Bell v. Bell

• Decision Date: 15 May 1913
• Citation: 62 So. 833,183 Ala. 645
• Parties: BELL et al. v. BELL et al.
• Court: Alabama Supreme Court

62 So. 833

183 Ala. 645

BELL et al. v. BELL et al.

Supreme Court of Alabama

May 15, 1913

Rehearing Denied June 30, 1913

Sayre and De Graffenried, JJ., dissenting.

Appeal from Circuit Court, Jefferson County; John C. Pugh, Judge.

Proceeding for the determination of distributees of the estate of Jim Bell, deceased. Property having been awarded to George Bell and others, and a motion for new trial by Mary Bell and others having been denied, they appealed to the circuit court, where the judgment of the probate court was reversed and judgment rendered for Mary Bell and others, from which George Bell and others appeal. Reversed and remanded, with instructions.

David S. Anderson, of Birmingham, for appellants.

Bondurant & Smith, of Birmingham, for appellees.

MAYFIELD J.

The sole bone of contention in this case is, Who are the distributees of the estate of one Jim Bell, deceased, on account of whose wrongful death his administrator had received $1,000 for distribution as provided by the statute? The question was properly raised in the probate court, the evidence was there heard ore tenus, and the probate judge decided the question in favor of appellants. An application for new trial was made in the probate court by appellees, and a great number of affidavits, in support of and in opposition to the motion, were introduced in evidence. The motion was denied by the probate court, and appellees (here) appealed to the circuit court, as is authorized by section 2855 of the Code. The trial was had in the circuit court on a transcript of the proceedings in the probate court, and the circuit judge, as an appellate court, by virtue of section 2865 of the Code, reversed the judgment of the probate court, and rendered judgment for appellants there (appellees here); and from that judgment this appeal is prosecuted to this court as is authorized by section 2857 of the Code.

The progenitors of these respective statutes were construed by this court in the case of Nooe's Ex'r v Garner's Adm'r, 70 Ala. 443, which was a proceeding very similar to this, though the question of fact to be determined was different. The rules of evidence as to the weight and sufficiency of evidence to justify an affirmance, a reversal, or a rendition, on the respective appeals, were thus declared by this court:

"Our former decisions have declared three rules, from which we have no wish to depart:

"First. When a contest of fact, properly triable before a jury, is, by consent, submitted to the judge presiding for decision. In this class of cases, this court will not review the finding of the judge on the facts, any more than it would the finding of a jury. It is not assignable as error. Etheridge v. Malempre, 18 Ala. 565; Barnes v. Mayor, 19 Ala. 707; Bott v. McCoy, 20 Ala. 578 ; De Vendell v. Hamilton, 27 Ala. 156. We have a recent statute which authorizes the submission of disputed questions of fact to the court without a jury, but it does not affect this case. Code of 1876, § 3029.

"Second. When the case is properly triable before the court, as in chancery causes, but is tried on testimony reduced to writing, not examined in the presence of the court. A finding thus rendered is presumed to be correct, and will not be reversed in this court, unless there is a decided preponderance of evidence against the conclusion he attained. Rather v. Young, 56 Ala. 94; Bryan v. Hendrix, 57 Ala. 387.

"Third. When the law authorizes the disputed question to be tried, and it is tried, by the court without a jury, on testimony

given viva voce in the presence of the court. In such cases the rule is not to reverse the finding, unless it is so manifestly against the evidence that a judge at nisi prius would set aside the verdict of a jury rendered on the same testimony." 70 Ala. 446, 447.

After a careful examination of this record we are of the opinion that we should render a like judgment in this case to that rendered in Nooe's Case, supra. We have reached the conclusion that the probate judge rendered the proper judgment on the original hearing, but that he should have awarded a new trial on the showing made by movents, and that the circuit judge should have reversed and remanded to the probate court for a new trial, instead of reversing and rendering, as he did.

