Evatt v. Miller

• Decision Date: 29 June 1914
• Docket Number: 83
• Citation: Evatt v. Miller, 114 Ark. 84, 169 S.W. 817 (Ark. 1914)
• Parties: EVATT v. MILLER
• Court: Arkansas Supreme Court

169 S.W. 817

114 Ark. 84

EVATT v. MILLER

No. 83

Supreme Court of Arkansas

June 29, 1914

Appeal from Scott Chancery Court; W. A. Falconer, Chancellor reversed in part, and affirmed in part.

STATEMENT BY THE COURT.

A man named Frank Mier, or Miller, died intestate in Scott County Arkansas, on April 11, 1911. He had been a resident of that county for a number of years prior to his death, and, during all the time of his residence in that county, he lived with a woman named Lidmilla Miller, who was reputed to be his wife and there was nothing in their relationship which aroused even a suspicion to the contrary. In addition to his reputed wife, he was survived by four children, one an adult daughter, who had married, and three minor children, and these children never suspected there was any question about their legitimacy until after the death of their father and the institution of the litigation involving his estate. Although Miller appears to have owned considerable land and personal property at the time of his death, his estate was largely involved, and after the qualification of appellant J. M. Evatt, as administrator of his estate, various debts were probated. Among other demands filed for probate was a judgment in favor of M. C. Miller, a brother of the intestate, and this brother, M. C. Miller, also had a mortgagee's deed, which he received upon the foreclosure of a mortgage executed to him by his brother, Frank. The administrator instituted a suit for the benefit of the heirs and creditors, in which it was alleged that this deed executed pursuant to the mortgage foreclosure, was fraudulent and had been executed for the purpose of cheating and defrauding various creditors in the collection of their just demands, and also for the purpose of placing the property beyond the reach of a probable judgment creditor, who at the time of the execution of the original mortgages, had a suit pending against the intestate for a considerable sum of money. That cause of action, however, appears to have been disposed of without the rendition of any judgment against the intestate.

A number of interventions were filed in this cause by various persons, who were made parties to that litigation. Among others, one Annie Miller filed an intervention in which she alleged that she and the intestate were married on the 16th of February, 1885, in Brazos County, Texas, and that about one year after their said marriage a son named Antone Frank Miller was born to them, and that shortly thereafter her husband deserted her and ran away with her sister, Lidmilla, with whom he had thereafter lived until a short time before his death, when he and the said Lidmilla separated and ceased to live together during the remainder of his life.

Antone Frank Miller was made a party, and alleged that he was the only heir at law of the intestate. Lidmilla and her adult daughter filed separate answers for themselves, and a guardian was appointed for the minor children of Lidmilla, who answered for them. In the answer of Lidmilla and her children the allegations contained in the petition of Anna were denied, and it was alleged that Lidmilla was the lawful wife, and her children the lawful heirs of the said intestate. They alleged also that the mortgages which were foreclosed and under which M. C. Miller claimed title, as well as the judgment in favor of the said M. C. Miller, were executed for the purpose of defrauding creditors, and of defeating them in the assertion of their rights in the estate of the intestate.

The principals in this case were Bohemians, and resided originally in Brazos County, Texas. The evidence is to the effect that Frank Miller had courted the two sisters, Anna and Lidmilla, who was the younger; but that there was a Bohemian custom to the effect that a younger daughter should not marry while her elder sister was single, and Lidmilla testified that she became angry at the attempt of the members of her family to compel Frank to marry her sister and left home and moved to a point about one hundred miles distant, where she lived for something more than a year, when Frank came there and told her that he had married her sister but that he had been divorced from her, and she says that thereafter they went to his camp, where he was engaged in working timber, and they were married; and that soon thereafter they removed to Talihini, I. T., where they lived for a short time, after which they removed to Scott County, Arkansas, and lived together as man and wife until the time of their separation, about a year before the death of her husband. After Anna had been deserted by her husband she lived for some years with a man named Cooper, and, although she denies she was ever married to Cooper, the evidence discloses the contrary to be the truth. After living for some years with this man Cooper, by whom she had a child, she lived for some years with a man named Richardson, by whom she had other children, and it appears she also married this man Richardson, although she denied that that was a fact. There was no proof that either Anna Miller or her husband, Frank Miller, ever secured a divorce.

