McGaugh v. Mathis

• Decision Date: 19 November 1917
• Docket Number: 249
• Citation: 198 S.W. 1147,131 Ark. 221
• Parties: MCGAUGH, ADMINISTRATOR, v. MATHIS
• Court: Arkansas Supreme Court

198 S.W. 1147

131 Ark. 221

MCGAUGH, ADMINISTRATOR, v. MATHIS

No. 249

Supreme Court of Arkansas

November 19, 1917

Appeal from Benton Circuit Court; J. S. Maples, Judge; reversed in part, affirmed in part.

Judgment affirmed in part, and reversed in part.

Vol T Lindsey, for appellants.

1. The evidence is insufficient to show that appellee was lawfully married to the intestate. There is no proof as to the official character of the Missouri justice. 99 Ark. 147; 9 R C. L. 568. The burden was on appellee to prove a valid marriage.

But if so, the marriage was rendered void by proof of a former marriage. 67 Ark. 278; 54 S.W. 744. In the absence of proof the law of Texas as to marriage is presumed to be the same as the law of Arkansas. 70 Ark. 17; 65 S.W. 143. See also, 16 L R. A. (N. S.) 98.

2. It was error to admit the decree of the circuit court of Jasper County, Mo., granting a divorce from Lucinda Mathis. 47 Ark. 120; 70 Id. 343; 201 U.S. 561; 110 Id. 701.

3. The court erred in setting aside as a homestead the lot in Gentry. The husband had not impressed the homestead character upon the lot during life, and they never resided upon it. 33 Ark. 399-404; 29 Id. 280; Const. Ark., Art. 9, § 6.

Appellee, pro se.

1. The evidence is sufficient to show a lawful marriage between appellee and the deceased. The presumption is in favor of marriage.

2. The appellants are estopped from objecting to the decree of divorce. Lucinda consented to it and accepted a settlement deed under it. Appellants can not collaterally attack the decree. 14 Cyc. 723.

2. The evidence sustains the decree as to both dower and homestead.

OPINION

HUMPHREYS, J.

Appellee filed a petition in the probate court of Benton County, Arkansas, for the allotment of dower in the personal property and real estate of R. J. Mathis, deceased, described in the inventory of the administrator; and for a homestead right in lot 1, block 3, original town of Gentry, Arkansas, alleging that she is the widow of R. J. Mathis, deceased, and that her husband died intestate on the 24th day of January, 1916; that W. S. McGaugh was appointed administrator of the estate and entered upon his duties on February 3, 1916.

Lucinda Mathis was permitted to file an intervention alleging that she is the lawful widow of the said R. J. Mathis, deceased, and entitled to dower in the personal property and lands described in the inventory of the administrator.

Henry Philpot, as next friend of John and Archie Philpot, minors, became a party to the proceeding. In the trial of the cause, W. S. Floyd appeared as attorney for Lucinda Mathis, the administrator and heirs, and alleged the illegality of the marriage of petitioner, Lillie Mathis, to R. J. Mathis, deceased.

The cause was heard upon the pleadings and evidence by the probate court and a judgment rendered allotting petitioner, appellee herein, a dower interest in all the personal and real estate, from which judgment an appeal was prosecuted to the circuit court.

On trial anew in the circuit court, a like judgment was rendered in favor of appellee for dower interest in the real and personal property, and in addition, lot 1, block 3, in the original town of Gentry, was set off to her as a homestead.

The issue presented by this appeal for determination is which of the alleged widows is the lawful widow of R. J. Mathis deceased. The determination of this issue does not involve the title to the property in question. The property is conceded by all parties concerned to be the estate of R. J. Mathis, deceased. Authority has been conferred upon probate courts to allot dower on proper application. Kirby's Digest, § 2720.

"This section is not inconsistent with the Constitution and confers on the probate court a limited jurisdiction in the allotment of dower concurrent with the chancery court." Hilliard v. Hilliard, 52 Ark. 283, 12 S.W. 578.

It is insisted that the marriage of appellee to R. J. Mathis was not sufficiently established. Appellee testified that she was married to R. J. Mathis on September 15, 1915, at Joplin, Missouri, and lived with him until his death, which occurred four months thereafter, within one-half mile of Springtown, Arkansas, as husband and wife; that they lived in her home where she had resided for seventeen years.

A certified copy of the marriage license was introduced without objection, proper authentication being waived. The license showed upon its face to have been issued by Dan S. Major, recorder of deeds in Newton County, Missouri. It authorized any justice of the peace, among others, to solemnize a marriage between R. J. Mathis of Decatur, County of Benton, State of Arkansas, to Lillie South of Springtown, in said county.

A certificate of marriage signed by G. F. C. Coin, justice of the peace, Galena township, Jasper County, Missouri, was introduced over the objections of appellant for the reason that no showing was made that G. F. C. Coin was at the time a justice of the peace. The certificate was introduced in connection with the testimony of plaintiff. It purported on its face to be signed by a justice of the peace. Under the liberal rule allowable in proving marriages, we think it admissible as a circumstance tending to establish the marriage.

The general rule laid down by Cyc.. is that the fact of marriage may be proved by direct, circumstantial or presumptive testimony, either in the form of documentary or oral evidence. 26 Cyc. pp. 882-883.

The marriage between appellee and Mathis having been established in fact, every necessary prerequisite to the validity thereof must be presumed until the contrary is shown. 9 R. C. L. 568.

We think the evidence amply sufficient to support the finding of the court that a lawful marriage was consummated between appellant and R. J. Mathis.

It is contended that the marriage was void for the reason that at the time of the marriage R. J. Mathis was the lawful husband of intervener, Lucinda Mathis. Lucinda Mathis established her marriage to R. J. Mathis, on the 9th day of July, 1882, by record evidence, as well as oral proof. Prior to her intermarriage to R. J. Mathis, she married...