Alabama Pension Commission v. Morris, 3 Div. 359.

• Decision Date: 06 November 1941
• Docket Number: 3 Div. 359.
• Citation: 242 Ala. 110,4 So.2d 896
• Parties: ALABAMA PENSION COMMISSION et al. v. MORRIS.
• Court: Alabama Supreme Court

4 So.2d 896

242 Ala. 110

ALABAMA PENSION COMMISSION et al. v. MORRIS.

3 Div. 359.

Supreme Court of Alabama

November 6, 1941

Rehearing Denied Dec. 18, 1941.

Thos S. Lawson, Atty. Gen., and Clarence M. Small, Asst. Atty Gen., for appellants.

Hill, Hill, Whiting & Rives, of Montgomery, for appellee.

BROWN Justice.

The appeal is from a judgment of the circuit court awarding peremptory mandamus to appellants, the Pension Commission functioning under Code of 1940, Tit. 60, § 1, "to certify to the State Department of Public Welfare that the petitioner, (appellee here) is entitled to pension as the widow of Samuel Cary Morris, a Confederate soldier," entitled to draw a pension, and commanding said Commission "to cause the proper warrant or warrants to be drawn on the Treasurer of the State of Alabama for the payment to the petitioner of the sum of $4618.40 so due her as such pension, and to place her name on the permanent pension roll of the Alabama Pension Commission as the widow of a Confederate soldier entitled to draw a pension."

The sum of $4,618.40, awarded by the judgment, was allowed as "back pension" extending back through the years including 1902.

The facts admitted by the answer briefly stated, are: Petitioner, Ella Pope Morris, married Samuel Cary Morris, a Confederate soldier, in Macon County, in the year, 1877; they remained citizens of Alabama, and lived together continuously until his death in January, 1902. Said Samuel Cary Morris, was a native of Chambers County, and remained a citizen of the state during his life. He served as a soldier in the army of the Confederate States during the entire period of the war.

At the time of the death of said Morris, petitioner was within the class of widows of Confederate soldiers entitled to the benefits of the law providing pensions for Confederate soldiers and sailors, and the widows of such soldiers and sailors, but did not apply therefor.

Petitioner, in May, 1906, married Burnett Moore, a Confederate soldier entitled to draw a pension, and lived with him until April, 1926, on which date she was divorced from Moore by decree of the circuit court of Lee County. Moore died in December, 1926. Since the death of Moore petitioner made application for pension as the widow of Samuel Cary Morris, and her application was rejected by the appellant Commission.

The question presented to the circuit court and here is one of law. Did petitioner's marriage to Moore preclude her from claiming such pension as the widow of Morris? See Helms v. Alabama Pension Commission et al., 231 Ala. 183, 163 So. 807.

Prior to the passage and approval of Act No. 126, of June 27, 1927 Acts Reg.Session, 1927, pp. 87-88, Code 1940, Tit. 60, § 8, the remarriage of a widow of a Confederate soldier or sailor barred her right to...