
J. S. & W. T. Davidson and F. H. Miller, Jr., for defendants in error.
LEWIS, J. Jane D. Wilson filed her application to the court of ordinary of Richmond county, alleging therein that she was the widow of John Lawson Wilson, late of that county, deceased; that he died testate August 18, 1897; and that she desired to have set apart and assigned to her, either in property or money, a sufficiency from the estate of her said husband for the support and maintenance of herself for the space of 12 months from the date of administration. She alleged further that Charles B. Allen had been duly appointed executor of said estate. Commissioners were appointed as prayed for, who set aside to her the sum of $2,000 in cash; the money to be realized from the cash in the hands of the executor. To this application a creditor of the testator, and also the executor, filed objections on various grounds, one of which was that the applicant was not entitled to a year's support from the estate of the testator, because she was not the widow of the deceased, John Lawson Wilson, no valid and legal marriage ever having taken place between them. The case was appealed from the court of ordinary to Richmond superior court, and a jury impaneled to try the issues involved. After the testimony had been concluded on both sides, the judge directed the jury to return a verdict in favor of the caveators, and against the right of the applicant to a year's support, and such a verdict was accordingly rendered. To this direction given by the court, as well as to various rulings made in the progress of the trial, plaintiff in error excepts. On the trial of the case the applicant introduced in evidence in her own behalf her application to the court of ordinary for a year's support from the estate of the deceased, John Law-son Wilson, and also the order of the ordinary appointing the commissioners, and the return of a majority of the commissioners, setting aside to her $2,000 as a year's support, and here rested her case. Caveators introduced evidence which, briefly stated, shows the following facts: On December 22, 1865, the applicant, as Jane D. Odom, married William P. Royal. On March 10, 1873, as Jane D. Royal, she was married to James R. Ellison. On December 20, 1878, as Jane D. Ellison, she was married to John M. Kelly. Proof was also introduced showing that John M. Kelly was married three times, and he died on February 22, 1898, in a hospital in Augusta, Ga. Caveators then introduced a certified copy of a petition for divorce filed September 30, 1884, to the October term, 1884, of Richmond superior court. The petition was by John M. Kelly against Jane D. Kelly, on the ground of adultery, with entries thereon by the sheriff of personal service on Jane D. Kelly on October 3, 1884. They also introduced a certified copy of a verdict of a jury finding a total divorce for the plaintiff in that case on October 28, 1885, and a copy of entries upon the docket in the divorce case as follows: " Caveators then introduced witnesses who swore that they had examined the minutes and records of the court, and could find no second verdict. The applicant testified: That she married John Lawson Wilson, the deceased, July 26, 1886, and that she lived with him as his wife, and sustained the relation of wife to him, up to the time of his death, August 18, 1897. Other people knew she was married to him. The last time she heard of John M. Kelly was about the middle of May, 1886, and she heard then that he was married. She never thought of him after that. She admitted that after her alleged marriage to Wilson she went under the name of Mrs. Ellison, because Wilson wanted her to do so, and that Wilson only came to her house at times. His washing was carried to his room on Reynolds street. At first he did not keep all his clothes at the house, because, he said, he did not want his marriage known. (An intimate acquaintance of the deceased bad testified for the caveators that he knew nothing of Wilson's marriage to the applicant...
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