The sole disputed question was and is whether or not appellant here, Cornelia Jackson, was ever legally married to the deceased, Jim Bell, or whether their marriage as freedman and freedwoman was ratified and confirmed by the ordinance of September 22, 1865, relative to this subject. If the evidence of Cornelia Jackson is true, there was a valid marriage between her and Jim Bell, and George Bell, the other appellant here, is their legitimate child, and hence the subsequent marriage between the appellee, Mary Bell, and deceased, was bigamous and void, and the daughter of this marriage, the other appellee, is an illegitimate child. As before stated, we are of the opinion that the evidence on the original trial before the probate court fully justified the probate judge in finding as he did, but that a sufficient showing was made, on the application for a new trial, to require that the probate judge order a new trial. This, in order that the testimony of Cornelia Jackson might be disproved if untrue, or corroborated if true. There is left no room to doubt from this record that the relation of husband and wife existed between Cornelia Jackson and the deceased prior to deceased's formal marriage to Mary Bell, and that George Bell is the child of that relation; but whether this relation was legal or illegal, and whether ratified by the ordinance of the Constitution of 1865, was the only disputed question. Upon its solution depend all other questions.

It was said by this court in the case of Washington v. Washington, 69 Ala. 281, in passing upon a similar question, and which was the first case construing the ordinance and declaring its effect: "As matter of fact, by universal usage, by the encouragement and consent of the master, the relation of husband and wife was formed between slaves, and often the marriage solemnized by the rites and ceremonies attending the solemnization of the marriage of their owners. The moral obligation resulting from the union the master enjoined them to observe, and public sentiment so far respected the union that the master who wantonly separated husband and wife provoked from his neighbors indignation and reproach. While, in the contemplation of law, there was not a binding or obligatory marriage, there was a union of moral force and obligation. In Smith v. State, 9 Ala. 996, said Ormond, J., 'whilst we admit tne moral obligation which natural law imposes in the relation of husband and wife among slaves, all its legal consequences must flow from the municipal law.' "

In the case of Woods v. Moten, 129 Ala. 228, 30 So. 324, it was said: "After emancipation, in order to ratify marriages between freedmen and freedwomen, and to legitimate the issue of such marriages or cohabitations, the convention of the people on the 29th of September, 1865, passed an ordinance declaring, among other things, that 'in all cases of freedmen and freedwomen, who are now living together recognizing each other as man and wife, be it ordained that the same are hereby declared to be man and wife, and bound by legal obligations of such relationship.' 'The issue of such marriage or cohabitation are hereby legitimatized, and shall be held to the same relations and obligations from and to their parents, as if born in lawful wedlock.' Ordinance 39, Code 1867, p. 64."

It therefore follows that the judgment of the circuit court is reversed, and the cause remanded, that that court may reverse the judgment of the probate court and remand the cause to the probate court for another trial, whereat the questions of dispute will be reopened for further proof if it can be made.

Reversed and remanded, with instructions.

DOWDELL, C.J., and ANDERSON, McCLELLAN, and SOMERVILLE, JJ., concur. SAYRE and DE GRAFFENRIED, JJ., dissent, being of the opinion that the judgment of the circuit court should be affirmed.

DE GRAFFENRIED, J. (dissenting).

Marriage is the "civil status or personal relation of one man and one woman, which was lawfully entered into, is intended to continue during their joint lives, is not dissoluble by their consent or agreement, and which involves the reciprocal rights and obligations imposed by law upon such unions." 26 Cyc. pp. 825, 832, subd. "d," and 837, subd "b." Marriage is a union for the joint lives of the man and the woman, and can only be dissolved by the death of one of the parties to that union, or by a divorce from the bonds of matrimony. A man and a woman may live together like man and wife, and yet not be man and wife. The living together must contemplate that union which is to continue through the joint lives of the parties. Anything short of that is not marriage. Of course where a common-law marriage is relied upon, the acts of the parties and all that they said and did while living together are relevant as to what the parties intended by the relations which they established with each other. Where the parties obtained a license provided by statute and were married in accordance with the forms provided by statute, then the marriage is conclusively presumed, provided both parties were, at the time, capable of contracting the particular marriage (26 Cyc. 841); and he who assails such a marriage has the burden of proof on him to show its invalidity. While it is true that the rule in this state is "that marriage, like any other fact involved in a judicial inquiry, may be proved by circumstances, and direct and positive proof of the fact is not necessary" (Bynon v. State, 117 Ala....