Cole v. Cole

• Decision Date: 30 October 1894
• Citation: 38 N.E. 703,153 Ill. 585
• Parties: COLE v. COLE et al.
• Court: Illinois Supreme Court

153 Ill. 585

38 N.E. 703

COLE

v.COLE et al.¹

Supreme Court of Illinois.

Oct. 30, 1894.

Appeal from circuit court, Sangamon county.

Bill for partition by Emma Cole and others against Catherine Cole. Complainants obtained a decree. Defendant appeals. Affirmed.

Conkling & Grout, for appellant.

Patton & Hamilton, for appellees, as to the presumption of the validity of a second marriage during the lifetime of the first husband or wife, cited Ellis v. Ellis, 58 Iowa, 720, 13 N. W. 65;Gilman v. Sheets, 78 Iowa, 499, 43 N. W. 299.

WILKIN, C. J.

This is an appeal from a decree assigning and ordering partition of certain real estate rendered by the court below upon a bill in chancery by appellees against appellant. The bill alleged title to the premises in one George Cole, who died intestate, seised thereof, leaving certain brothers and sisters, his only heirs. Emma Cole claimed dower as his surviving widow. Appellant was made defendant to the bill, with the allegation that she also claimed to be the widow of George Cole, but averring that she was never legally married to him. She answered, setting up that she was lawfully married to said George Cole, in the state of Indiana, September 28, 1888, and lived with him as his wife from that time until his death. She denied that the complainant Emma Cole had any interest whatever in the premises, and claimed in her own right one-half thereof in fee, and dower in the other half. The only litigated question in the case was as to which of the two, Emma or Catherine, was the lawful surviving widow of George Cole, deceased. The court below found that issue against appellant, and entered its decree in accordance with the prayer of the bill. The only ground of reversal urged upon this appeal is that the finding against appellant was not authorized by the proofs.

It is clear from the testimony of Emma Cole, as well as that of other witnesses, that she was legally married to the deceased in Staffordshire, England, on the 13th day of February, 1865, and there lived and cohabited with him for about one year, when he deserted her, and came to this country. She continued to live in England, and still resides there. He never returned to that country. He married one Amelia Hahn, in Sangamon county, this state, in 1875, and lived with her until about 1887, when she obtained a divorce from him; and he soon after went to Brazil, Ind., and there, on the 18th of September, 1888, married appellant, and lived with her until his death, about one year later.

The question is, was this last marriage void, because of the former one to Emma Cole? Counsel for appellant insist, as a matter of law, that, her marriage being proved, the presumption in favor of its validity is such as to cast the burden upon those questioning it, to show its illegality, and therefore that, unless Emma Cole has proved that the marriage between herself and George Cole was never dissolved, his marriageto appellant must be held valid. As a general statement of the rule of evidence in this state in such cases, the proposition is supported by Schmisseur v. Beatrie, 147 Ill. 210, 35 N. E. 525, and cases there cited. But counsel for appellee insist upon the authority of the decision by the supreme court of Iowa that the presumption in favor of the validity of a second marriage, where the husband or the wife of the first is shown to be living, only places a burden of proving that the first has not been dissolved when it is shown that the acts and conduct of both parties have in some way been inconsistent with the continuance of the marriage relations; and it is contended that without this qualification great injustice may be done an innocent wife, through the willful wrong of her husband. She, it may be said, remains true to her marriage vows. He deserts her, without cause, goes to a foreign country, and contracts a second, void marriage. She may be, and generally is, in such a case, powerless to prove that he had not, at some time, in some jurisdiction, obtained a divorce. Shall she, upon a mere presumption of his innocence, be deprived of all her rights, as a wife or widow, because she cannot produce such negative proof? We do not think a fair construction of our decisions could logically lead to such a result. It the Schmisseur Case, supra, we said: ‘Although the responsibility was upon the complainants of proving the negative contention that a divorce had not been obtained before the marriage of 1876, yet it is well...