Paschall v. Polk, 51599

• Decision Date: 30 January 1980
• Docket Number: No. 51599,51599
• Citation: 379 So.2d 316
• Parties: Ena Smiley PASCHALL, Ina Smiley Clayton, Yvonne Smiley Jones, Elsie Smiley Tatum, Eloise Smiley Blackwell, Oscar Cortez Smiley and Reuben James Smiley v. Barbara Neal POLK, Administratrix of Estate of Oscar Reuben Smiley, Deceased, et al.
• Court: Mississippi Supreme Court

Page 316

379 So.2d 316

Ena Smiley PASCHALL, Ina Smiley Clayton, Yvonne Smiley Jones, Elsie Smiley Tatum, Eloise Smiley Blackwell, Oscar Cortez Smiley and Reuben James Smiley v. Barbara Neal POLK, Administratrix of Estate of Oscar Reuben Smiley, Deceased, et al.

No. 51599.

Supreme Court of Mississippi.

Jan. 30, 1980.

Gambrell, Anderson & Gambrell, Andrew M. Gambrell, Hattiesburg, for appellants.

Tom Tullos, Bobby L. Shoemaker, Bay Springs, for appellees.

Before ROBERTSON, P. J., and WALKER and LEE, JJ.

LEE, Justice, for the Court:

Barbara Neal Polk Smiley petitioned for letters of administration in the Chancery Court of the Second Judicial District of Jasper County, alleging that she and her four (4) children are the sole surviving heirs at law of Oscar Reuben Smiley, who departed this life April 1, 1977. Subsequently, Ena Smiley Paschall, her six (6) brothers and sisters and Leverett Jones Smiley, her mother, filed a petition to establish themselves as heirs at law of Oscar Reuben Smiley. After a hearing in the cause, the chancellor found Barbara Neal Polk Smiley and her children to be the lawful heirs at law of the said deceased and entered judgment accordingly, from which judgment the other parties appeal.

The sole question presented here is whether or not a valid common-law marriage was consummated between Leverett Jones and Oscar Reuben Smiley prior to the time that Oscar Reuben Smiley and Barbara Neal Polk entered into a ceremonial marriage, and whether or not the chancellor erred in finding that Barbara Neal Polk Smiley and her children are the sole surviving heirs at law of Oscar Reuben Smiley.

Evidence relating to the alleged common-law marriage between Leverett Jones and Oscar Reuben Smiley is in conflict. Without detailing same, the record indicates that Leverett Jones first became acquainted with Oscar Reuben Smiley when she was nine (9) years old, and when she became thirteen (13) years of age, he was her "play-daddy" and "professor." During, and subsequent to, those times, Smiley was principal of the Spring Hill School in Montrose, Jasper County. Leverett Jones testified that in 1921, she began living with Smiley. At that time, she was a young girl in her teens and he was a mature, adult man. In 1922, Leverett Jones bore twins, Ena and Ina, whose father was Smiley. While Leverett Jones was pregnant, or shortly after the children were born, Smiley was "kicked out" of the Spring Hill church, and Leverett Jones' brother caused him to be arrested, apparently hoping that such action would result in the marriage of Smiley and Leverett Jones. At any rate, Smiley was released from jail and the children were taken into the home of Frank and Caroline Smiley, parents of Oscar Reuben Smiley, and were supported in that home by all the Smileys, although there was no marriage ceremony. Leverett Jones bore the following additional children, viz: Reuben James, 1926; Eloise, 1930; Yvonne, 1933; Oscar Cortez, 1936; and Elsie Louise, 1940. She testified that Smiley was the father of all those children.

About 1938, Barbara Neal Polk, a young graduate from Rust College in Holly Springs, applied for a teaching position at Spring Hill School, and she was employed on the faculty there. She and Smiley began to go with each other and, on August 21, 1940, they were ceremonially married in Jasper County, Mississippi, pursuant to a marriage license issued by the Circuit Clerk of Coahoma County (County of Polk's residence). On December 24, 1940, Willie Clarence Smiley was born to the marriage in the Newton Infirmary, Newton, Mississippi, and, in succession, were born Barbara Deverne Smiley, March 8, 1942, Coahoma County; Tommy Jeff Smiley, March 23, 1946, Coahoma County; and Cassandra Smiley, August 8, 1959, John Gaston Hospital, Memphis, Tennessee. The birth certificates, which appear in the record, indicate Oscar Reuben Smiley to be the father of the children and that he and Polk were married. The record further reflects that the information on the certificates of Willie Clarence Smiley and Barbara Deverne Smiley (children born in Newton and Coahoma Counties) was given to the registrar by Oscar Reuben Smiley.

Leverett Jones testified that, after Smiley was ceremonially married to Barbara Neal Polk and a child was born to her of the 1940 marriage, she (Jones) never bore any more children by Smiley, nor did she resume intimate relations with him. Barbara Neal Polk resided for approximately two (2) years in the Montrose area, became pregnant with her second child, and went to her parents' home in Clarksdale where the child was born. According to her, she returned on occasions to the Montrose community, and Smiley often came to see her in Clarksdale when she was living there. Smiley contributed to the support of his children by Leverett Jones, and, to his credit, six (6) of those seven (7) children acquired college degrees. Ena and Ina obtained Ph.D. degrees, and were living in California at the time of the trial. Smiley died there in 1977 at the age of ninety-two (92). None of...