Hale v. Hale
| Decision Date | 09 September 1913 |
| Parties | HALE v. HALE. |
| Court | Oklahoma Supreme Court |
Rehearing Denied Nov. 4, 1913.
Syllabus by the Court.
Where a marriage has been consummated in accordance with the form of the law, the law indulges a strong presumption in favor of its validity.
One who asserts the invalidity of such a marriage, because one of the parties thereto has been formerly married, and the spouse of such former marriage is still living, has upon him the burden of proving that the first marriage has not been dissolved by divorce or lawful separation.
A contract between a husband and wife for separation and for separate maintenance of the parties thereto, which in consideration of such separation and the conveyance of certain property of each to the other releases the other from all claims and demands for support in and to his or her property, is abrogated by the reconciliation and cohabitation of the parties thereto.
Where after the execution of such a contract of separation, the parties thereto become reconciled and live together and cohabit as man and wife, upon the decease of the husband, the surviving wife, where the personal property directed by the statute to be set aside to the widow is insufficient for her support, is entitled to such an allowance out of the estate of the deceased husband as in the discretion of the court may be reasonable for her maintenance during the progress of the administration of the estate.
Error from District Court, Kingfisher County; James B. Cullison Judge.
Action by Julia A. Hale against Nathan T. Hale, executor of John R Hale. Judgment for plaintiff, and defendant brings error. Modified and affirmed.
Hinch & Bradley, of Kingfisher, for plaintiff in error.
F. L Boynton, of Kingfisher, and Robberts, Curran & Otjen, of Enid, for defendant in error.
HAYES, C.J. (after stating the facts as above).
The principal controverted issues at the hearing of the district court were: First. Was defendant in error ever legally married to decedent? Second. Was the contract in settlement of property rights alleged in plaintiff in error's answer, the execution of which is admitted, annulled by the acts and conduct of the parties after the execution thereof? Third. Is defendant in error in need of an allowance, and, if so, the amount thereof?
The evidence establishes the issues of a marriage license by the proper authorities of Sedgwick county, Kan., on the 22d day of December, 1906, authorizing the marriage of decedent and defendant in error; and that decedent and defendant in error were on said date married under formal ceremony. Plaintiff in error attempted to establish the invalidity of this marriage by showing that at that time defendant in error was the wife of one John Shugart. In support of this contention, the evidence establishes that for several years defendant in error and one John Shugart lived together and cohabited in the state of Illinois and held themselves out to the public as man and wife; that defendant in error had by said John Shugart four children; that during the time she lived with him she bore his name; and that all of her children took the surname of Shugart. Defendant in error left Shugart about the year 1866, after the birth of her children, and was gone for about two years, when she returned in the neighborhood in which she had formerly resided with Shugart. During that time Shugart had remarried. Defendant in error afterwards married a man by the name of Board, who subsequently died before she married Hale. Upon being introduced as a witness by plaintiff in error, she testified that she had never been married to Shugart. Counsel for plaintiff in error thereupon asked her several questions, the purpose of which was to establish a common-law marriage between her and Shugart. An objection to said testimony was sustained; and the action of the court in rejecting this testimony constitutes one of the assignments of error urged for reversal. But, since we may assume that the evidence establishes a common-law marriage between defendant in error and Shugart, and that fact alone does not require a reversal of the order appealed from, although the trial court committed error in rejecting the testimony, such error was without prejudice. And we shall, for the purpose of deciding all the questions presented by this proceeding, assume that there was a common-law marriage between the defendant in error and Shugart. The evidence also establishes that, at the time defendant in error married Hale, Shugart, her former husband, was still living; but the facts that defendant in error had been formerly married and that the husband of her first marriage was still living are not sufficient to render her marriage to Hale invalid.
