Drawdy v. Hesters

• Decision Date: 22 February 1908
• Parties: DRAWDY v. HESTERS.
• Court: Georgia Supreme Court

60 S.E. 451

130 Ga. 161

DRAWDY v. HESTERS.

Supreme Court of Georgia

February 22, 1908

Syllabus by the Court.

Evidence of general repute in the neighborhood is admissible on the trial of a suit involving the issue of marriage vel non.

[Ed Note.-For cases in point, see Cent. Dig. vol. 34, Marriage, § 76.]

Declarations of a person since deceased, wholly in favor of the interest of the declarant, and which are not a part of the res gestae are mere hearsay, and not admissible in evidence.

[Ed Note.-For cases in point, see Cent. Dig. vol. 20, Evidence §§ 1068-1104.]

When the fact of marriage is in issue, whether a consensual or a ceremonial marriage, the subsequent conduct of the man and woman said to have been the parties to it is receivable in evidence as a circumstance bearing upon the issue. Where equivocal conduct, such as cohabitation, is relied upon as a circumstance material to the issue, declarations of one of the parties, since deceased, made pending the period of cohabitation, disaffirming the marriage, are admissible, under the principle of res gestae, for the purpose of showing the character of the cohabitation.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 34, Marriage, §§ 70-78.]

If cohabitation between a man and a woman is shown to have been illicit in its inception, in the absence of proof to the contrary, the illicit relation will be presumed to have continued throughout the period of cohabitation. Such presumption may be overcome by direct or circumstantial evidence affirmatively showing that, pending the illicit relation, the parties entered into an agreement to become husband and wife, and thereafter continued the cohabitation in the new relation. The burden of proof is upon the party asserting the agreement.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 34, Marriage, §§ 58-69.]

Error from Superior Court, Berrien County; W. N. Spence, Judge.

Action between J. A. Drawdy, administrator, and Allen Hesters, guardian. From the judgment, the administrator brings error. Reversed.

Alexander & Gary and Fulwood & Murray, for plaintiff in error.

Crawford & Walker, L. E. Lastinger, and Buie & Knight, for defendant in error.

ATKINSON J.

1. There was evidence that Lewis K. Drawdy and Jane Drawdy for a number of years had lived in the same house, and that two children, Lizzie and Daniel, were born to them; the former before the period of cohabitation commenced and the latter afterwards. In an effort to prove that the marriage relation existed between the two, the plaintiff introduced witnesses who testified, in effect, that it was the general repute in the neighborhood where the parties resided that Lewis K. Drawdy and Jane Drawdy were husband and wife. This testimony was objected to on the ground that it was hearsay, opinion evidence, and incompetent to prove marriage. The objection was overruled, and exception taken to this ruling in the motion for new trial. It is contended by counsel for the plaintiff in error that this evidence was inadmissible under Civ. Code 1895, § 5177, which provides, "Pedigree, including descent, relationship, birth, marriage and death may be proved by declarations of deceased persons related by blood or marriage, or by general repute in the family," etc., and under the decisions of Lamar v. Allen, 108 Ga. 158, 33 S.E. 958, holding that "relationship cannot be proved by general repute in the community," and Green v. Almand, 111 Ga. 736, 36 S.E. 957, ruling in effect that the sayings of a deceased relative are not competent evidence on the question of pedigree, unless the relationship itself is established by other evidence, and Malone v. Adams, 113 Ga. 791, 39 S.E. 507, 84 Am.St.Rep. 259, ruling that on an issue of devisavit vel non the caveatrix may prove her relationship to the decedent by his declarations to that effect. It is contended that these authorities confine evidence of repute, on an issue of marriage vel non, to repute in the family concerned, and do not permit proof of general repute in the community. This contention is not well founded. The rulings in the cases cited deal directly with matters of pedigree, other than marriage, such as "relationship," etc., and are simply in accord with the generally recognized rule that, in questions of that character, testimony or declarations of those persons only who are or were related by blood or marriage to the person whose pedigree is in question are admissible. 1 Bish. Mar., Div. & Sep. §§ 1160, 1161; 1 Gr. Ev. (16th Ed.) § 114, c. [103]; 2 Andrews' Am. L. (2d Ed.) p. 1665; 15 Am. & Eng. Enc. L. (2d. Ed.) 315; 22 Am. & Eng. Enc. L. (2d Ed.) 642, 650; 16 Cyc. 1211; 3 Wigmore on Evidence, § 2083.

