Cash v. Cash

• Decision Date: 16 December 1899
• Citation: 54 S.W. 744
• Parties: CASH v. CASH.
• Court: Arkansas Supreme Court

54 S.W. 744

CASH v. CASH.

Supreme Court of Arkansas.

December 16, 1899.

Appeal from circuit court, Pike county; Will P. Feazell, Judge.

Action by Caldonia Cash against George A. Cash, as administrator of the estate of John H. Cash. From a judgment for plaintiff, defendant appeals. Modified.

John H. Cash died intestate in Pike county in 1897, and appellant administered upon his estate. At the October term, 1897, of the probate court, Caldonia Cash, claiming to be the widow of deceased, filed her two petitions. In the first, in behalf of herself and her four minor children, she alleged that the personal estate of decedent did not exceed in value $800, and prayed that $300 in value of same be vested in her and said minors. In the second, in behalf of herself alone, she alleged the solvency of said estate, that she was the widow of decedent, and prayed an additional allowance of $148.50 in specific articles named. These petitions were granted, and the administrator appealed to the circuit court. In the circuit court the administrator answered both petitions, and alleged that said Caldonia was never lawfully married to said John H. Cash. The two petitions in the circuit court were consolidated and tried as one cause at the February term, 1898, and the court found that the estate of decedent was solvent, and that the said Caldonia had been legally married to John H. Cash, and was his widow. The court adjudged that the widow and minors were entitled to $300 worth of personal property (not described either in the petition or in the judgment), and that the widow recover an additional $148.50 worth of personal property, specifically described in the judgment; after which the judgment proceeded as follows: "It is by the court considered, ordered, and adjudged that the plaintiff have and recover of and from the defendant, Geo. A. Cash, as administrator of the estate of Jno. H. Cash, the sum of $300, with 6 per cent. interest from the 12th day of October, 1897, and that the plaintiff, Caldonia Cash, do have and recover of and from the said Geo. A. Cash, as administrator, the sum of $150, with 6 per cent. interest from the 12th day of October, 1897: provided, that if the defendant shall, within ten days from this date, deliver to the plaintiff the property above ordered to be delivered, this alternative judgment shall be satisfied in full, and, if only a part of said property be so delivered within said ten days, this judgment shall be satisfied to the extent of the value of the property so delivered." Appellant filed his motion for a new trial, which was overruled, exceptions saved, a bill of exceptions duly signed and filed, and appellant thereupon appealed to this court. The motion for a new trial raised all questions that will be discussed in appellant's brief. At the trial it was admitted that the plaintiff, then Caldonia Karr, on December 11, 1879, was lawfully married to one Miles Hankins, and that on January 8, 1890, she was again married in due form of law to John H. Cash. James L. Townsend, for defendant, testified: "After the death of John H. Cash I visited Caldonia Cash, and was accompanied by George A. Cash, D. W. Cash, and W. P. Hammons. I asked her if she had been divorced from Miles Hankins. She said, `No,' but that he had left her about five years prior to her marriage to John H. Cash, and that she had not heard from him since he left her." D. W. Cash, George A. Cash, and W. P. Hammons corroborated the testimony of Townsend. The plaintiff, Caldonia Cash, to sustain her cause, offered to introduce herself as a witness. The defendant objected to her being sworn on the ground that she had been convicted of petit larceny, and examined her as to the truth of said charge; and she admitted that in Pike county, Ark., a few days before, she had been convicted and fined on a criminal charge against her for petit larceny. The court ruled that she was a competent witness, and that her infamy arising from a conviction for larceny could only be established by a certified copy of the record of her conviction. She testified: "Miles Hankins, my former husband, left me, in the Indian Nation, about October 15, 1884. He said some day he would come back after me. I had not seen or heard from him for over five years at the time of my marriage to John H. Cash." This was all the testimony. The court declared the law to be that the burden of proof was on the defendant, George A. Cash, to prove that at the time of the marriage of Caldonia to John H. Cash the said Hankins was alive. Otherwise, the finding of the court would be (and in this case, for want of proof, was) in favor of the plaintiff, Caldonia Cash, — to which ruling defendant excepted.

J. H. Crawford, for appellant. Murry & Callaway, for appellee.

HUGHES, J. (after stating the facts).

Caldonia Cash admitted on the trial of the cause that she had been, but a short time before the trial, convicted of petit larceny, and this admission, made against her interest, dispensed with further proof of the fact. Having...