Scheper v. Scheper

• Decision Date: 12 June 1923
• Docket Number: 11251.
• Citation: 118 S.E. 178,125 S.C. 89
• Parties: SCHEPER ET AL. v. SCHEPER ET AL.
• Court: South Carolina Supreme Court

118 S.E. 178

125 S.C. 89

SCHEPER ET AL. v. SCHEPER ET AL.

No. 11251.

Supreme Court of South Carolina

June 12, 1923

Appeal from Common Pleas Circuit Court of Beaufort County; George E Prince, Judge.

Suit for partition by F. W. Scheper, in his own right and as executor of the will of F. W. Scheper, deceased, and others against Lee Marscher Scheper, the widow, and Lee Scheper and others, the infant children of Henry E. Scheper, deceased and Edna M. Tindall, the infant daughter of Minnie H Tindall, W. R. Tindall, and another, as executor of the will of F. W. Scheper, deceased. From a decree favorable to defendant Edna M. Tindall on an issue joined between that defendant and defendant W. R. Tindall, the latter defendant appeals. Affirmed.

Erwin, Erwin & Nix, of Athens, Ga., and W. J. Thomas, of Beaufort, for appellant.

Talbird & Jenkins, of Beaufort, for respondents.

MARION J.

In 1898, W. R. Tindall and Minnie H. Scheper were married at Beaufort, S.C. Thereafter, they resided in this state for about nine years. In 1907, they removed to North Carolina, where the husband's "employment took him." They lived together as husband and wife in the state of North Carolina until 1910, when Minnie H. Tindall brought suit and procured a divorce a mensa et thoro under the laws of that state; the decree awarding her alimony and the custody of her minor daughter, Edna. She then returned, with her child, Edna, to Beaufort, S. C., where she resided until her death in November, 1913. Shortly after the rendition of the judgment in the North Carolina divorce proceeding, W. R. Tindall removed to the state of Georgia, where he has ever since resided. He married in the state of Georgia another woman, by whom he had at least one child, before the death of Minnie H. Tindall.

Under the will of her father, F. W. Scheper, who died in February, 1913, Minnie H. Tindall became entitled to an undivided share in her father's estate. She died intestate as to this property, but prior to her death on November 14th, following a surgical operation she wrote and signed a paper, dated November 7, 1913, entitled "My Last Wishes," which she inclosed in an enevlope and indorsed, " For Addie, to be opened right after my death." This unwitnessed paper gives directions as to the writer's funeral and as to the disposition of certain articles of wearing apparel, and contains the following:

"All my belongings what Papa left me is now Edna's and at her death I want it divided even among my family sisters and brothers if she is married then it must go to her children."

The question here presented is as to the right of W. R. Tindall to take the husband's distributive share of one-third (section 3555, Civil Code 1912) in the intestate property of Minnie H. Tindall, deceased, and arises out of an issue joined between the daughter, Edna, and her father, W. R. Tindall, as parties defendant to a suit in equity for the partition of the estate of F. W. Scheper among the devisees under his will and their heirs at law thereto entitled, the subject-matter and scope of which will more fully appear by reference to the decision of this court on a former appeal herein, reported in 115 S.C. 421, 106 S.E. 33. The present appeal is by W. R. Tindall from a decree of Hon. Geo. E. Prince, circuit judge, holding and adjudging that-- "Edna M. Tindall, the daughter of Minnie H. Tindall, deceased, is the sole heir at law of her mother, and is therefore entitled to all of the property of every kind left by her."

That conclusion is based on findings and views which are thus stated in the circuit decree:

"The answer of the defendant W. R. Tindall admits all of the material allegations of the complaint except so much thereof as alleges that he had forfeited all right to any interest in his first wife's property, or that by his conduct he was estopped from claiming same, or that the writing above referred to left by Mrs. Minnie H. Tindall conveyed her interest in the property to her daughter, Edna M. Tindall. The plaintiffs introduced in evidence the paper left by Mrs. Minnie H. Tindall above referred to, a certified copy of the decree of divorce obtained in North Carolina, and of the proceedings in the court, and certified copies of the laws of North Carolina in reference to the obtaining of divorces a mensa et thoro and the effect thereof on the rights of the divorced husband as to his deceased wife's property. Under that law it appears that without reconciliation prior to his wife's death he lost all interest in her property. The defendant introduced no testimony. The issues in this case are narrowed down to the single question: Is the defendant W. R. Tindall, under the admitted facts in this case, entitled to a share of the property left by his first wife, Minnie H. Tindall, deceased? The writing left by her is not witnessed, and is therefore neither a deed nor a will. But W. R. Tindall could not have two wives living at the same time, and the law will presume that the second wife is his lawful wife, and should he have denied that she was his lawful wife, which he has not done, the burden rests upon him to prove it. This he has failed to do, nor has he attempted to do so."

