Bracey v. Crisler

• Decision Date: 04 June 1928
• Docket Number: 27234
• Citation: 118 So. 138,151 Miss. 655
• Court: Mississippi Supreme Court
• Parties: BRACEY v. CRISLER et al. [*]

118 So. 138

151 Miss. 655

BRACEY v. CRISLER et al. ^[*]

No. 27234

Supreme Court of Mississippi

June 4, 1928

Division B

Suggestion of Error Overruled Sept. 24, 1928.

APPEAL from chancery court, First district, Hinds county, HON. V. J STRICKER, Chancellor.

Suit by Samella Bracey against Chas. W. Crisler, administrator of the estate of Ned Bracey, deceased, and others. From a judgment for defendants, plaintiff appeals. Affirmed.

Judgment affirmed.

Howie, Howie & Latham, for appellant.

Cited: 16 Cyc. 733-35; 21 C. 1125; DeLaval Separator Co. v. Vermont Farm Mach. Co., 135 F. 772, 774, 68 C. C. A. 474; J. W. Turnipseed v. W. H. Hudson, 50 Miss. 429; Bigelow on Estoppel, 473-480; Peart v. Chaze (D. C. La., 1926), 13 F. (2D), 908; Starnes v. U. C. (D. C. Texas, 1926), 13 F. (2D), 212.

Hendrix & Burkett, Eugene Palmer and M. A. Pilgrim, for appellees.

Cited: State v. Commercial Bank, 33 Miss. 495; Sam Silberschein v. The United States, 69 L.Ed. 256; United States v. Moser, 69 L.Ed. 262; Clemens v. Clemens, 37 N.Y. 69; Pittsford v. Chittendon, 58 Vt. 49; 2 A. L. R. 1505.

Argued orally by Virgil Howie and S. A. Latham, for appellant, and Eugene Palmer and M. A. Pilgrim, for appellee.

OPINION

ETHRIDGE, P.J.

The appellant filed a bill in the chancery court, alleging that in the year 1914 Ned Bracey and the said petitioner agreed to become man and wife and by virtue of a common-law marriage, which they were informed and believed they had a right to do, they were married, and lived together as husband and wife in the city of Jackson, said Ned Bracey furnishing a home for himself and petitioner, at which place they lived, cohabited, and held themselves as man and wife for a period of three years, and until Ned Bracey entered the United States Army during the war in 1917; that after the said Ned Bracey had entered the army, as aforesaid, the petitioner received payments from the government at various times to be used for her support, she having been named by her husband as his wife and dependent; that while in the service of the United States as aforesaid, Congress passed an act permitting those in the service of the United States Army during the said war to take out insurance from the United States government up to ten thousand dollars; that petitioner's husband, Ned Bracey, applied for insurance under the act in the amount of ten thousand dollars, naming in the policy the petitioner as wife.

She further alleged that on the 10th day of February, 1919, her husband, Ned Bracey, died, leaving the petitioner, his wife, as his sole heir, one child having been born to the petitioner and her husband, Ned Bracey, during their married life, but had died at birth; that on the 4th day of April, 1925, Chas. W. Crisler was appointed administrator of the estate of petitioner's deceased husband, Ned Bracey, and collected from the United States government the insurance due under the policy, amounting to nine thousand six hundred thirty-eight dollars, the balance of three hundred and sixty-two dollars having already been paid to petitioner by the United States government.

It was further alleged that one Cindy Bracey claimed to be the common-law wife of petitioner's deceased husband, Ned Bracey, and her daughter Peggy claimed to be his child by reason of the common-law marriage, but that the petition of said Cindy Bracey to establish her claim to the estate of Ned Bracey was denied by this court, on the ground that Cindy Bracey was not shown to have entered into a common-law marriage with said Ned Bracey, nor had they lived together as man and wife, cohabiting as such.

The bill then sets forth certain persons as defendants who are collateral heirs of Ned Bracey, and prayed for them to be made defendants, and to decree that petitioner was the legal wife and lawful heir of the said Ned Bracey, and that the funds be ordered to be paid over to the said petitioner as the lawful heir of Ned Bracey.

The defendants appeared and denied the allegation of said bill as to the marriage between Ned Bracey and Samella Bracey, setting up that they were the lawful heirs of the former, and as such entitled to the insurance in the hands of the administrator, and by way of plea in the said answer they set up that the petitioner is estopped from questioning the correctness of the decree in the former suit, in which Cindy Bracey was adjudged not to be the wife of Ned Bracey, and that the defendants were his lawful heirs, setting forth in the plea that at the January, 1927, term of the court, the petitioner, Samella Bracey, appeared and was entered as a witness, and with knowledge that this court was then endeavoring to ascertain the legal heirs of the estate of Ned Bracey with reference to the money here in question, in the hands of the administrator, at which time she had an opportunity to inform this court of any claim she may have had to the property in question, it being her duty then and there to advise the court of her claim if she had any, but that notwithstanding this fact she not only withheld and concealed from the court her alleged claim, but voluntarily and willfully testified to facts which showed that she intended the court to be informed that her relations with the deceased were illicit, and negative any marital status between her and the deceased by testifying that the deceased promised, when leaving for the United States Army, that he would marry her upon his return, and the findings of the court and the decree rendered in that cause are supported by the testimony of the claimant, petitioners in this suit, and asked to be considered, in connection with said plea, the testimony of the appellant in court record No. 26615, pages 109-112, and that for said reason the claimant be estopped and the petition dismissed.

In the former suit, Cindy Bracey et al. v. Ned Bracey, Deceased, Heirs, No. 26615, the appellee testified, among other things, as follows:

"Q. What is your name? A. Sam Ella Clayton. . . .

"Q. You say your name is Sam Ella Clayton, or Reed? A. Yes, sir; Sam Ella Clayton.

"Q. Are you married or single? A. Single.

"Q. Did you know Ned Bracey during his lifetime? A. Yes, sir.

"Q. How long did you know him? A. I don't know; I been knowing him a good while.

"Q. Do you know when he was inducted into the United States Army? A. Yes, sir.

"Q. When was that? A. I can't tell you what year it was; me and him was living together at that time.

"Q. You were living together at that time? A. Yes, sir.

"Q. How long did you live together? A. We had lived together two or three years.

"Q. How often was he at your house? A. He was there all the time.

"Q. He was there continually? A. Yes, sir.

"Q. What, if any, provision did he make for you when he was entrained to go to the war; did he make any provision for you to be provided for or not? A. He told me when he left he was going to send me some money.

"Q. Did you ever get the money? A. Yes, sir; he sent me some money.

"Q. Was that an allotment or not from the United States government? A. Yes sir; it was from the United States.

"Q. What statement, if any, did he make to you about what he intended doing when he returned from the war? A. What did he state after he came from the Army?

"Q. What did he say he was going to do when he came from the Army? A. He told me when he returned back we would marry.

"Q. That you would marry when he returned from the war? A. Yes, sir."

The defendant further pleads that the claimant's right to the funds had been adjudicated against her by an officer of the United States, authorized under the act of jurisdiction to determine the question investigated, with jurisdiction for that purpose; that the petitioner was not entitled to the proceeds of the policy, because she was not the wife of the said Ned Bracey; that this adjudication was made upon an inquiry, and upon statement made in an...