Jordan v. Copeland

• Decision Date: 22 June 1961
• Docket Number: 1 Div. 819
• Citation: 272 Ala. 336,131 So.2d 696
• Parties: Fred JORDAN v. Monette COPELAND.
• Court: Alabama Supreme Court

Page 696

131 So.2d 696

272 Ala. 336

Fred JORDAN v. Monette COPELAND.

1 Div. 819.

Supreme Court of Alabama.

June 22, 1961.

Edw. P. Turner, Jr., Chatom, for appellant.

Grady W. Hurst, Jr., Chatom, for appellee.

COLEMAN, Justice.

This is an appeal from a decree denying a petition to remove the administration of an estate from the probate court to the circuit court in equity.

The petitioner for removal, Fred Jordan, the appellant, asserts that he is the husband of Armina Jordan, deceased; that her will has been admitted to probate; and that appellee, Monette Copeland, has applied for letters testamentary as executrix of the will.

The appellee asserts that testatrix was the wife of Arthur Stevens at the time of her purported marriage to appellant and that the prior marriage of Stevens to testatrix had not been dissolved at the time of her death. Appellee concludes, therefore, that appellant was not the husband of testatrix and has no such interest in her estate as would entitle him to remove the administration to the circuit court under § 139, Title 13, Code 1940.

After hearing testimony ore tenus, the court found that appellant was not the husband of testatrix, because her marriage to Stevens had not been dissolved, and denied the removal petition.

Appellant insists that the court erred in finding from the evidence that appellee had sustained the burden of proof that rested on her to show that the marriage of testatrix to Arthur Stevens had not been dissolved.

The evidence shows a ceremonial marriage of testatrix to appellant in Washington County on May 24, 1944. This is the last marriage of testatrix shown by the evidence. The evidence also showed a prior marriage of testatrix to Arthur Stevens and that he was living after the death of testatrix. He testified as a witness. The appellee asserts the invalidity of the last marriage of testatrix, that is, her marriage to appellant. The presumption is that the prior marriage has been dissolved by divorce, and the burden to show that it has not been dissolved rests upon the person seeking to impeach the last marriage, notwithstanding he is thereby required to prove a negative. Ex parte Young, 211 Ala. 508, 101 So. 51; Sloss-Sheffield Steel & Iron Co. v. Alexander, 241 Ala. 476, 3 So.2d 46; Freed v. Sallade, 245 Ala. 505, 17 So.2d 868; Jordan v. Courtney, 248 Ala. 390, 27 So.2d 783. So, the question presented on this appeal is whether or not the evidence is sufficient to support the finding that the marriage of testatrix and Arthur Stevens had not been dissolved by divorce.

The presumption of an innocent second marriage is overcome when the circumstances require a reasonable inference to the contrary. Freed v. Sallade, supra.

The circumstances shown by the evidence are as follows: Arthur Stevens testified that he married testatrix in Waynesboro, Mississippi, but had forgotten the date. A marriage certificate purporting to have been executed by the clerk of the Circuit Court of Wayne County, Mississippi, was admitted in evidence over appellant's objection. The certificate states that Stevens and 'Miss Areminer Phillips' were married March 26, 1916. Stevens testified that he and testatrix had three children; that they separated in 1931 or 1932; that they were never divorced; that in 1936 he, Stevens, filed suit in Memphis, Tennessee, for a divorce but 'left it' with his lawyer, 'Charlie,' who sent Stevens 'an affidavit' when he 'came back to Mississippi'; and that he never got a divorce in that proceeding and never filed any other proceeding for divorce. Stevens further said the contents of the affidavit were 'The same as a divorce as I understand it,' and that he lost the affidavit when he left it in Vicksburg in 1938. Stevens said also that he had not lived with testatrix since 1936, and that he now has a wife in Florida where he was living at the time of the trial. A certificate by the ordinary of Lowndes County, Georgia, showing the marriage of 'Srthur Stevens' to Callie Guynn on March 7, 1948, was received in evidence without objection. Stevens further said he did not know whether testatrix had ever obtained a divorce from him or not, that he did not know where she had lived, and that he 'would hear from her along from the children.' Stevens testified that he was served with process in a divorce proceeding instituted by testatrix in Waynesboro, Mississippi. It is not clear whether he was served with that process in Waynesboro or elsewhere. He said he was living in Alabama at that time and that he did not know the disposition of that case. Stevens said he did not know whether testatrix had ever obtained a divorce from him or not, and that when he married Callie Guynn 'I believed I was free to marry, yes, or I would not have married.'