Where a marriage has been consummated in accordance with the forms of the law, the law indulges a strong presumption in favor of its validity. Re Rash, 21 Mont. 170, 53 P. 312, 69 Am. St. Rep. 649; Tuttle v. Raish, 116 Iowa, 331, 90 N.W. 66; Wenning et al. v. Teeple et al., 144 Ind. 189, 41 N.E. 600.
One who asserts the invalidity of such a marriage, because one of the parties thereto has been formerly married, and the spouse of the former marriage is still living, has upon him the burden of proving that the first marriage has not been dissolved by divorce or lawful separation. Clarkson et al. v. Washington et al., 131 P. 935; Coachman v. Sims et al., 129 P. 845; Scott v. Scott, 77 S.W. 1122, 25 Ky. Law Rep. 1356; Pittinger v. Pittinger, 28 Colo. 308, 64 P. 195, 89 Am. St. Rep. 193. Numerous other authorities supporting this doctrine may be found referred to in the note to Smith v. Fuller, 16 L. R. A. (N. S.) 98.
Defendant in error testified that she had never obtained a divorce from John Shugart, her first husband; that she did not think it was necessary. She does not testify as to whether he obtained a divorce from her and by such divorce their marriage relations were dissolved. Plaintiff in error, in an effort to discharge the burden of proof upon him, introduced the depositions of the clerks of the circuit courts of Fulton, Traswell, and Peoria counties of Illinois and of Kaufman county, Tex., which courts were shown to have jurisdiction of all divorce proceedings in their respective counties from the time of the separation of defendant in error from her first husband, John Shugart, until the time of her marriage to Hale. These depositions were to the effect that no divorce had been granted to John Shugart by the courts of which said witnesses were clerks. The evidence establishes that during this time Shugart lived in the counties of Illinois named, and that he lived near a certain town in Texas, located in Kaufman county. The evidence does not establish that he ever lived in Kaufman county; and it appears from the location of the town named in that county that he could have lived near it and still resided in another county. Nor does the evidence establish that the counties named in the depositions are the only counties in which Shugart resided during said time, or that said courts were the only courts that would have had jurisdiction to grant him a divorce. The evidence establishes that, about two years after defendant in error separated from Shugart, she returned to the community where they had theretofore lived as man and wife. Shugart was then residing in the same community with his second wife, whom he had married in that community. It does not appear that any prosecution was ever made against Shugart for bigamy, and thereafter defendant in error married a second husband with whom she lived a number of years before his death. Her first husband, Shugart, moved to Texas, taking with him his second wife and his children by her, where he lived with them until his death. To hold that defendant in error's marriage to Hale is invalid would be to make Shugart's relation to his alleged second wife bigamous, his two children born by her bastards, and defendant in error's second marriage illegal. So far as it appears from the evidence in this record, the parties to all these marriage contracts have lived together during the lifetime of the respective parties under the impression that they were lawfully married. Defendant in error and Mr. Hale lived together in such relation about four years before his death. The stability of descent and distribution, the rendering illegitimate innocent children upon such facts as are presented by this record, establishes the wisdom of the presumption that sustains the validity of a marriage contracted under the forms of the law; and we are of the opinion that the trial court did not err in his finding to the effect that this presumption had not been overcome.
Under the statutes of this state, upon the death of the husband the homestead and certain personal property are required to be set aside to be occupied and used by the widow and children, or either. Sections 5265 and 5266, Comp. Laws 1909. If the personal property ordered to be set aside is insufficient for the support of the widow and children, or either, and if there be other estate of the decedent, the court in its discretion may make a reasonable allowance out of the estate for the maintenance of the family, according to their circumstances, during the progress of the administration. Section 5269, Id. But plaintiff in error here contends that, although the defendant in error be the widow of the deceased, she is estopped from claiming any allowance as his widow under said statute because of the contract of separation set up in his answer. Prior to the 22d day of October, 1910, the date of the contract of separation, defendant in error and her husband had unpleasant difficulties and domestic troubles resulting in a proceeding for divorce by...
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