Hill v. Lindsey

• Decision Date: 08 October 1931
• Docket Number: 6 Div. 862.
• Citation: 223 Ala. 550,137 So. 395
• Parties: HILL v. LINDSEY.
• Court: Alabama Supreme Court

137 So. 395

223 Ala. 550

HILL v. LINDSEY.

6 Div. 862.

Supreme Court of Alabama

October 8, 1931

Rehearing Denied Nov. 19, 1931.

Appeal from Circuit Court, Blount County; O. A. Steele, Judge.

Petition in equity by Belle Lindsey against David M. Hill, as administrator of the estate of James Lindsey, deceased. From a decree for petitioner, the administrator appeals.

Affirmed.

P. A Nash, of Oneonta, for appellant.

J. T Johnson, of Oneonta, for appellee.

GARDNER J.

Appellee claiming to be the widow of Jim Lindsey, deceased, whose estate was in the course of administration in the probate court, secured an order of removal thereof into a court of equity. The pleading in the equity court filed by the administrator challenged the claim that appellee was such widow, presented an issue of fact thereon, and prayed for a jury to hear the same, which was granted; the trial resulting in a verdict against appellee's claim. The chancellor, however, who also presided and instructed the jury upon the above-noted issue of fact, contrary to the jury's verdict, entertained the view that appellee was in fact the widow, and entered decrees so adjudging and declined to retransfer the administration to the probate court, ordered an appraisal of the estate and that appellee be awarded exemptions allowed by law.

These rulings were such as to meet the test of finality of a decree to support an appeal under McClurkin v. McClurkin, 206 Ala. 513, 90 So. 917, and Smith v. Goldsmith (Ala. Sup.) 134 So. 651, and the case is readily distinguishable from that of Carter v. Hutchens, 221 Ala. 370, 129 So. 8, cited by appellee. The motion to dismiss the appeal is denied.

Appellant insists the verdict of the jury was binding upon the chancellor, but this is only true in equity in those cases where a jury may be demanded as a matter of right. Karter v. East, 220 Ala. 511, 125 So. 655; Marshall v. Croom, 60 Ala. 121; section 6631, Code 1923.

In the instant case there is no statute granting a jury trial as matter of right, and such a trial rested in the sound discretion of the chancellor. The verdict was therefore not binding upon the court, but advisory merely. Marshall v. Croom, supra; 24 Cyc. 111.

Coming to a consideration of the evidence, we think it amply supports the chancellor's conclusion. It is without dispute there was a ceremonial marriage, a minister officiating under license duly issued, followed by cohabitation as man and wife for nearly a year. This marriage was presumptively valid, and the burden of proof to the contrary rested upon the administrator who questions it. Walker v. Walker, 218 Ala. 16, 117 So. 472; Fuquay v. State, 217 Ala. 4, 114 So. 898.

The husband had made a deed to his land to the wife, and we gather vaguely from the record that litigation with his children by a former marriage followed on that account, and that in the course of the litigation it developed the validity of their marriage was assailed upon the ground that Belle Lindsey, the wife, had not, at the time of the marriage, obtained leave of the court to again contract marriage; the divorce decree in favor of her former husband, one Williams, being silent in this regard. Smith v. Goldsmith, supra, and authorities therein cited. It appears, however, undisputedly, that upon such discovery, Jim Lindsey, the husband, employed counsel and secured a decree granting to Belle Lindsey the right to remarry. This decree bears date March 9, 1929, and on May 8, 1929, the wife reconveyed to the husband the land he had previously deeded to her.

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