Succession of Thomas, 23054

• Decision Date: 04 November 1918
• Docket Number: 23054
• Parties: Succession of THOMAS. v. THOMAS et al THOMAS et al.
• Court: Louisiana Supreme Court

80 So. 186

144 La. 25

Succession of THOMAS.

THOMAS et al. v. THOMAS et al

No. 23054

Supreme Court of Louisiana

November 4, 1918

Rehearing Denied December 2, 1918

SYLLABUS

(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.

Smith &amp Carmouche, of Crowley, for appellants.

Philip S. Pugh, of Crowley, and W. R. Blain, of Beaumont, for appellees.

O'NIELL, J., takes no part having been absent during the argument. PROVOSTY, J., absent on account of illness, takes no part.

OPINION

SOMMERVILLE, J.

Joseph J. Thomas died in the parish of Acadia, where he left an estate. Mrs. Annie Brown Thomas, of North 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 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 showing that Mrs. Annie Brown Thomas was ever divorced, and that they are, therefore, both entitled to something, it is therefore, for the said reasons and because the law and the evidence are in favor thereof, ordered, adjudged, and decreed that there be judgment herein declaring them both the legal wives of J. J. Thomas, deceased, and both entitled to share equally in the estate, and the Crowley Bank & Trust Company is ordered to carry out the provisions of this decree after paying all costs herein.'

J. J. Thomas could not have left two legal wives at the date of his death. His marriage to Mrs. Annie Brown Thomas had not been dissolved by divorce; and he could not have entered, and did not enter, into a second marriage with Mrs. Mollie Martin Thomas.

Mrs. Annie Brown Thomas and her daughter have appealed; and Mrs. Mollie Martin Thomas, individually and as tutrix, and her son, have asked for an amendment of the judgment appealed from.

The marriage of J. J. Thomas and Mrs. Annie Brown Thomas has been abundantly proved, and that marriage has not been seriously contested in this court. The evidence conclusively showed that Mrs. Annie Brown Thomas and her daughter, Miss Annie Thomas, were the widow and child of J. J. Thomas.

Mrs. Mollie Martin Thomas and her son present the following proposition of law:

'That the burden of proof after a prior marriage has been proved rests upon the first wife to show that there has been no divorce, and this burden has never been discharged.'

Several cases are referred to on the brief, which may support the proposition advanced; but they are not in line with the jurisprudence of this state and of many other jurisdictions. In the first place, Mrs. Mollie Martin Thomas, in our opinion, has failed to prove her marriage to J. J. Thomas. She, alone, testifies to the marriage. No witness was produced on the trial who knew of the marriage, except by the announcement of the parties themselves that they had been married. According to Mrs. Mollie Martin Thomas' testimony, she and Mr. Thomas had been friends for many years, first in the little village of Point Clear, Ala.; and afterwards they corresponded for many years. In 1893, she says, Mr. Thomas proposed that she leave her home in Pensacola and go to New Orleans, where he would meet her, and that they would take a trip to Chicago to attend the World's Fair. She further says that she and a female friend, who is now dead, went to New Orleans and met Mr. Thomas, who had gone from Crowley, La., his home; that they three went to Chicago, where they spent two weeks; that they returned to Louisiana, and, on the suggestion of Mr. Thomas, she went to Crowley with him, and her female companion returned to Pensacola; that she went to Crowley merely to look at the country, to see how she liked it, and without any thought of marrying Mr. Thomas; after two days, they left Crowley and went to Lake Charles, and were married by a justice of the peace, in the presence of two male friends. The witness has no marriage certificate, and never had any; she does not remember the name of the justice of the peace who performed the ceremony, or the names of the two witnesses. She does not remember the name of the hotel at which they stopped after the ceremony. She simply says that the day after the ceremony they returned to Crowley and announced to Mr. Thomas' friends that they were husband and wife. It is shown by witnesses that the couple were received by the people of Crowley as husband and wife, that they lived together as such, and that she bore him two children. It was further shown that the records of Lake Charles were burned, and that the names of the two justices of the peace there in 1893 could not be obtained. It is unfortunate if the couple went to Lake Charles, where the records have been burned, when they might have been accommodated at some place much nearer to Crowley.

This evidence is not sufficient to base a judgment declaring that J. J. Thomas and Mrs. Mollie Martin Thomas were married.

The court said in the case of Powers v. Charmbury's Ex'rs, 35 La.Ann. 630:

'In the interest of persons who were the issue of marriages of which no direct proof could be adduced, and in the interest of legitimacy, courts have somewhat relaxed the rigor of the precept, and have sanctioned the rule which allows the proof of marriage by reputation, long cohabitation, and by other circumstantial evidence. But such evidence must show that the beginning of the relations between the parties must have been characterized by the free consent of the parties to contract the obligations and to assume the responsibilities of marriage; and the evidence must exclude the idea that the union began and that the parties were drawn together merely through the promptings of sensuality. Such conditions, even when followed by long cohabitation, although openly or publicly acknowledged, can result in nothing but concubinage, the parent of bastardy, the immoral impediment to marriage, and the fruitful source of shame and...