Rogers v. McLeskey

• Decision Date: 09 June 1932
• Docket Number: 7 Div. 85.
• Citation: 225 Ala. 148,142 So. 526
• Parties: ROGERS v. MCLESKEY.
• Court: Alabama Supreme Court

142 So. 526

225 Ala. 148

ROGERS v. MCLESKEY.

7 Div. 85.

Supreme Court of Alabama

June 9, 1932

Appeal from Probate Court, Etowah County; E. L. Hurst, Judge.

Petition of Sarah Rogers to have exemptions set apart to her as widow of A. E. Rogers, deceased, contested by Isa McLeskey, as executrix of the will of A. E. Rogers, deceased. From a decree dismissing the petition, petitioner appeals.

Reversed and remanded.

McCord & McCord, of Gadsden, for appellant.

Jas. D Giles and Cullie, Hunt & Cullie, all of Gadsden, for appellee.

THOMAS J.

The question of fact before the court, and determined adversely to petitioner, appellant here, was whether Sarah Rogers was the widow of decedent.

The judgment was final against petitioner, and she was taxed with the costs; said judgment was appealable. Section 6114, Code; De Graffenried v. Breitling, 192 Ala. 254, 68 So 265; Awbrey v. Estes, 216 Ala. 66, 112 So. 529.

The right of homestead and exemption by the alleged widow of decedent, after she had filed an alleged dissent as widow from the will, was the question of fact presented. Appellant's counsel reduce the issues to this: Petitioner avers that she is the widow of A. E. Rogers; the appellee avers "she was not the widow, thus making this one point a matter of proof." The hearing before the judge of the probate court was on oral evidence, and he denied the petition, dismissed the same, and taxed the alleged widow with the costs.

The finding of the judge of probate on evidence ore tenus is like the verdict of a jury, and will not be disturbed by reviewing that tribunal, except for grounds which would warrant the setting aside of a verdict of the jury. Darrow v Darrow, 201 Ala. 477, 78 So. 383; Hagood v. Spinks, 219 Ala. 503, 122 So. 815; Andrews v. Grey, 199 Ala. 152, 74 So. 62, and many authorities.

Did the trial court apply the law to the facts in holding that appellant was not the widow of decedent Rogers? The decisions are that marriage may be contracted in this state by parties competent to so contract without ceremony or solemnization, by mutual and actual agreement and consent by the parties capable in law to that marriage relation, permanent and exclusive of all others, followed by cohabitation as man and wife and their mutual assumptions openly of marital duties and obligations. Moore v. Heineke, 119 Ala. 627, 24 So. 374; Tartt v. Negus, 127 Ala. 301, 308, 28 So. 713; Herd v. Herd, 194 Ala. 613, 69 So. 885, L. R. A. 1916B, 1243; White v. Hill, 176 Ala. 489, 58 So. 444; Ashley v. State, 109 Ala. 48, 19 So. 917; Hawkins v. Hawkins, 142 Ala. 571, 38 So. 640, 110 Am. St. Rep. 53; Beggs v. State, 55 Ala. 108; Woodward Iron Co. v. Dean, 217 Ala. 530, 532, 117 So. 52, 60 A. L. R. 536; Walker v. Walker, 218 Ala. 16, 117 So. 472; Wall v. Williams, 11 Ala. 826.

In Fuquay v. State, 217 Ala. 4, 9, 114 So. 898, the cases are collected, the usual presumptions discussed, and the conclusion announced from the cases to the effect that "there are no absolute presumptions against the continuance of the life of one party to a marriage or of the dissolution of the first marriage in order to establish the innocence of the other party to a subsequent marriage, but in each case the question is one of fact, to be determined, as any other question, on a consideration of the facts and inferences therefrom," on the authority of Mr. Freeman's note, as follows: "*** There is no unbending presumption in favor of a second marriage or of the innocence of the parties, but, on the contrary, that the decision of any particular case must rest on its own attending facts and circumstances. Moreover, it is believed that little force should be given this artificial presumption in order to meet the exigencies of a given case." 89 Am. St. Rep. 206.

In Walker v. Walker, 218 Ala. 16, 117 So. 472, 473, is the observation from Turner v. Williams, 202 Mass. 500, 89 N.E. 110, 24 L. R. A. (N. S.) 1199, 132 Am. St. Rep. 511, by Mr. Chief Justice Rugg, that no presumption is conclusive as to the validity of the marriage status, that the case is to be "determined according to common sense aided to what extent it may be by the presumptions involved."

