Brokeshoulder v. Brokeshoulder

• Decision Date: 29 November 1921
• Docket Number: 12580.
• Parties: BROKESHOULDER v. BROKESHOULDER ET AL.
• Court: Oklahoma Supreme Court

204 P. 284

84 Okla. 249, 34 A.L.R. 441, 1921 OK 412

BROKESHOULDER v. BROKESHOULDER ET AL.

No. 12580.

Supreme Court of Oklahoma

November 29, 1921

Rehearing Denied Jan. 24, 1922.

Syllabus by the Court.

Where a marriage has been consummated in accordance with the form of the law, the law indulges a strong presumption in favor of its validity. One who asserts the invalidity of such a marriage because one of the parties thereto has been formerly married, and the spouse of such former marriage is still living, has upon him the burden of proving that the first marriage has not been dissolved by divorce or by lawful separation. Haile v. Hale, 40 Okl. 101, 135 P. 1143.

The presumption arising in favor of the validity of a second marriage is not a conclusive presumption, but is what is a rebuttable presumption, and the one contending against the legality of the second marriage is not required to make plenary proof of a negative averment. It is enough that he introduce such evidence as, in the absence of all counter-testimony, will afford reasonable grounds for presuming that the allegation is true, and when it is done the onus probandi will be thrown on his adversary.

The evidence of the plaintiff in error in this case, who attacks the validity of the marriage of one of the defendants in error on the ground that the deceased at the time of his second marriage was incompetent to enter into the marriage relation because of his former marriage to the plaintiff in error, examined, and held sufficient to meet the above requirements.

Under section 8420, Rev. Laws 1910, which provides: "The issue of all marriages null in law, or dissolved by divorce, are legitimate"--a child born of a marriage contracted and consummated in accordance with the form of the law, which for any reason (such as one of the parties having a living spouse undivorced) is legitimate, inherits and transmits by descent as though born in lawful wedlock. Copeland v Copeland, 175 P. 764.

The presumption of removal of prior obstacles in support of a marriage does not prevail where it is attacked, and evidence introduced on either side, but the question then becomes one of fact, to be decided in the light of all the circumstances and the reasonable inferences from them. Turner v Williams, 202 Mass. 500, 89 N.E. 110, 24 L. R. A. (N S.) 1199, 132 Am. St. Rep. 511. Also editor's note, 16 L. R. A. (N. S.) 98, 99.

The rule as to estoppel arising from the marriage relation is that, where a marriage is shown to be illegal, and void ab initio, neither of the parties by any acts becomes as against the other estopped to deny its existence, but if one of the parties to such marriage has, by false representations as to the existence of a legal impediment, induced the other to enter into the marriage relation, such party so representing will, where the other has continued to act upon such representation, after the impediment has been removed, be estopped to deny their truth. 26 Cyc. 867, 868.

Held, that the facts in the record in this case are not such as to constitute an estoppel denying the right of a wife to a first marriage to attack the validity of the second marriage.

In determining which of two women is the legal surviving widow of a deceased husband, and where it is not denied that a legal marriage was consummated between the deceased husband and the first wife, and that the deceased husband had lived with the first wife four years, by whom he had one child, and then abandoned the wife and child and moved to another state, in which state, and in less than two years after so abandoning his wife and child, he marries another woman, the first wife continuing to reside in the county in which she and the deceased husband had lived, and she so continuing to reside up to the time and after the consummation of the second marriage by the deceased husband, and she not having remarried up to the time of the second marriage of the deceased husband, and the records in the counties in which he and she resided up to the time the deceased husband contracted the second marriage show no divorce by either, the presumption as to the legality of said second marriage of the deceased husband is rebutted thereby, and said second marriage must be held invalid.

If a prior marriage is shown to have existed at the time of the second marriage, the burden of proving the removal of the impediment by death or divorce, and of the creation of a legal marriage after the removal of the impediment, rests upon the party asserting the validity of the second marriage. This is so since a relation illicit in its inception is presumed to continue in the absence of countervailing evidence.

Appeal from District Court, Johnston County; J. H. Linebaugh, Judge.

Proceeding in the county court in the matter of the estate of Cammack Brokeshoulder, deceased, by Ruby Brokeshoulder, administratrix, to determine heirship, in which Josephine Brokeshoulder intervened. From a judgment or decree therein in favor of the administratrix, the intervener appealed to the district court, which affirmed the judgment of the county court, and the intervener appeals. Reversed and remanded, with directions to enter a decree not inconsistent with the opinion.

