Ball v. Stewart
| Decision Date | 21 March 1896 |
| Parties | BALL v. STEWART. |
| Court | West Virginia Supreme Court |
Submitted January 13, 1896.
Syllabus by the Court.
A decree appearing plainly right from the competent evidence in the case will not be reversed because of the admission of incompetent evidence.
Appeal from circuit court, Mason county.
Action by Mary A. Ball against Henry W. Stewart. Judgment for plaintiff. Defendant appeals. Affirmed.
Tomlinson & Wiley, for appellant.
H. R Howard and L. C. Somerville, for appellee.
In the circuit court of Mason county, on the first Monday in January, 1892, Mary A. Ball, widow of R. H. Ball, deceased filed her bill of complaint against Henry W. Stewart defendant, claiming that she, as such widow, was entitled to be endowed of a certain tract of 200 acres of land, of which her husband during their marriage was seised of an estate of inheritance, but which had been sold during his lifetime to pay certain liens thereon, and purchased by said defendant who refused to recognize her right to dower therein. Defendant answered, admitting the most of the allegations of the bill, but denying the relief prayed, for the reason that the plaintiff had voluntarily left her husband, without such cause as would entitle her to a divorce from the bonds of matrimony or from bed and board, and without such cause, and of her own free will, was living separate and apart from her said husband at the time of his death, and for more than one year prior thereto. The plaintiff replied generally to this answer. Numerous depositions were taken, and the court decreed in favor of plaintiff. From this decree the defendant appeals, and now here relies on the following errors, to wit:
1. The insufficiency of the allegation of marriage and widowhood, and also as to the liens being subsequent to the attachment of the dower right. This is purely a technical objection, and, as it admits the truth of the general allegation of the bill that the plaintiff is entitled to dower in the land in controversy, is not tenable. Such being the case, the bill was sufficient, and the court would, by order of reference, ascertain the extent of her dower, and subordinate it to any liens having the right of prior payment.
2. The incompetency of the plaintiff's evidence, and that the competent evidence was insufficient to sustain the decree. The sole question in this case is whether the plaintiff voluntarily left her husband, without such cause as would entitle her to a divorce from the bonds of matrimony or from bed and board, and without such cause, of her own free will was living separate and apart from him at the time of his death. Code, c. 64, § 6. While man still,...
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