Howard v. Kelly

• Decision Date: 17 April 1916
• Docket Number: 17698
• Citation: 71 So. 391,111 Miss. 285
• Court: Mississippi Supreme Court
• Parties: HOWARD v. KELLY, SHERIFF ET AL

71 So. 391

111 Miss. 285

HOWARD v. KELLY, SHERIFF ET AL

No. 17698

Supreme Court of Mississippi

April 17, 1916

March 1916

APPEAL from the chancery court of Warren county, HON. E. N. THOMAS Chancellor.

Bill for interpleader by R. M. Kelly, sheriff, against Allen Howard and others. From the decree the named defendants appeal.

The facts are fully stated in the opinion of the court.

Judgment affirmed.

W. C Wells and Theo McKnight, for appellant.

Mayes, Wells, May & Sanders and Brunini, Hirsch & Griffith, for appellee.

OPINION

STEVENS, J.

This is a second appearance of this case in the supreme court, the former appeal having been prosecuted from a decree sustaining a demurrer to the bill of interpleader. The case, as made by the pleadings, was fully stated in the opinion as reported in 98 Miss. 543, 54 So. 10, Ann. Cas. 1913B, 229, reference to which is here made for a statement of the material facts. After the cause was reversed and remanded the present controversy arose over the distribution of the fund. The present appeal challenges the correctness of the decree of the lower court finding that Henrietta, Robert, and Samuel Howard are the legitimate children of Henry Howard, deceased, for whose death through the negligence of the railroad company recovery was had under section 721 of the present Code. The proof shows that Henry Howard was first married to Sarah Riley at Port Gibson in February, 1891; that he lived with his wife only a few days, when he left her and went to Leland, Miss. A few days afterwards Sarah also left Port Gibson with the purpose of following her husband, but she has never been seen nor heard of since. In the fall of the year 1891 Henry had a regular job as fireman of the Yazoo & Mississippi Valley Railroad Company, was making Leland his home or headquarters, and there and then began what appears at first to be a meretricious relationship with one Fannie Banks. Shortly afterwards, however, Henry Howard and Fannie Banks proclaimed themselves to be married, and in the spring of 1892 moved to Rolling Fork, where they openly lived together as man and wife, and where they were regarded by the community as sustaining the relationship of husband and wife. From the early part of 1891 to the year 1903 there is abundant evidence that they lived together as man and wife; that Henry opened accounts with merchants for the benefit of his family; that three living children, whose interests are involved in this litigation, were born to them; that one of their children died and was buried at the expense of Henry; that the services of physicians were engaged by Henry from time to time for his reputed wife and children; and that in all respects a home was maintained with Henry as the head of the family and Fannie as the wife and mother until the latter's death in 1903. Some time after the death of Fannie Howard Henry began to live with Allena Howard, the plaintiff herein, and afterwards married Allena in due form. In November, 1908, Henry was killed in a railroad accident, and for his alleged wrongful death Allena Howard instituted the suit against the railroad company, which resulted in a judgment for seven thousand five hundred dollars, the proceeds of which was paid over to R. M. Kelly, sheriff of Warren county, who filed his bill of interpleader to have the chancery court to determine the conflicting claims to the fund. We are now called upon to determine whether the action of the chancellor in finding that there was a marriage between Henry Howard and Fannie Banks was warranted by the testimony. There is no proof of a ceremonial marriage between Henry and Fannie. Their children are compelled to rely upon a common-law marriage.

Counsel for appellant concede that, if the proof showed a ceremonial marriage, one "solemnized according to the forms of law" between Henry Howard and Fannie Banks that every presumption would be indulged in favor of its validity, and that this presumption would overcome the presumption of law that Sarah Riley the first wife, was still alive, although she had not been absent seven years at the time Henry first began cohabiting with Fannie Banks. If a ceremonial marriage had been shown between Henry and Fannie, then the question would be put at rest by many previous holdings of this court. Spears v. Burton, 31 Miss. 547; Hull v. Rawls, 27 Miss. 471; Wilkie v. Collins, 48 Miss. 496; Railway Co. v. Beardsley, 79 Miss. 417, 30 So. 660, 89 Am. St. Rep. 660; Sullivan v. Grand Lodge, 97 Miss. 218, 52 So. 360; Bennett v. State, 100 Miss. 684, 56 So. 777. The proposition is settled beyond doubt that, where a second marriage, duly solemnized, is shown, the presumption arises that the first spouse has been either divorced or is dead, and that the burden of proof is upon him who claims rights inconsistent with such presumption. The question that now confronts the court is whether this presumption arises in favor of a common-law marriage or must it be confined to what might be termed statutory or ceremonial marriages contracted and solemnized according to the forms expressly prescribed by law. In connection with this question is the further inquiry, viz.: In the event the union claimed to be a common-law marriage was meretricious in its beginning, is the burden upon him who relies upon the common-law marriage to show affirmatively that the impediment to a lawful marriage has been removed, or in other words, can the presumption of innocence under such circumstances still arise in such way as to overcome and overthrow the presumption that the first spouse yet lives? This exact point has not been decided by our court.

In every expression of our own court in the cases mentioned the court refers to the second marriage as one solemnized according to the forms of law or solemnized in due form. It cannot be doubted, however, prior to the adoption of the Code of 1892, that a common-law marriage was recognized as lawful and binding as one contracted in pursuance of a license and the usual ceremony. We are persuaded that every presumption should then be indulged in favor of the legality of a union thus shown in the same way and to the same extent as the law indulges in favor of a ceremonial marriage. The contract of marriage is one and the essential thing; the ceremony giving utterance to and public evidence of the contract is an incident. In making this declaration we do not wish to be understood as discounting the wisdom or propriety of the usual ceremonies by which marriages are solemnized. We are not to be understood either as interpreting the meaning of our present statute requiring licenses to be issued. We simply assent to the holding repeatedly announced, not only by our own court, but by the courts of other jurisdictions, that the law favors marriage and indulges the presumption that a marriage once shown is legal until the contrary is established by competent testimony. The law encourages marriage, and the courts have repeatedly...