A certificate, by the Judge of Probate of Washington County, stating that the records of his office show that Walter Wright and 'Armenta' Phillips were married May 30, 1936, was introduced in evidence. A showing was admitted that Walter Wright would testify that he was married to testatrix, that he knew nothing of any divorce that she got from Stevens, and that as far as Wright knew she never had a divorce from Stevens. It was stipulated that Walter Wright was married to testatrix and divorced from her by decree of the Circuit Court of Washington County, but the validity of the marriage was not admitted.

Fred Jordan, the appellant, testified that he married testatrix in Washington County on May 24, 1944, and certificate to that effect is in evidence. He testified that after their marriage they lived together until the death of testatrix in 1958; that they had lived in Chickasaw; Chatom; Palestine, Texas; Chatom; Mizell, Mississippi; near Wagarville, Alabama; and then in Chatom until death of testatrix; that he had seen Arthur Stevens one time since 1944; that appellee, daughter of testatrix, had been in the home of appellant and testatrix 'Lots of times'; and that he, appellant, had first heard the accusation that he and testatrix were not married on the day the will was supposed to be probated. With reference to records of a divorce of testatrix and Stevens, appellant testified as follows:

'Q. Have you ever seen a divorce decree between Armina Stevens and Arthur Stevens? A. No, sir.

'Q. Have you made diligent search for one? A. No, I didn't. I have since this trial started.

'Q. You have investigated in almost all the counties in which Armina has lived? A. Since I knew her, yes.

'Q. And you do not find in any of those counties a divorce proceeding between Armina and Arthur Stevens; a decree of divorce divorcing them? A. No, sir.

'Redirect examination by Mr. Turner:

'Q. Mr. Hurst is putting words in your mouth, isn't he?

'Judge Pelham: I strike that remark.

'Q. Did you make these investigations yourself? A. No, I didn't.

'Q. You are not trained in searching the records to determine whether or not there have been any divorce proceedings, is that right? A. I looked for some in different places.

'Q. Do you know how to search the records for a divorce? A. No, sir, I had to get somebody at the courthouses to do it for me.

'Q. You have done none of it yourself? A. No, sir.'

Monette Copeland, appellee, testified that she was born in 1925, that her parents, Arthur Stevens and the testatrix, separated when appellee was nine or ten years old; that she, the appellee, until her own marriage in 1941, lived with the testatrix, and thereafter visited her 'every three or four weeks'; that appellee had no knowledge of her mother's ever getting a divorce from Stevens, but 'knew all along that she wasn't divorced from him.' Appellee admitted that she filed a sworn petition to probate the will of testatrix. The petition is dated July 28, 1958, and recites in pertiment part as follows:

'Your petitioner herewith propounds said will in which she believes that she is named as legatee and devisee and as executrix. Your petitioner further represents that the names, ages, and residences of the next of kin are as follows:

'1. Fred J. Jordan, husband of deceased, over the age of 21 years, and a resident of Washington County, Alabama.'

In answer to a question whether or not testatrix could have gotten a divorce from Stevens without appellee's knowing about it, appellee replied:

'A. While ago I explainted to you I don't know. She could have or she could not.'

This court has refused to accept the uncorroborated testimony of one of the parties to the prior marriage, to the effect that the prior marriage had never been dissolved by divorce, as being sufficient proof to establish the dissolution of the prior marriage when the evidence did not show an examination of the records of the divorce courts of the counties in which the parties had lived. Freed v. Sallade, supra; Dorsey v. Dorsey, 256 Ala. 137, 53 So.2d 601. On the second appeal in Dorsey v. Dorsey, 259 Ala. 220, 66 So.2d 135, however, the court held that the corroborating evidence was sufficient where the other party to the undissolved marriage refused to testify and the evidence showed that the divorce records in the counties where the parties had lived disclosed no divorce. In Bell v. Tennessee Coal, Iron & R. Co., 240 Ala. 422, 199 So. 813, the testimony of the wife in the prior marriage was corroborated by evidence that the records in Jefferson County, where the husband had lived, showed no divorce, and this was held to be sufficient to support a finding that the prior marriage had not been dissolved by divorce. In Sloss-Sheffield Steel & Iron Co. v. Watford, 245 Ala. 425, 17 So.2d 166, the testimony of the prior wife that the prior marriage had never been dissolved by divorce was corroborated by evidence that the records of four counties where the husband had lived did not show a divorce, and this evidence was held sufficient to rebut the presumption in favor of the subsequent marriage.

The law casts a strict burden on appellee to prove a negative, that is, that testatrix and ...