Overton v. Overton, 17
| Decision Date | 18 September 1963 |
| Docket Number | No. 17,17 |
| Citation | 132 S.E.2d 349,260 N.C. 139 |
| Court | North Carolina Supreme Court |
| Parties | Dorothy Isabella OVERTON, Widow, Petitioner, v. Annabelle OVERTON, non compos mentis, Jennette Overton, Frederick Overton, Sylvia Lee Overton, minors, and Elijah Cherry, Trustee and Executor of the Estate of Anthony Ashley Overton, Deceased, Respondents. |
J. Kenyon Wilson, Jr., and Killian Barwick, Elizabeth City, for petitioner.
Frank B. Aycock, Jr., and W. C. Morse, Jr., Elizabeth City, for respondents Annabelle Overton and Gerald F. White, guardian ad litem.
This is a sequel to Overton v. Overton, 259 N.C. 31, 129 S.E.2d 593, heard at the Spring Term 1963. The first appeal was by petitioner. The case was tried at the September 1962 Term of the Superior Court of Pasquotank County before Bundy, J., and a jury. The jury answered the issue in favor of petitioner, but the judge, notwithstanding the verdict and contrary thereto, entered judgment in favor of respondents. The former opinion deals with the questions of law raised by the entry of such judgment. We directed that the judgment be vacated and a judgment be entered in accordance with the verdict, respondents to have the right to appeal from the latter judgment when entered, if so advised. At the March 1963 Session of the Superior Court of Pasquotank Peel, J., entered judgment in accordance with the verdict as directed, and respondents excepted and appealed, assigning error.
The recitals of fact appearing in the former opinion should be ignored for the purposes of the present appeal. They related to matters then under consideration. The pleadings and evidence pertinent to the present appeal are limited to those involved in the trial of the issue before the jury.
The petition alleges in substance: Anthony Ashley Overton (hereinafter referred to as Anthony) died 12 November 1959 leaving a last will and testament. He willed his property to Annabelle Overton, Jennette Overton, Frederick Overton and Sylvia Lee Overton, respondents. At the time of his death he owned valuable property, real and personal. Petitioner, Dorothy Isabella Overton (Dorothy) is the widow of Anthony and is entitled to a year's support and dower.
Respondents, answering the petition, deny that Dorothy is the widow of Anthony and deny that she is entitled to any of his property.
Petitioner introduced in evidence a duly authenticated copy of the marriage record of New York County, State of New York, containing: (1) a copy of a 'license for marriage,' setting out the application therefor of one, Anthony Ashley Overton, age 22, born in Weeksville, North Carolina, and of one, Dorothy Isabella White, age 23, born in Weeksville, North Carolina; and (2) copy of 'marriage certificate' of Rev. James A. Manning stating that he solemnized the rites of matrimony between the parties (naming them as above) at Brooklyn, New York, in the presence of Benjamin B. Overton (Benjamin) and Viola C. Overton (Viola) as witnesses on 30 November 1929--the marriage certificate is subscribed by Rev. Manning and the witnesses, Benjamin and Viola.
Petitioner's witnesses testified to the following effect: Careful investigation does not disclose that there has been any action for or judgment of divorcement or annulment of the marriage of Anthony and Dorothy in New York or North Carolina. Dorothy has had no notice of any divorce or annulment action, nor has she heard that any such action has been instituted anywhere. She was 15 years of age in 1929. In New York in 1929 a girl of 15 could marry with the consent of a parent, guardian or a person standing in loco parentis, and if she married without such consent the marriage was only voidable. The signatures on the application for marriage license are the genuine signatures of Anthony, the deceased, and Dorothy, the petitioner. On one occasion Anthony had visited Dorothy in the home of her mother at Weeksville (it does not appear whether this was before or after 30 November 1929). Since November 1929 Dorothy has gone by the name of Dorothy Overton.
Respondents' evidence tends to show: Benjamin is the brother of Anthony, the deceased, and lived in Brooklyn, New York, in 1929. Dorothy was in Brooklyn in 1929 and so was Anthony. Dorothy became pregnant and Anthony acknowledged that she was pregnant by him. Benjamin arranged for Rev. Manning to come to his (Benjamin's) home to solemnize the rites of marriage of Anthony and Dorothy. A ceremony was performed in Benjamin's living room on 30 November 1929. Dorothy did not take part in the ceremony, but remained at all times in another part of the house. Beulah Lewis stood in for Dorothy at the ceremony and stated to Rev. Manning that she was Dorothy White. (It is suggested that Beulah was asked to stand in for Dorothy for fear that Rev. Manning would refuse to perform the ceremony for one so young as Dorothy when no consent had been obtained from her parent for her marriage.) Benjamin and Viola, his wife, signed the certificate as witnesses. Viola and Rev. Manning are now dead. The whereabouts of Beulah Lewis is unknown. Dorothy stayed in Benjamin's house until after the baby was delivered--stillborn. Anthony did not cohabit with her after the ceremony.
In rebuttal Mr. Rubin, a New York attorney, testified that he had a telephone conversation with Benjamin in which the latter stated that the only persons present at the marriage ceremony were Rev. Manning, Anthony, Dorothy, Viola and himself, that Benjamin did not mention Beulah Lewis, and that Benjamin later refused to sign an affidavit that Anthony and Dorothy were married. Benjamin, being recalled, testified that he had a conversation with the attorney, that he refused to sign the affidavit because it was untrue, that Dorothy was not present at the ceremony and he did not tell the attorney she was.
An issue was submitted to and answered by the jury as follows:
In apt time the respondents requested Judge Bundy in writing to charge the jury:
'* * * (T)hat, if the jury finds as a fact from the evidence, that Dorothy Isabella Overton did not participate in the marriage ceremony performed in the home of Benjamin B. Overton on November 30, 1929, but was seated in a room some distance from where said marriage ceremony was performed, then such purported marriage was a nullity and, if the jury should so find by the greater weight of the evidence, the jury should answer the only issue 'NO"'.
Respondents assign as error that part of the following excerpt from the charge enclosed in parentheses:
'* * * (O)ne must be present and participate in marriage as one of the contracting parties to constitute a legal and valid marriage, the Court instructs you that it has been asked to do, which it would have done so anyway, that if the jury finds as a fact from the evidence that Dorothy Isabella Overton did not participate in the marriage ceremony performed in the house of Benjamin B. Overton on November 30, 1929, but was seated in a room some distance from where said marriage ceremony was performed, then such purported marriage was a nullity and if the jury should find by the greater weight of the evidence, the jury should answer the only issue in this case 'NO"'.
'(I told you that the burden of that issue, the burden of this issue, the burden of proof on the issue is upon the plaintiff to satisfy you by the greater weight of the evidence that she is the widow, but when she offers a certified copy of the marriage ceremony properly exemplified or other evidence of fact that there was a marriage, that a marriage ceremony took place between Anthony Ashley Overton and herself, Dorothy Isabella White, then she has made out a prima facie case, that is, one which stands until the contrary is shown; then if the respondents, contending that she was not actually in participation, a participant in the marriage ceremony, and that she was somewhere else, that is an affirmative defense, and the burden is upon them to prove that it is as they said, that she was not present during the marriage ceremony, participating in it, as one of the contracting parties.)'
At the trial before the jury there was no evidence or suggestion that Anthony entered into a marriage ceremony with another woman after November 1929, so the sole question for determination upon the evidence presented was whether he married Dorothy as alleged in the petition.
If a ceremonial marriage is in fact established by evidence or admission it...
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