Donnelly v. Donnelly's Heirs

• Decision Date: 24 December 1847
• Citation: 47 Ky. 113
• Parties: Donnelly v. Donnelly's Heirs.
• Court: Kentucky Court of Appeals

47 Ky. 113

Donnelly v. Donnelly's Heirs.

Court of Appeals of Kentucky.

December 24, 1847

Marriage. Dower. Limitation. Fraud.

ERROR TO THE TODD CIRCUIT.

G W. Ewing for plaintiff

J & W. L. Harlan for defendants.

OPINION

BRECK JUDGE.

Case stated.

IN 1838, Thomas Donnelly died intestate, in the county of Todd possessed of considerable estate in lands, slaves and personalty. Jane Donnelly and five children, claimed to be his widow and only heirs. Administration was granted upon his estate, and Commissioners appointed for that purpose, allotted to the widow dower and divided the residue of the real estate among the children. This allotment and division were made in 1839.

In 1841, this bill was filed, the complainants alleging that they were the children and grandchildren of Thomas Donnelly by a previous marriage with Margaret Kimmel, in the State of Maryland, about the year 1793. That his first wife was living at the time of the second pretended marriage, if such marriage was ever contracted, and that it was, therefore, null and void; and that the pretended widow and heirs, who had obtained possession of the estate, were entitled to no portion thereof.

The administrator, widow and heirs, were made defendants, and in their answers deny all the material allegations in the bill, and insist and rely that the marriage between the said Jane and said Donnelly was legal and valid. The said Jane also made her answer a cross bill against the complainants and her co-defendants, in which she insists upon her claim as the widow of the deceased, but contends if it should turn out that she was not entitled to a share of the estate in that character, that she was entitled to it, or a portion of it, as surviving partner. She alleges that she had, at the time of her marriage, a valuable estate in land and personalty, which was taken by the deceased and sold, and which formed the basis of the large estate which had been accumulated by their joint industry and economy. She insists if she cannot claim as widow or partner, that she is, nevertheless, entitled to the estate or its value, which she surrendered to her supposed lawful husband, and if in this view her claim could not be sustained, then she claims compensation for her services in acquiring the estate. The complainants deny the allegations of this cross bill, and a part rely in bar of this claim set up, upon the statute of limitations.

The answer of defendants made a cross bill.

The Circuit Judge was of opinion that the first marriage, was established by the testimony and was valid, and that the second was void, but that the children of the second marriage were, nevertheless, entitled to share in the estate as heirs. He accordingly directed the estate to be divided into nine parts, there being four children by the first marriage and five by the second, and decreed a share to each of those who were living and to the issue of one who had died; and as one of the children by the first wife had died since the institution of this suit, intestate and without issue, his ninth part was decreed to be equally divided between the other two surviving children of that marriage, and the issue of one who had died previously. The Court was also of opinion that the said Jane, claiming to be the widow, was not entitled to dower; and that " the statute of limitations was a bar to the relief which would otherwise be decreed her." He, however, decreed that she should not be held responsible for the rent of a mill estate which had been allotted to her as dower, and which she had held up to the rendition of the decree, nor for a claim of about $100, which the administrator held upon her for negro hire.

Decree of the Circuit Court.

The said Jane alone complains of the decree and has appealed to this Court.

Whether the first marriage is established by the evidence and whether the complainants are the issue of that marriage, presents the first inquiry.

It very satisfactorily appears that about the year 1793, Thomas Donnelly was a clerk in a hardware store of Anthony Kimmel, in the city of Baltimore, and that about that period he eloped with Margaret, the daughter of Kimmel, and after a few days that they returned and reported that they were married. That they cohabited and recognized each other as man and wife, and were so recognized by their respective families, friends and acquaintances. That they resided in Baltimore and the neighborhood for about ten years, during which time they had some children, three of whom and the issue of the fourth, are shown to be the complainants in this suit. That about 1803-4, Donnelly becoming somewhat dissipated and embarrassed, and probably from some family difficulties, left his wife and children and came to Logan county, Kentucky, where he remained till 1815, when he returned to Baltimore with a drove of horses--had an interview with his wife, saw and recognized his children, and after remaining a few weeks returned again to Kentucky. It also appears that while in Kentucky in 1810, he stated that he had married the daughter of Kimmel, who was then living in Baltimore, and that he was married in Alexandria.

In same year he writes to a friend in Baltimore, that he had written to his wife. In this letter he expressly recognizes her as his wife. Again, in 1822, he writes to one of the complainants as his daughter, styles himself her father, and at same time forwards a release as to all property he might claim in virtue of his marriage with Margaret Donnelly or Kimmel. But without pursuing the inquiry farther as to the testimony upon this point, it is sufficient to say, that the first marriage is conclusively established so far as it can be done by proof of cohabitation and recognition, and the doctrine is well settled that such testimony is competent to prove a marriage in a civil suit or in a controversy of this kind.

Cohabitation and the recognition of the parties as man and wife, is competent evidence to establish marriage in a civil suit.

The testimony is equally conclusive that the complainants were the issue of that marriage.

Shortly after Donnelly visited Maryland and returned to Kentucky, in 1815, it appears that he married Jane Phelps, at that time a widow, and since claiming to be his widow. She relies upon a marrige in fact, and exhibits as evidence thereof, a duly authenticated copy from the records of the Court of Robinson County, in the State of Tennessee, of a license, and the return thereon by a Justice of the Peace, to whom it was directed, that in virtue thereof, the marriage had been solemnized.

In 1821, Margaret Donnelly, the Maryland wife, died. The marriage of Mrs. Phelps being in the lifetime of the first wife, was...