The manner of proving marriage, on an issue of marriage vel non, forms an exception to the general rule. The fact of marriage is a matter of public interest, and general repute in the community is admissible upon such an issue. In Hubback's Ev. of Suc. 244 (48 Law Lib. 182), it is said: "Reputation of marriage, unlike that of other matters of pedigree, may proceed from persons who are not members of the family. The reason of the distinction is to be found in the public interest which is taken in the question of the existence of a marriage between two parties; the propriety of visiting or otherwise treating them in society as husband and wife, the liability of the man for the debts of the woman, the power of the latter to act suo jure, and their competency to enter into new matrimonial engagements, being matters which interest, not their relations alone, but every one who, by coming in contact with them, may have occasion to regulate his conduct accordingly as he understands them to be married or not." In the case of Clark v. Cassidy, 62 Ga. 410, Jackson, J., speaking for the court, said: "The burden, in our judgment, was upon Clark to show his marriage to the intestate, as his claim to the goods rested entirely upon that allegation being true. *** He claimed title from the intestate by virtue of being her husband and heir, and that she owed no debts; and his is the burden to show that title by producing proof of the marriage. This may be done by record evidence, or by witnesses who saw the ceremony performed, or heard the contract of marriage solemnized, or by such circumstances as the act of living together as man and wife, holding themselves out to the world as such, and repute in the vicinity and among neighbors and visitors that they are such, and, indeed, all such facts as usually accompany the marriage relation and indicate the factum of marriage. The evidence in each case is for the jury." See, also, in this connection, Jenkins v. Jenkins, 83 Ga. 283, 9 S.E. 541, 20 Am.St.Rep. 316; 1 Bish. Mar., Div. & Sep. §§ 932, 936, 1182; 1 Gr. Ev. (16th Ed.) § 114, c. [103]; 1 Andrews' Am. L. (2d Ed.) 622, 626, 627; 26 Cyc. 888; 8 Enc.Ev. 445, 446. For reasons obvious from what has been said, Clark v. Cassidy, 62 Ga. 410, is not in conflict with Lamar v. Allen, 108 Ga. 162, 33 S.E. 958. The point which we now have under consideration relates merely to the admissibility of evidence, and does not call for a ruling with regard to the sufficiency of evidence to prove marriage. Under the doctrine announced in the case of Clark v. Cassidy and Jenkins v. Jenkins, supra, and other authorities to which we have alluded, the testimony was clearly admissible.

2. It appeared that Lewis K. Drawdy had been slain. At the next term of court after the homicide, Jane Drawdy appeared as a witness before the grand jury, while an investigation was being made with regard to the crime involved in the homicide. After appearing before the grand jury, but before the trial of the case at bar, Jane Drawdy died. On the trial of the case at bar it was proposed to prove by a witness that when Jane Drawdy appeared before the grand jury she stated in effect that there was a marriage contract between herself and Lewis K. Drawdy, and that in pursuance thereof they had lived together. This testimony was admitted over objections that the declaration was self-serving and inadmissible to prove marriage; that they were self-serving because (a) they tended to create an estate for declarant and her children (Lewis K Drawdy being dead); (b) that the declaration might have been induced to prevent a criminal prosecution against herself for the offense of living in a state of fornication. The defendant excepted. We think the court committed error in admitting this testimony. The declaration was made after the death of Lewis K. Drawdy, and consequently after the termination of any relation which might have existed between them. Under these conditions, the declarations could not, under any view, be admitted as a part of the res gestae. If the declarations were admissible under any theory whatever, it would be under the rule announced in Civ. Code 1895, § 5181, which provides: "The declaration and entries of a person, since deceased against his interest, and not made with a view to pending litigation, are admissible in any case." The declarations were not admissible under this theory, for the reason that they were in the interest of the declarant, and not in any respect against her interest. The objections to the testimony indicated the two instances in which the effect of the declarations would be in the interest of the declarant; that is to say, it was to the interest of the declarant to establish the marriage relation, for the purpose, first, of participating in a distribution of the estate of Lewis K. Drawdy, and, second, for the purpose of shielding herself against any possible prosecution for having lived in a state of fornication. Under these conditions, the declarations must be regarded as merely hearsay, and not admissible for any purpose. The section of the...