Ex Parte Blizzard (two Cases).

• Decision Date: 26 October 1937
• Docket Number: No. 14553.,14553.
• Citation: 193 S.E. 633
• Court: South Carolina Supreme Court
• Parties: Ex parte BLIZZARD (two cases).

193 S.E. 633

Ex parte BLIZZARD (two cases).

No. 14553.

Supreme Court of South Carolina.

Oct. 26, 1937.

Appeal from Common Pleas Circuit Court of Richland County; G. B. Greene, Judge.

Proceeding in the matter of the petitions of Maggie Blizzard and of Lizzie Blizzard, for letters of administration in the estate of William Blizzard, deceased. From a decree denying both petitions, the former appeals.

Affirmed.

Order of Judge Greene follows:

This matter came on to be heard before me at the February term of the court of common pleas for Richland county upon an appeal from an order of his honor Judson H. Smith, judge of probate, for Richland county. The appellant requested a trial by jury of certain facts under section 233 of the 1932 Code and appealed upon the following grounds and exceptions:

1. That the probate judge erred in holding and finding that Lizzie Ford (or Lizzie Blizzard) was not the wife of Peter Rush prior to her alleged marriage to William Blizzard, deceased, and in holding that the testimony with regard thereto was too vague and conflicting to establish a common-law marriage between Lizzie Ford and Peter Rush.

2. That the probate judge erred in finding that Lizzie Ford and William Blizzard were ever married or that they were at any time lawfully man and wife.

3. That the probate judge erred in finding and holding that the marriage of Maggie Craft and William Blizzard on December 13, 1915, was null and void and erred in holding that said marriage was null and void, and that at the time of said marriage William Blizzard had a living wife, when as a matter of fact the probate judge should have held that the marriage was legal and of full force and effect under all of the facts and circumstances.

4. That the probate judge erred in holding, adjudging, and decreeing: "That the petition of Maggie Blizzard, asking for Letters of Administration on the estate of William Blizzard, deceased, be, and the same is hereby dismissed, " and that the said probate judge should have held that Maggie Blizzard was the lawful wife of William Blizzard, and therefore entitled to have Letters of Administration issued to her and to act as administratrix of his estate, and it was error to refuse said right as provided by statute.

5. At the time of the hearing the appellant stated an additional and fifth ground of appeal attacking the jurisdiction of the probate court to declare a marriage invalid.

After hearing argument of counsel for both the appellant and respondent, it appears that in cases of this kind the granting of a jury trial in an appeal from the probate court is within the discretion of the circuit judge. Hughes v. Kirkpatrick, 37 S.C. 161, 15 S.E. 912. Therefore in the exercise of my discretion and feeling that the ends of justice would be better served by my considering the issues without a jury, the request for a trial by jury was refused.

After a careful reading of the transcript of record the appellant's first exception must be overruled and the findings of fact and law by the probate judge affirmed. The party claiming a common-law marriage must prove the same by the preponderance of the testimony. Pooler v. Smith, 73 S.C. 102, 52 S.E. 967. The appellant in this case has failed to prove a common-law marriage by the preponderance of the testimony. It is also held that the facts and circumstances must show an intention on the part of both parties to enter into a marriage contract, and is usually evidenced by a public and unequivocal declaration by the parties. Tedder v. Tedder, 108 S.C. 271, 94 S.E. 19, 20, 2 A. L.R. 438. There is a lack of sufficient testimony in this case tending to show a common-law marriage. The courts of this state are reluctant to declare a common-law marriage unless the proof of such marriage is shown by strong and competent testimony.

The appellant's second exception must be overruled for the reasons stated by the probate judge. There is ample uncontradicted testimony tending to show a valid and binding ceremonial marriage between the respondent, Lizzie (Ford) Blizzard, and the deceased, William Blizzard. Since there was no common-law marriage prior to this marriage it must be considered as a valid and binding mar riage. The findings of the probate judge on this point are therefore affirmed.

The third exception of the appellant must be overruled for the reasons stated by the probate judge. There could not have been a valid marriage between the appellant, Maggie (Craft) Blizzard, and William Blizzard, as William Blizzard had a lawful living wife at the time of the claimed marriage. See Lemon v. Lemon, 158 S.C. 71, 155 S.E. 285, and Bannister v. Bannister, 150 S.C. 411, 148 S.E. 228.

The appellant's fourth exception must be overruled as, under the view I have taken of the testimony and the law in considering the first three exceptions, the petition of Maggie Blizzard asking...