Allen v. Wallis, 83-64

Decision Date02 May 1983
Docket NumberNo. 83-64,83-64
Citation650 S.W.2d 225,279 Ark. 149
PartiesOneta ALLEN, Fletcher Harold Allen & Aleta M. Hamlin, Appellants, v. Jean WALLIS, Appellee.
CourtArkansas Supreme Court

Jack M. Lewis, Clinton, for appellants.

Dan Stripling, Clinton, for appellee.

HICKMAN, Justice.

This is an appeal from the Probate Court of Van Buren County, Arkansas, which found the appellants, the three children of Fletcher Haywood Allen, were not Allen's legitimate children, and, therefore, not lawful heirs of Allen's uncle, Wager Kirkwood, who died intestate in 1979. The judge held the appellee, Jean Wallis, to be the only legitimate child of Allen.

The probate judge based his decision on two erroneous premises: The first was that the appellants' claim accrued before the law was changed allowing illegitimates to inherit; the second error was holding that the appellants had to prove their parents were married by clear, cogent, and convincing evidence. We would uphold his decision even though the wrong reasons were used, if he had reached the right result. But since we find by a preponderance of the evidence that the parents were married and that the appellants were entitled to inherit through their father pursuant to Ark.Stat.Ann. § 61-141 (Supp.1981), we reverse the judgment.

The appellants' parents had lived together about seventeen years, holding themselves out as husband and wife. There is no doubt about that; but also there is no doubt the appellants could not produce a marriage certificate. They had three children: Oneta Allen, Fletcher Harold Allen, and Dixie Aleta Marie Hamlin.

Allen lived in Texas with the children's mother for a time in 1943, and Texas is a state which recognizes common-law marriages. They lived in Arkansas from 1944-1947, and from 1948 until 1961, when they separated. Fletcher Allen died in 1969.

Apparently it was at Fletcher Allen's death that his daughter, Jean Wallis, a child of a prior marriage, learned that her father had other children. Mr. Allen's uncle died in 1979 and an administrator was appointed. By the law of descent and distribution one-half of his estate would go to Fletcher Allen's children and one-half to other heirs. It is only the half to go to Fletcher Allen's children that was disputed. The appellee filed a petition for the court to determine heirs and the appellants were served notice. At this time Aleta was twenty-six years old, Fletcher was twenty-one, and Oneta was twenty.

The facts are largely undisputed. Appellant Fletcher Harold Allen said he never knew his parents were not married. The birth certificates of all three children showed Fletcher Allen as the father; two of the certificates had "Mrs. Fletcher Allen" and "Iva Allen" as the mother. The appellants conceded that no certificate of marriage could be produced. Testimony was offered that the Allens lived in Texas in 1947 and held themselves out as husband and wife.

In 1948 Fletcher Allen mailed Iva a postcard in Indiana, a state which recognizes common-law marriages, and addressed it to "Mrs. Fletcher Allen." In Clarksville, Arkansas, a newspaper announcement appeared announcing the birth of Dixie Aleta Marie, daughter of Mr. and Mrs. Fletcher Allen, in 1953.

The probate judge denied the claim on the two premises we have recited, but he found unequivocally that the appellants were indeed the children of Fletcher Allen. However, he held that they could not inherit as illegitimate children pursuant to Ark.Stat.Ann. § 61-141 because their claim was barred by our decision in Frakes v. Hunt, 266 Ark. 171, 583 S.W.2d 497 (1979), which held that Trimble v. Gordon, 430 U.S. 762, 97 S.Ct. 1459, 52 L.Ed.2d 31 (1977), which allowed illegitimates to inherit, could not be applied retroactively and Fletcher Allen had died in 1969. This was wrong because the children did not become heirs of their uncle until the uncle's death in 1979, and not at the death of their father in 1969. Lucas v. Handcock, 266 Ark. 142, 583 S.W.2d 491 (1979). Even so, our disposition of the case rests on the fact that there was a preponderance of the evidence that the Allens had a marriage according to Texas law.

The probate judge found that the appellants had not proved the common-law marriage by clear, cogent and convincing evidence. That was an incorrect statement of the appellants' burden. The appellants need only show the marriage by a preponderance of the evidence. See Evatt v. Miller, 114 Ark. 84, 169 S.W. 817 (1914)...

To continue reading

Request your trial
9 cases
  • Powell v. Lane
    • United States
    • Arkansas Supreme Court
    • December 11, 2008
    ...together as husband and wife for over eight years after their ceremonial marriage and birth of their son. In Allen v. Wallis, 279 Ark. 149, 152, 650 S.W.2d 225, 227 (1983), this court stated that "[w]here there is cohabitation apparently matrimonial, a strong presumption of marriage arises ......
  • Craig v. Carrigo
    • United States
    • Arkansas Supreme Court
    • June 26, 2003
    ...recognize marriages contracted by law in other states. See Brissett v. Sykes, 313 Ark. 515, 855 S.W.2d 330 (1993); Allen v. Wallis, 279 Ark. 149, 650 S.W.2d 225 (1983). A person seeking to prove the creation of a common-law marriage in another state or country must do so by a preponderance ......
  • Stokes v. Heckler, 85-1395
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • September 26, 1985
    ...and have held themselves out to the public as husband and wife, particularly if children have been born of the union. Allen v. Wallis, 279 Ark. 149, 650 S.W.2d 225 (1983). In such situations, even if a spouse from an earlier marriage is still living, Arkansas law presumes the earlier marria......
  • O'Dell v. Rickett
    • United States
    • Arkansas Court of Appeals
    • September 28, 2005
    ...requires that there are some affirmative defenses which must be pled. Res judicata is such an affirmative defense. Allen v. Wallis, 279 Ark. 149, 650 S.W.2d 225 (1983); Kendrick v. Bowden, 211 Ark. 199 S.W.2d 740 (1947). For a trial judge to raise an affirmative defense sua sponte that must......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT