Newman v. Kimbrough

• Decision Date: 28 April 1900
• Citation: 59 S.W. 1061
• Parties: NEWMAN et ux. v. KIMBROUGH et al.
• Court: Tennessee Supreme Court

59 S.W. 1061

NEWMAN et ux. v. KIMBROUGH et al.

Court of Chancery Appeals of Tennessee.

April 28, 1900.

Appeal from chancery court, Jefferson county; John P. Smith, Chancellor.

Bill by J. A. Newman and wife against W. J. Kimbrough and others. From a decree in favor of the defendants, complainants appeal. Affirmed.

C. T. Rankin, for appellants. Eugene Holtsinger and Washburn, Pickle & Turner, for appellees.

BARTON, J.

The bill in this case was filed by J. A. Newman and his wife, Lura A. Newman, against the defendant William J. Kimbrough, as guardian of Lura A. Newman, and against the other defendants as the sureties of Kimbrough on his guardian bond. The case presented in the bill is that the complainant J. A. Newman married his co-complainant, Lura A. Newman, on October 17, 1898, in the state of Texas; that the defendant Kimbrough was appointed guardian of the complainant Lura Newman, who before her marriage was Lura A. Kimbrough, on January 5, 1885, and that he had made his bond as such guardian, and entered upon the discharge of his duties; that on May 16, 1885, there came into the hands of the defendant William J. Kimbrough the sum of $100 as an estate belonging to the co-complainant, Lura A., under a devise to her by one Elisha N. Kimbrough. The bill alleges that the guardian had fraudulently neglected and refused to make settlement, and had failed and refused to pay over to the complainants said sum of money, though often requested so to do, and that complainants were entitled to recover the sum from him. The answer relied upon the following defense: The defendant William J. Kimbrough says that he denies that J. A. Newman and Lura A. Newman were husband and wife. He says that they may have pretended to go through some form of marriage in Texas, but that in fact J. A. Newman was legally married on May 17, 1884, to one Mary A. Glenn, and had continued to live with her as her lawful husband until some time in the year 1897, when his wife filed a bill against him in the circuit court of Jefferson county, seeking a divorce from him on account of adultery committed by Newman with the complainant Lura, the daughter of defendant, and pretended wife of complainant. The answer says that J. A. Newman and Lura have been guilty, as was clearly proven in the divorce case, of adultery, and that the circuit court in the case mentioned granted a divorce to Mary A. Newman, the wife of J. A. Newman, on this ground, and the defendant avers that he does not believe that the complainants were married at all, but that, if so, their marriage was void, the laws of this state prohibiting such a marriage, Mary A. Newman being still alive. And the defendant in his answer says that, if they were married at all, it was in the state of Texas, for the purpose of evading the laws of this state. He admits his appointment as guardian, and the receipt of the $100 willed to Lura Kimbrough. He denies that he has converted the money to his own use. Avers that he had expended more than this amount upon the complainant Lura. He denies that he had not made a settlement with the county court, but avers that he had made settlements with the county court, and that the settlements made by him show a balance of only $37 belonging to the complainant Lura, and denies their right to recover any amount at all, but says that he had offered to pay them the amount shown to be in his hands.

There is but little dispute as to the facts. We find that the complainant John A. Newman was married to one Mary A. Glenn on November 14, 1883, in Jefferson county; that she subsequently filed, on December 29, 1897, a bill against the complainant J. A. Newman, seeking a divorce from him on the ground of adultery committed with one Lura Kimbrough. After due process, a decree was regularly rendered in this cause granting a divorce to Mary A. Newman. And in this decree it was adjudicated that the defendant had been guilty of adultery with other women at different times and places, and especially with Lura Kimbrough, and was also guilty of maliciously abusing and mistreating complainant at divers times, and the bonds of matrimony were dissolved between the parties. As stated, this decree was entered on April 15, 1898. It further appears from the proof that the complainant J. A. Newman left this state on March 3, 1898, and returned on October 19, 1898. He went to Texas. He left his children by his first wife with his father. These were afterwards taken away from his father. The evidence by the father is, and there is nothing to contradict this, that at the time he left for Texas it was understood he was going to make Texas his permanent home. His father also states that the son John A. Newman returned to Tennessee at his solicitation, and with reluctance. It appears that the complainant J. A. Newman married the co-complainant Lura A. Newman in Texas on October 17, 1898, and, as stated, returned to Tennessee October 19, 1898, and that at this time his former wife was living, and was living when this suit was brought. On these facts, the chancellor, on the hearing, dismissed the complainants' bill, and they have appealed, and assigned errors.

The defense, of course, is that the complainants are not entitled to recover because the alleged marriage in Texas was illegal, the complainant Lura A. having been adjudged in the divorce proceeding to have been guilty of adultery with John A. Newman, and the divorce being granted on that account as well as on other grounds. The complainants' suit is based on the right of the husband to recover the legacy of the wife without regard to the termination of the wardship, and the complainants are not entitled to a decree if the marriage was illegal and void, or if it be true, as insisted by the defendants' counsel, that the courts will repel complainants on the ground of public policy. The provision of our Code in regard to marriages of this kind is that, when a marriage is absolutely annulled, the parties shall severally be at liberty to marry again, but a defendant who has been guilty of adultery shall not marry the person with whom the crime was committed during the life of the former husband or wife. So the case we have here is where a divorce was granted to the wife of the complainant John A. Newman in 1898, in a suit against him on the ground, among other things, of adultery with his present alleged wife; that at about the time of the divorce proceedings he left for Texas, remained there until October, 1898; and that within two days of his return to this state, and obviously on the day he left the state of Texas with the expectation of returning to this state to live, he married the co-complainant, Lura A., his first wife being then alive, and now seeks to maintain this...