Schmisseur v. Beatrie

• Decision Date: 27 October 1893
• Citation: 35 N.E. 525,147 Ill. 210
• Parties: SCHMISSEUR et al. v. BEATRIE et al.
• Court: Illinois Supreme Court

147 Ill. 210

35 N.E. 525

SCHMISSEUR et al.

v.BEATRIE et al.¹

Supreme Court of Illinois.

Oct. 27, 1893.

Appeal from circuit court, St. Clair county; A. S. Wilderman, Judge.

Bill by Elizabeth Schmisseur and others against August and Elizabeth Beatrie. Decree for defendants. Complainants appeal. Reversed.

Dill & Schaefer, for appellants.

Marshall W. Weir and James M. Hay, for appellees.

MAGRUDER, J.

This is a bill filed on July 16, 1892, in the circuit court of St. Clair county, by Elizabeth Schmisseur and Mary Wuest and their husbands against August Beatrie and Elizabeth Beatrie, for the partition of certain lands. The defendants, who are minors, answered by their guardian ad litem. Upon hearing had, the decree of the court below was in favor of the defendants upon the material issues involved, and this appeal is prosecuted from said decree by the complainants.

Mary Beatrie, the wife of Nicholas Beatrie, died testate on September 27, 1890, owning certain lands in said county, and provided in her will, after giving her husband the sole and exclusive use and control of her property, real and personal, during his life, that, after his death, all her property, both real and personal, should descend to her ‘lawful heirs, according to the laws of descent.’ On March 25, 1892, Nicholas Beatrie, her husband, died testate as to the major portion of his estate, but intestate as to some of his real estate. Said Nicholas and Mary left two daughters, the appellants Elizabeth Schmisseur and Mary Wuest. They had had a son, Nicholas Beatrie, Jr., who died before either of them, to wit, in the year 1880, leaving two children, the appellees, August Beatrie and Elizabeth Beatrie. The question in the case is whether or not the appellees are the legitimate children of Nicholas Beatrie, Jr., deceased. If they are his legitimate children, then the decree correctly finds that, as the grandchildren of Mrs. Mary Beatrie, deceased, they are each entitled to an undivided one-sixth part of the real estate of which she died seised, and that, as the grandchildren of Nicholas Beatrie, Sr., they are each entitled to an undivided one-sixth part of the real estate owned by him at his death, and as to which he died intestate. The case turns upon the validity or invalidity of the marriage of Nicholas Beatrie, Jr., the father of appellees, with Margaret Hube, their mother. It is conclusively proven that said Nicholas Beatrie, Jr., and Margaret Hube, of St. Clair county, were married by a justice of the peace of said county on November 14, 1876, under a marriage license duly issued on that day by the county clerk of that county. It is claimed, however, by the appellants, that at this time Nicholas Beatrie, Jr., had a wife by a former marriage, who was then still living and undivorced.

A second marriage is void where either of the parties to it has a husband or wife by a former marriage who has never been divorced and is still living. Gordon v. Gordon, 141 Ill. 160, 30 N. E. Rep. 446; Brown v. Brown, 142 Ill. 409, 32 N. E. Rep. 500. It is proven that on November 12, 1872, said Nicholas Beatrie was married to Barbara Anstead, of said county, by a Catholic priest in said county, in pursuance of a marriage license duly issued by the county clerk of said county on November 8, 1872. He and said Barbara had one child, which died in infancy. They lived together as man and wife for about one year and a half or two years, in said county, and then separated, and never lived together again. She was living at the time of the marriage with Margaret Hube, and did not die until 1885, five years after the death of Nicholas Beatrie, Jr. One witness swears that she married one John Meyer after she separated from said Nicholas, and before the latter's second marriage, in November, 1876.

When a marriage has been solemnized according to the forms of law, every presumption will be indulged in favor of its validity. The presumption is one in favor of innocence, as it will be presumed that a man will not commit the crime of bigamy by marrying a second time while his first wife is living. Johnson v. Johnson, 114 Ill. 611, 3 N. E. Rep. 232. Absence for seven years, without being heard from, creates the presumption of death. But the presumption in favor of the validity of the marriage is so strong that a former husband or wife will be presumed to be dead after an absence of less than seven years. The ordinary presumption in favor of the continuance of human life is made to give way to the presumption in favor of the innocence of a second marriage. Yates v. Houston, 3 Tex. 433; Johnson v. Johnson, supra. In the present case, however, no presumption as to the death of Barbara Beatrie can be indulged in favor of the validity of the marriage with Margaret Hube, because the proof shows affirmatively that said Barbara was alive when said marriage took place, and for nine years thereafter. It is claimed, however, in behalf of the appellees, that Nicholas Beatrie, Jr., will be presumed to have been divorced from his first wife before he married the second one. We have said the courts ‘will often presume a previous divorce in order to sustain a second marriage.’ Cartwright v. McGown, 121 Ill. 388, 12 N. E. Rep. 787. Bishop, in his work on Marriage, Divorce, and Separation, says: ‘In a general way, it is sufficiently established that, to sustain a second marriage, a dissolution of the former one by divorce will be presumed, but a living apart will not commonly create such presumption, and the authorities are not otherwise quite distinct as to the precise limits of the doctrine.’ Bish. Mar., Div. & Sep. § 1145. The two marriages of Nicholas Beatrie, Jr., and the existence of the first wife at the time of the second marriage, being established by proof, the presumption would arise in favor of a divorce from his first wife in order to sustain the second marriage. In view of this presumption, the burden of proof rested upon the appellants, as the objecting parties, to show that there had been no divorce. The law is so positive in requiring a party who asserts the illegality of a marriage to take the burden of proving it that such requirement is enforced, even though it involves the proving of a negative. Boulden v. McIntire, 119 Ind. 574, 21 N. E. Rep. 445.

In order to show that there had been no divorce, the complainants below introduced the bill and other proceedings in a divorce suit begun by Nicholas Beatrie, Jr., against Barbara Beatrie. The bill in that suit was filed on November 14, 1876, in the circuit court of St. Clair county. It alleged that said Nicholas was married to said Barbara on November...