Brown v. Parks

• Decision Date: 14 July 1931
• Docket Number: 8186,8187.
• Citation: 160 S.E. 238,173 Ga. 228
• Parties: BROWN v. PARKS et al. PARKS v. PARKS et al.
• Court: Georgia Supreme Court

160 S.E. 238

173 Ga. 228

BROWN v. PARKS et al.

PARKS v. PARKS et al.

Nos. 8186, 8187.

Supreme Court of Georgia

July 14, 1931

Motion to Rehear Denied September 18, 1931.

Syllabus by the Court.

Where man contracts second marriage during first wife's lifetime, it is presumed that first marriage was legally dissolved; one asserting invalidity of second marriage entered into during lifetime of first wife must show there has been no divorce.

Where a man contracted a second marriage while his first wife was still alive, it will be presumed, in favor of the validity of the second marriage, that the first marriage was legally dissolved by a divorce before the second marriage was entered into; and one who asserts the invalidity of the second marriage must show that there has not been any divorce.

Burden of proving negative is upon person claiming right to which proof of negative is essential; one claiming property of intestate on ground of illegality of decedent's second marriage must by proper proof remove every presumption of legality.

Where proof of a negative is essential to the existence of a right the burden of proving such negative is properly placed upon the party claiming the right. Where, therefore, the right of a claimant to property of an intestate rests upon the supposed illegality of a marriage, the claimant must, before he can make good that right, by proper proof remove every presumption of the legality of the second marriage.

Where two women claimed to be wives of decedent, but one claiming invalidity of decedent's second marriage had admitted that her husband had been dead for several years, jury could find second marriage valid.

Aside from the statement of the two foregoing well-settled principles of law, the jury were authorized to find in favor of the validity of the marriage entered into by the defendant in error, by the admission of the alleged wife who sought to show the invalidity of the second marriage, to the effect that the Parks to whom she was married had been dead for several years.

The court did not err in overruling the motion for a new trial.

Error from Superior Court, Fulton County; Edgar E. Pomeroy, Judge.

Petition by Nannie Parks against Harvey L. Brown, as administrator of W. L. Parks, deceased, and others, in which Eva Parks intervened. Judgment was for plaintiff, and separate motions for new trial by defendant named and by intervener were denied, and said defendant and intervener bring error.

Judgments affirmed.

ATKINSON J., dissenting in part.

Brown & Brown, of Atlanta, for plaintiff in error.

Little Powell, Reid & Goldstein, J. K. Jordan, John D. Stewart, and J. Wightman Bowden, all of Atlanta, for defendants in error.

No. 8187:

J. D. Stewart and J. Wightman Bowden, both of Atlanta, for plaintiff in error.

Little, Powell, Reid & Goldstein, Brown & Brown, and J. K. Jordan, all of Atlanta, for defendants in error.

RUSSELL C.J. (after stating the foregoing facts).

This is a case of a competition in marriages. Two women, one a brown woman who is called Nannie Parks, and another woman named Eva Templeman or Eva Parks, the exact shade of whose color is not disclosed by the record, each and both claim to be the wife of one W. L. Parks, also known as Willie Parks. Doubtless the question of the marital connection of either one of them would possess no interest were it not that it appears from the record that the ownership of a considerable sum of money and a house and lot was involved in the question as to who is the lawful wife of the deceased intestate. It seems from undisputed testimony that, if Eva in fact ever married W. L. Parks, whose estate is involved in this litigation, her marriage vows were very lightly regarded, for she entered into other matrimonial relations for several years practically ad libitum, and has collected policies of insurance on the death of at least one husband acquired by her subsequently to the alleged marriage with Willie Parks. However, as we held when this case was here before ( Brown v. Parks, 169 Ga. 712, 151 S.E. 340, 71 A.L.R. 271), no amount of misbehavior on the part of Eva Parks would of itself dissolve a valid pre-existing marriage. This principle was respected and followed by the able trial judge, who submitted to the jury for answer and determination the question, Who is the legal wife of the deceased? And this question was answered by the jury after a review of the entire evidence by a finding that Nannie Parks was the legal wife of the deceased. This question goes to the vitals of the entire proceeding--is the crux of the case. If the evidence does not authorize the finding returned by the jury, the case should be remanded for another trial. If the cause is to go back for another trial, this court should rule upon several other assignments of error, for the instruction and guidance of the lower court in another hearing of the case. If the evidence authorized the jury to find that Nannie Parks was the lawful wife of W. L. Parks, the state of the evidence in the record is such that other questions are altogether immaterial. Questions as to amendments, as to resulting trust, and of practice, as raised in regard to the impeaching testimony which was permitted by the court, become entirely immaterial; for, if Nannie was the lawful wife, she became the sole heir of the deceased and entitled to the estate, which was shown to be without debts. There would be no impediment to the discharge of the administrator and delivery of all assets in his hands to the sole heir, the wife. In making this statement we bear in mind that, if error on the part of the court in any stage of the trial improperly or illegally affected the jury and caused or contributed to a finding in favor of Nannie rather than Eva, then the verdict should properly be set aside. On the other hand, though there may have been some errors in the conduct of the trial, if they did not bear upon or contribute to the finding of the jury on this paramount question, they could not be treated as other than entirely immaterial and therefore harmless errors.

In the petition the plaintiff Nannie Parks sets up that she was the lawful wife of the deceased. She establishes that fact by proof of a ceremonial marriage under authority of a marriage license, solemnized by a minister of the gospel in the presence of at least one other witness besides the minister and the contracting parties; and this testimony is undisputed. The ceremony was performed under authority of a license on the 27th day of January, 1904; and their association as man and wife continued without interruption for about 23 years. This makes a prima facie case, which imposes upon any party attacking the validity of the marriage the burden of presenting proof to establish a better pre-existing wedlock. Norman v. Goode, 113 Ga. 121, 38 S.E. 317.

"Marriage is favored by the law. Concubinage is odious. When a man and a woman are living together as husband and wife, the law will hold them to be such, even against strong probabilities that they are not. 1 Bish. on Mar., Div. & Sep. § 77. When a marriage has been regularly solemnized, and the parties live together as man and wife, there is a presumption that the parties had capacity to contract the marriage, and of the existence of all other facts necessary to render the marriage valid; and this presumption prevails until the contrary appears. The burden is upon him who attacks the validity of the marriage to show that it is invalid by clear, distinct positive and satisfactory proof. Megginson's Estate, 21 Or. 387, 28 P. 388, 14 L.R.A. 540. The presumption as to the validity of the marriage can only be negatived by disproving every reasonable possibility. The status of the woman is involved, as well as the legitimacy of the children, and every reasonable presumption must be indulged which will relieve the woman of the charge of being a concubine and her children from being declared bastards. Piers v. Piers, 2 House of Lords Cases, 380; Cash v. Cash, 67 Ark. 278, 54 S.W. 744; Wilkie v. Collins, 48 Miss 496. If at the time of the marriage one of the parties had a living spouse, of course, the marriage is void. But it is incumbent upon him who attacks the marriage upon this ground to overcome the presumption of its validity, resulting from the solemnization of the marriage ceremony and cohabitation by the parties under the belief that they are lawfully married, and to establish that the former spouse was living at the time that the second marriage was entered into. *** While there may be a presumption of life when the period between the time the spouse was last heard from and the second marriage is less than seven years, under such circumstances this presumption of life conflicts with the presumption of innocence which the law raises in favor of the party contracting the second marriage. The presumption that the party contracting the second marriage is innocent of the crime of bigamy is, in such circumstances, stronger than the presumption that the former spouse is in life. Where the presumption of innocence and of the validity of the marriage conflicts with the presumption of life, and neither presumption is aided by proof of facts or circumstances corroborating it, the presumption of the validity of the marriage has generally been held to be the stronger, and to prevail over the presumption of the continuance of the particular life; and this has been held, although the time elapsing between the last knowledge of the former spouse and the second marriage is mach less than seven years. The proposition thus stated was laid down by Shope, J., in Johnson v. Johnson, 114 Ill. 611, 3 N.E. 232, 55 Am.Rep. 883, in an opinion where numerous cases are considered and reviewed. In...