The chancellor found that Frank and Anna Miller were lawfully married in Texas and that Frank died intestate in Scott County, Arkansas, without ever having been divorced from Anna, and that Antone Frank Miller was his only child and lawful heir, and that all the property descended to the said child, subject to the payment of the intestate's debts and the dower and homestead rights of the said Anna. The court decreed that the judgment in favor of M. C. Miller was a valid demand and that one of the mortgages had been assigned to the said M. C. Miller for a valuable consideration, and that the other mortgage was given to secure the payment of money which had been used in the purchase of the land described in the mortgage, and the court decreed that on that account the lands there described were not subject to the dower rights of the widow.

The administrator and Lidmilla and her children have duly appealed from that decree.

Decree affirmed.

A. G. Leming, for J. M. Evatt, administrator.

1. "A deed made with intent to delay creditors in the collection of their just demands may be set aside on application of the executor or administrator of the fraudulent grantor 'for the use and benefit of the heirs at law.'" 74 Ark. 276. See also 67 Ark. 232; 72 Ark 58; 64 Ark. 505; 68 Ark. 162; 74 Ark. 186; 76 Ark. 509; 73 Ark. 174; 64 Ark. 372.

2. "If a marriage in fact is established by evidence or admission, it is presumed to be regular and valid, and the burden of adducing evidence to the contrary rests on the party who attacks it." 26 Cyc. 877.

This presumption of regularity would apply equally to Anna in her marriage to Cooper and to Lidmilla in her marriage to Miller; and we think that the children of each by Miller are entitled to recognition as his heirs at law.

Roberts & Kincannon, for Lidmilla Miller et al.

1. One who attacks the validity of a marriage on the ground that one of the parties had previously been married to another person, does not fully discharge the burden of proof resting upon him by showing that there was a former valid marriage, but must go further and show affirmatively that the marriage had not been dissolved either by the death of the other party or by a decree of divorce. Tiffany's Persons & Domestic Relations, 41, 42, and cases cited, note 139.

The presumption of law being that a marriage is legal, the burden to show its illegality is upon the party who attacks it. 67 Ark. 278.

As to what constitutes marriage, see Bishop on Marriage & Divorce, § 437; 82 Ark. 81.

Where the validity of a marriage is questioned because of a former marriage of one of the parties, and it appears that at the time of the second marriage the former spouse was alive, it will be presumed that the former marriage was dissolved by divorce, and this presumption will be strengthened, if, after the separation, the other party to the first marriage also remarries. 8 Enc. of Ev. 463, notes and cases cited; 77 S.W. 1122; 25 Ky. Law Rep. 1356.

2. The court erred in holding that the children of Frank Miller by his marriage with Lidmilla Miller were not his legal heirs and were not entitled to inherit any of the property of his estate. Under our law they are entitled to inherit and share in his estate. Kirby's Dig., §§ 2536, 2640.

Carmichael, Brooks, Powers & Rector, for appellees, M. C. Miller, Annie Mier and A. F. Mier.

1. As to M. C. Miller, the findings of the chancellor upon the evidence will not be disturbed unless clearly contrary to the weight of the evidence. 93 Ark. 277; 103 Ark. 473; 97 Ark. 537; 92 Ark. 30; 98 Ark. 328; 100 Ark. 370; 90 Ark. 40; 86 Ark. 212; 98 Ark. 459; 102 Ark. 102.

2. The court found that Frank Miller and Annie Mier, or Miller, were lawfully married in the State of Texas, and that they were never divorced, and the record and the testimony bear out these findings. The record and the testimony also bear out the court's finding that Frank Miller and Lidmilla were never married.

The court's finding that Annie Mier, or Miller, was the legal widow of Frank Miller, entitled to dower and homestead rights in his estate, is sustained by the evidence. 28 Ark. 21; 97 Ark. 272; 88 Ark. 196; 12 L. R. A. 50.

3. Recognizing that a construction of section 2640 of Kirby's Digest, and the question of the right of the children of Lidmilla and Frank Miller to inherit his estate is one of first impression in this State, counsel cite as supporting their right to inherit 5 Call (Va.) 143; 90 Va 390; 18 S. E. (Va.) 841; Long on Dom. Rel. (2 ed.), § 244, and cases cited; 80 Va. 636, 56 Am. Rep. 601; 218 Ill. 220, 1 L. R. A. (N. S.) 773; Peck on Dom. Rel.,...