Prince v. Edwards

• Decision Date: 08 February 1912
• Citation: 175 Ala. 532,57 So. 714
• Parties: PRINCE v. EDWARDS.
• Court: Alabama Supreme Court

57 So. 714

175 Ala. 532

PRINCE v. EDWARDS.

Supreme Court of Alabama

February 8, 1912

Appeal from Probate Court, Jefferson County; J. P. Styles, Judge.

Sallie Prince and Lizzie Edwards filed rival petitions to be administratrix of John Edwards' estate. From an order issuing letters to Petitioner Edwards, Petitioner Prince appeals. Affirmed.

Jere C King, for appellant.

McNeal & Jones, for appellee.

SOMERVILLE J.

Appellant and appellee each filed her petition to be appointed as administratrix of the estate of John Edwards within 40 days after his death; appellant claiming to be his mother, and appellee claiming to be his widow. On hearing the petitions the probate court found, as a matter of fact, that appellee was the widow of John Edwards, and entitled to the preference claimed, and ordered that the letters of administration should issue to her as prayed. Appellant excepted to the finding of fact, and also to the decree granting administration to the alleged widow.

The evidence showed, without dispute, the following facts Appellee, Lizzie Edwards, married one Jake Jemison in Birmingham about 1895. After living with him three or four years, he ran away, after first attacking and nearly killing her by cutting. Appellee never saw him again, but was told (at some unstated time) that he was in Selma. After Jemison's desertion of her, she cooked for a living until 1903, in which year she married John Edwards; this marriage according to her testimony, was at the courthouse in Birmingham, and was solemnized by a person who was said to be Judge Porter (then probate judge); John Edwards having in his hand a paper represented to be a license. Appellee married Edwards under the name of Lizzie Ray; but the record of marriages "covering the period in which petitioner, Lizzie Edwards, claims to have been married to John Edwards" shows no license issued to John Edwards and Lizzie Ray. They then lived together as husband and wife, and while so living appellee was informed, in 1908, that Jake Jemison was dead, and this fact she communicated to John Edwards. After Jemison's death, she and Edwards continued to live together, treating each other as husband and wife, recognized as husband and wife by their neighbors, and looked upon in the community as such. They called each other husband and wife, and on one occasion (after Jemison's death) she introduced him to the witness Frank, on the streets of Birmingham, as her husband. This status continued until Edwards' death in May, 1911.

Appellant's contention is that, however satisfactorily these facts and conditions might ordinarily evidence a common-law marriage, their effect is here completely destroyed by the fact, as alleged, that appellee's connection with Edwards was orginally meretricious and unlawful; that its original character is, as matter of law, presumed to continue until a change to a lawful status is shown; and that the burden is on appellee to distinctly show that a new marriage contract or agreement was made between her and Edwards subsequently to the death of Jemison. And it is insisted that there is nothing in the record to show such a consensus between them.

The general principle is thus stated: "While all reasonable presumptions are in favor of marriage, yet they are overcome by proof that the relations were in their origin illicit and unlawful. The illicit relation is presumed to continue until there is proof that the parties were married. This presumption, whether of fact or of law, may be overcome by satisfactory proof of cohabitation, acknowledgment, and reputation." 19 Am. & Eng. Ency. Law (2d Ed.) 1206, f.

Some authorities have very properly held that, where the relation was at first notoriously meretricious--that is, lustful and without matrimonial intent--as distinguished from unlawful merely, and especially where the parties willingly choose the meretricious state in defiance of law and social custom, there being no impediment to lawful matrimony, the evidence of a change to lawful matrimony ought to be clear and strong. Klipfel v. Klipfel, 41 Colo. 40, 92 P. 26, 124 Am. St. Rep. 96, 103, and note page 113. Mr. Browne, in his note to Appeal of Reading, etc., Co., 113 Pa. 204, 6 A. 60, 57 Am. Rep. 448, 461, says: "The presumption of the continuance of an illicit cohabitation is not so easily overcome where it appears that the parties have manifested a preference for a meretricious union. In such a case, the authorities seem to be uniform that, in the absence of some evidence of a change in the relation between the parties, they are presumed to continue in that relation"--citing Collins v. Collins, 80 N.Y. 9; Badger v. Badger, 88 N.Y. 553, 42 Am. Rep. 263; State v. Worthingham, 23 Minn. 528; Yardley's Estate, 75 Pa. 207, and other cases.

After a very full review of the authorities, both English and American, Mr. Browne states the following conclusions: (1) That an illicit connection is presumed to continue until there is evidence to the contrary. (2) That, where the parties have manifested a desire to form a matrimonial union the presumption will be rebutted, so as to make the question one of fact, by the slightest circumstance; and that a mere cohabitation, without any apparent change, after the parties have the right to contract a valid marriage will suffice to justify a submission of the question of marriage to a jury, and in fact require it. (3) That, where the parties are shown to have preferred a meretricious connection, something more than continued cohabitation,...