The case of Fuquay v. State, supra, further states, from Williams v. State, 151 Ala. 108, 111, 44 So. 57, and Moore v. Heineke, 119 Ala. 636, 24 So. 374, that "'on an issue of marriage vel non, evidence of co-habitation and general, uniform reputation, and of the declarations and conduct of the parties while living together, holding themselves out to the world as man and wife, is admissible, and that these facts raise a prima facie presumption of marriage, which will prevail until overcome by evidence or neutralized by counter presumptions."'

The decision by Mr. Chief Justice Anderson in Darrow v. Darrow, 201 Ala. 477, 478, 78 So. 383, 384, established the rule that the petitioner or rival claimant was not "precluded by the exception contained in section 4007 of the Code of 1907 [section 7721, Code 1923] from testifying as to her marriage with the decedent and the facts connected therewith, for the effect of same did not diminish the assets of his estate, or fasten a liability upon same, as the issue involved a contest merely between rival claimants to take or share in the distribution of the said estate under the law. Nolen v. Doss, 133 Ala. 259, 31 So. 969; Kumpe v. Coons, 63 Ala. 448; Henry v. Hall, 106 Ala. 101, 17 So. 187, 54 Am. St. Rep. 22; Snider v. Burks, 84 Ala. 58, 4 So. 225."

The evidence was in conflict, or there were reasonable inferences therefrom as to the intention of the parties, when the whole course of their relations or conduct is considered, aside from the fact that their original cohabitations were unlawful. The burden of proof rested upon petitioner appellant. Owens v. Betts, 219 Ala. 604, 122 So. 811.

The general principle is that reasonable presumptions are in favor of marriage, there being no impediment to lawful matrimony; yet such presumptions may be overcome by proof that the relations in their origin were illicit and unlawful, and this is presumed to continue until there is proof to the contrary, that is clear and strong (Prince v. Edwards, 175 Ala. 532, 57 So. 714; Fuquay v. State, 217 Ala. 4, 114 So. 898; White v. Hill, 176 Ala. 480, 489, 58 So. 444; Williams v. Wilson, 210 Ala. 289, 291, 97 So. 911; Banks v. State, 96 Ala. 78, 11 So. 404; Davidson v. Davidson, 206 Ala. 493, 90 So. 493; L. R. A. 1915E, 80 note, 91 et seq. note), that the continued relations were intended by the parties to be lawful.

It is further established by our decisions that the conduct and declarations of the cohabiting parties during the time are admissible as a part of the res gestæ of the cohabitation, and illustrate the intention and act. Moore v. Heineke, 119 Ala. 637, 24 So. 374; Buchanan v. State, 55 Ala. 154, by Stone, J.; Fuquay v. State, 217 Ala. 4, 8, 114 So. 898; Langtry v. State, 30 Ala. 536; Williams v. State, 54 Ala. 131, 25 Am. Rep. 665; Cameron v. State, 14 Ala. 546, 48 Am. Dec. 111; Fortner v. State, 12 Ala. App. 179, 181, 67 So. 720; Mickle v. State (Ala. Sup.) 21 So. 66; and by the collective facts, Bynon v. State, 117 Ala. 82, 23 So. 640, 67 Am. St. Rep. 163.

The questions of fact were determined by the court without a jury, and upon the testimony of witnesses given viva voce, and will be adjudged within the rule that obtains as to such findings of fact and judgment. The answer of Mr. Rogers and his evidence given in the suit for alimony are considered in pari materia, and with all the other evidence for a disclosure of the intent of the parties during the long relations and changing legal status. Henry v. White (Ala. Sup.) 140 So. 391; Richardson v. State, 204 Ala. 124, 85 So. 789; Ex parte E. C. Payne Lumber Co., 203 Ala. 668, 85 So. 9; Callan v. McDaniel, 72 Ala. 96; Birmingham Electric Co. v. Wood, 222 Ala. 103, 130 So. 786. See intention in former testimony in Rice v. Park, 223 Ala. 317, 135 So. 472.

Before a discussion of the facts we may observe that it was relevant to show that, when appellant began cohabitation or intercourse with deceased, she knew he had a living wife, and that he was not divorced therefrom. These facts were important, illustrating the intention of the parties as to the intimate relations of marriage and illicit intercourse. Prince v. Edwards, 175 Ala. 532, 57 So. 714; Drawdy v. Hesters, 130 Ga. 161, 60 S.E. 451, 15 L. R. A. (N. S.) 190.

The vital question is whether appellant was testator's wife when he died on May 14, 1930. If so, as widow dissenting from his will, her petition for exemptions should have been granted.

In North...