80 So. 186 (La. 1918), 23054, Succession of Thomas
|Citation:||80 So. 186, 144 La. 25|
|Opinion Judge:||SOMMERVILLE, J.|
|Party Name:||Succession of THOMAS. v. THOMAS et al THOMAS et al.|
|Attorney:||Smith & Carmouche, of Crowley, for appellants. Philip S. Pugh, of Crowley, and W. R. Blain, of Beaumont, for appellees.|
|Judge Panel:||O'NIELL, J., takes no part having been absent during the argument. PROVOSTY, J., absent on account of illness, takes no part.|
|Case Date:||November 04, 1918|
|Court:||Supreme Court of Louisiana|
Rehearing Denied December 2, 1918
(Syllabus by the Court.)
A marriage which has not been dissolved by death, or by divorce, remains a valid, existing marriage; and neither party thereto can contract a second marriage.
The evidence of a second marriage, where a preceding marriage has not been dissolved by divorce, must be clear and positive.
A divorce will not be presumed, where the evidence is positive that it does not exist, and the party alleging it fails to produce any testimony concerning it, except the alleged declaration of the deceased spouse to that effect during his lifetime.
Good faith will not be presumed on the part of a mature woman who enters into a marriage with a man whom she knows to be already married, when she has no evidence of a divorce beyond the assertion of the man whom she says she has married.
Joseph J. Thomas died in the parish of Acadia, where he left an estate. Mrs. Annie Brown Thomas, of North [144 La. 26] Carolina, his wife, and Miss Annie Thomas, his daughter, caused the necessary probate proceedings to be instituted in Acadia, and asked that the Crowley Bank & Trust Company be appointed administrator. That application was opposed by Mrs. Mollie Martin Thomas, claiming to be the widow of the said J. J. Thomas, and by Roy Thomas, claiming to be the son of said union.
Mrs. Mollie Martin Thomas, in her petition, 'denies the marriage of her said husband with the said Mrs. Annie Brown.' She further averred that --
'she married the deceased, J. J. Thomas, in good faith and without the slightest knowledge on her part of any prior marriage by him, * * * the said marriage taking place in Lake Charles, La., many years ago, and that they have lived together as man and wife ever since that time; two children, Roy Thomas, a major, and J. Grey Thomas, a minor, being the issue of the marriage aforesaid.'
The administrator, the Crowley Bank & Trust Company, having sold the property and paid the debts, called upon the two plaintiffs and the two opponents to settle their rights contradictorily with each other, so that it could distribute the assets of the said estate to the proper parties.
Mrs. Annie Brown Thomas and her daughter answered the petition of the administrator, claiming the whole estate as the widow and child of the deceased, and they opposed any claim set forth by the others. Mrs. Mollie Martin Thomas, individually and as guardian of her minor son, J. Grey Thomas, issue of the union between the said Mrs. Mollie Martin Thomas and the deceased, and Roy Thomas, also claiming to be a son of said union, answered the petition of the administrator, denying the claims of the others -- Mrs. Annie Brown Thomas and Miss Annie Thomas.
Mrs. Mollie Martin Thomas further answered that:
'She was married to J. J. Thomas in good faith and without any knowledge that he was a [144 La. 27] married man, if so he was, which is emphatically denied, in the fall of 1893, at Lake Charles, Louisiana. * * *'
Further, that all the property left by J. J. Thomas was acquired during the community existing between her and the said Thomas, and that she, together with her two children, are entitled to be recognized as the widow in community and sole heirs of the said J. J. Thomas.
'Respondent specially denies that the said J. J. Thomas was ever married to the said Mrs. Annie Brown Thomas, claiming to be the widow of the said J. J. Thomas, deceased, or, if he was, which is denied, that he was divorced from her long before the marriage of the said J. J. Thomas to your respondent.'
She claimed to be, if not the real wife, then the putative wife, of J. J. Thomas, with all the legal effects springing from such union, and she asked that her two children be recognized as the children of said union, with all the civil effects springing from the alleged marriage. In the alternative, she claimed that, if the court should find that J. J. Thomas had been legally married and not divorced at the time that she married him, then that she was entitled to one-fourth of the estate of her said husband as a widow in necessitous circumstances.
There was judgment entered in the following words:
'The court having orally assigned that it was of the opinion that both Mrs. Annie Brown Thomas and Mrs. Mollie Martin Thomas were the legal wives of the deceased, and no evidence...
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