If a prior marriage is shown to have existed at the time of a second marriage, the burden of proving the removal of the impediment by death or divorce, and of the creation of a legal marriage thereafter, rests upon the party so asserting, since a relation illicit in its inception is presumed to continue in the absence of countervailing evidence.

C. B. Stuart, of Oklahoma City, C. A. Coakley, of Ardmore, and O. G. Rollins, of Okmulgee, for plaintiff in error.

Cornelius Hardy, of Tishomingo, Rainey & Flynn, of Oklahoma City, and Summers Hardy, of Tulsa, for defendants in error.

ELTING J.

This was originally a proceeding commenced in the county court of Johnston county, instituted in the matter of the estate of Cammack Brokeshoulder, deceased, by Ruby Brokeshoulder, administratrix, for the purpose of having heirship declared, and Josephine Brokeshoulder intervened in said proceeding, and contended that she was the lawful wife of Cammack Brokeshoulder, and that Ruby Brokeshoulder was not the lawful wife of Cammack Brokeshoulder, that in said hearing in the county court the issue was determined against Josephine Brokeshoulder and Ruby Brokeshoulder was declared to be the lawful wife of Cammack Brokeshoulder, deceased, and declaring that Josephine Brokeshoulder was not the lawful wife, and not entitled to inherit.

Josephine Brokeshoulder also claimed that she was entitled to be the administratrix, or entitled to nominate the administrator of the estate of Cammack Brokeshoulder, in lieu of Ruby Brokeshoulder, who had heretofore been appointed administratrix. In the event Josephine Brokeshoulder was declared the lawful wife, then she would have the right to select and nominate the administrator. All of these issues were found against Josephine Brokeshoulder and in favor of Ruby Brokeshoulder in the county court.

Josephine Brokeshoulder appealed from the order and finding of the county court to the district court of Johnston county, and in the trial of said matter the district court affirmed the judgment of the county court, and Josephine Brokeshoulder has appealed from the judgment of the district court affirming the judgment of the county court to the Supreme Court.

The essential facts in this case are:

That Cammack Brokeshoulder was a Mississippi Choctaw Indian, and that in 1906 he left Kemper county, Miss., and came to Oklahoma for the purpose of establishing his right to the selection of an allotment as a Mississippi Choctaw. He established his right, and was enrolled as a Mississippi Choctaw, and received a full allotment of land as such Mississippi Choctaw, which land and the proceeds thereof constitute his estate, and the question as to which one, Ruby or Josephine Brokeshoulder, has the right, as his surviving widow, to share therein is the question that is involved in this action.

In the meantime Cammack Brokeshoulder had returned to Kemper county, Miss., and on the 29th day of September, 1908, at Moscow, Kemper county, Miss., he was married to Josephine Brokeshoulder according to the laws of the state of Mississippi, under a marriage license duly issued by the proper authority in Kemper county. This marriage was performed by an Indian preacher, named S. J. Tubby. That on May 30, 1912, there was born of said marriage one child, Mable Ellis Brokeshoulder. That Cammack Brokeshoulder and Josephine Brokeshoulder, née Silistan, lived together in Kemper county, Miss., from the date of said marriage until November, 1912, as man and wife, and during such time, as heretofore stated, Mable Ellis Brokeshoulder was born of said marriage.

In November, 1912, the deceased, Cammack Brokeshoulder, left the state of Mississippi and came to Carter county, Okl., leaving his wife and child, as heretofore mentioned, in Kemper county, Miss. That Cammack Brokeshoulder lived with some one of his brothers in Carter county for a time, and then moved to Johnston county, state of Oklahoma, where he resided with another brother. While living in Johnston county, and on July 18, 1914, he was married to the defendant in error Ruby Brokeshoulder, at Ardmore, in Carter county, Okl., having procured a license under the laws of the state of Oklahoma. Cammack and his second wife resided at and near Pontotoc, in Johnston county, Okl., from date of said marriage until his death. To this second marriage there were born two children, Corrine and Cammack Brokeshoulder, Jr.

In March, 1920, Cammack Brokeshoulder died in Johnston county, Okl., intestate.

It also appears from the record that ...