Myatt v. Myatt

• Decision Date: 30 June 1867
• Citation: 44 Ill. 473,1867 WL 5190
• Parties: E. WESLEY MYATTv.MURPHY MYATT, Administratrix, etc., et al.
• Court: Illinois Supreme Court

44 Ill. 473

1867 WL 5190 (Ill.)

E. WESLEY MYATT

v.MURPHY MYATT, Administratrix, etc., et al.

Supreme Court of Illinois.

June Term, 1867.

WRIT OF ERROR to the Circuit Court of Bond county; the Hon. J. GILLESPIE, Judge, presiding.

The facts in this case are fully stated in the opinion.

Mr. H. K. S. O'MELVENY, for the plaintiff in error.

Mr. S. P. MOORE, for the defendants in error. Mr. CHIEF JUSTICE BREESE delivered the opinion of the Court:

This was an application to the County Court of Bond county, to revoke certain letters of administration, which had been granted by that court to Mrs. Murphy Myatt and Williamson Plant, on the estate of Alexander Myatt, deceased. The court decided against the application, and an appeal was taken to the Circuit Court with the same result, that court finding that Murphy Myatt was the widow of Alexander Myatt, deceased. The application to revoke the letters was made by one E. Wesley Myatt, who states, in his affidavit in support of the application, that Murphy, when she married Alexander Myatt, had a husband named William Wilmarth then living, and that her subsequent marriage with Alexander Myatt was, for that reason, void. Affiant states that the children of Myatt are entitled to the administration, and that he is one, and that Williamson Plant is not one of the next of kin to the deceased intestate.

The proof shows that William Wilmarth and Murphy Sugg, now Murphy Myatt, lived together as man and wife and had two children born to them, and that she said she was married to Wilmarth, though it is not proved he ever said so; but, on the contrary, it was proved, without objection, by appellant, that Wilmarth admitted, when he was living with Murphy, he had a wife living in East Tennessee and a son by her. Wilmarth and Murphy Sugg lived together from about 1827 to about 1829, one or two years; when he went off and came back, and then left to get his boy. In 1832 Murphy, under her maiden name of Murphy Sugg, was regularly married by a license duly issued to Alexander Myatt, and has a family of six children by him, most of them grown.

The proof of her marriage with Wilmarth is that of general report, and of their cohabiting together as man and wife and having one or more children born to them. The presumptions of law, undoubtedly, are always in favor of a marriage between parties who are living together as husband and wife, but it is only a presumption and may be rebutted.

At the time of their cohabitation, the statute on the subject of marriage was substantially the same as it is now, and required a license from the clerk of the County Court, who was to keep a record of the issuing of it, and make a registry of it, with the return of the magistrate or minister of the gospel before whom the marriage was declared, in a book to be kept for that purpose. Publication in church was allowed instead of a license, but not one marriage, so far as our knowledge or information extends, took place in that mode, at...