The correctness of the conclusion of the circuit judge, as thus premised, is broadly challenged by exceptions which, in substance, advance two propositions: (1) That the marital bond, created by the South Carolina contract of marriage, had never been dissolved, and that at the death of Minnie H. Tindall the defendant W. R. Tindall was her lawful husband; and (2) that as such lawful husband he is not estopped to assert his legal marital right to take the husband's distributive share in the intestate property of his deceased wife in this state either (a) by reason of any force and effect that may properly be accorded the North Carolina judgment of divorce from bed and board, or (b) by his conduct subsequent to the rendition of said judgment in remarrying in the state of Georgia, etc. The foregoing contentions will be considered and discussed in the order stated .

First, as to the marriage bond: Under the well-settled law of this jurisdiction, there is no room for doubt that W. R. Tindall was the lawful husband of Minnie H. Tindall at the time of her death. That conclusion, in the state of the record here presented, requires no extended discussion. The marriage contracted by these parties in South Carolina could not be dissolved either by the consent of the parties, by the judgment of our courts, or by the act of our Legislature. Article 17, § 3, Constitution of 1895. Whether indissoluble by "the judgment of any foreign tribunal," as is broadly asserted by way of dicta in some of our earlier cases (Duke v. Fulmer, 5 Rich. Eq. 121; Boyce v. Owens, 1 Hill, 10), or not, certainly no such foreign decree or judgment of divorce purporting to dissolve a marriage contracted in this state will be accorded recognition except where and to the extent such recognition may be required by the full faith and credit clause of the United States Constitution. See McCreery v. Davis, 44 S.C. 195, 22 S.E. 178, 28 L. R. A. 655, 51 Am. St. Rep. 794; Haddock v. Haddock, 201 U.S. 562, 26 S.Ct. 525, 50 L.Ed. 867, 5 Ann. Cas. 1; Atherton v. Atherton, 181 U.S. 155, 21 S.Ct. 544, 45 L.Ed. 794; Note 5 Ann. Cas. 26. No judgment or decree of any foreign tribunal which even purported to dissolve the bonds of the marriage here in question was introduced in evidence. The judgment of the North Carolina court, granting a divorce a mensa et thoro, left the legal bond of marriage intact. 19 C.J. 157; Castlebury v. Maynard, 95 N.C. 281; Taylor v. Taylor, 93 N.C. 418, 53 Am. Rep. 460; Cooke v. Cooke, 164 N.C. 272, 80 S.E. 178, 49 L. R. A. (N. S.) 1034; Young v. Naylor, 1 Hill, Eq. 383. No presumption properly predicable upon the husband's admitted second marriage in Georgia can be permitted, under the long-established public policy of this state, to supply the place of the clear proof in due form of such a foreign judgment of divorce a vinculo matrimonii as might be entitled by virtue of such court's jurisdiction of the person of both parties and of the subject-matter to recognition in the courts of this state under the full faith and credit clause of the federal Constitution. See McCarty v. McCarty, 2 Strob. 6, 47 Am. Dec. 585; Hallums v. Hallums, 74 S.C. 407, 54 S.E. 613; McCreery v. Davis, 44 S.C. 195, 22 S.E. 178, 28 L. R. A. 655, 51 Am St. Rep. 794; Haddock v. Haddock, 201 U.S. 562, 26 S.Ct. 525, 50 L.Ed. 867, 5 Ann. Cas. 1. It follows that appellants' contention that W. R. Tindall was at the death of Minnie H. Tindall her husband de jure must be sustained.

But appellants' second proposition as to estoppel cannot be sustained. In that connection, the force and effect that may properly be extended to the North Carolina judgment of divorce a mensa et thoro will first be considered. A duly authenticated copy of the record of the proceedings brought by Minnie H. Tindall against W. R. Tindall in the superior court of Forsyth county, N. C., seeking a divorce a mensa et thoro, was introduced in evidence, together with certain of the statutes of that state bearing upon the marital property rights of the husband from whom the wife has obtained a divorce of that character. At the time of the commencement of these proceedings in the spring of 1910, it is not disputed and the record discloses no room for doubt that the bona fide matrimonial domicile of the parties was and had been for more than two years in the state of North Carolina. The defendant in that suit, W. R. Tindall, personally appeared and defended. The issues of fact were submitted to a jury, which found that the defendant (husband) had offered "such indignities to the person of the plaintiff (wife) as to...