Scott's Adm'r v. Scott

• Decision Date: 08 January 1904
• Parties: SCOTT'S ADM'R et al. v. SCOTT.
• Court: Kentucky Court of Appeals

77 S.W. 1122

SCOTT'S ADM'R et al. v. SCOTT.

Court of Appeals of Kentucky.

January 8, 1904

Appeal from Circuit Court, Jefferson County, Chancery Division.

"Not to be officially reported."

Action by the Mutual Life Insurance Company of Kentucky against Nancy J. Scott and others interpleaded to determine their rights to the proceeds of a policy of insurance. From a judgment in favor of defendant Nancy J. Scott, defendant William A. Earl, administrator of John M. Scott, deceased and another defendant, appeal. Affirmed.

A. A Hagan, for appellants.

Wm Krieger and Burwell K. Marshall, for appellee.

SETTLE J.

John M. Scott died intestate on the 14th day of May, 1902, in Louisville, Ky. his place of residence. Afterwards, on August 22, 1902, the appellant William A. Earl was by an order of the Jefferson county court appointed administrator of the estate of the decedent. Before his death the Mutual Life Insurance Company of Kentucky issued to the decedent a policy of insurance, No. 24,024, on his life, for $1,000, in consideration of $49.40, then paid, and a like sum to be paid by the insured on or before the 6th day of January in each year during the continuance of the policy; the amount of the insurance being payable upon the death of the insured to his "wife, Nancy J. Scott," after receipt by the company of the necessary proofs thereof. It appears from the record that John M. Scott was married three times. The first marriage was with Florilda Waldron, in Louisville, on October 12, 1869. Five children were born of this marriage, three of whom are living, and of full age. Scott and his first wife lived together for about 18 years. Then they separated, and continued to live apart until his death. The second marriage of Scott occurred in Cartersville, Ga., with Capernia Willis, formerly of Barren county, Ky. She died about 15 months later, leaving one child, who was reared by, and yet lives with, the third wife. The third marriage was with Nancy J. Willis, who is yet living. This marriage occurred in Bar ren county, Ky. in July, 1890. The third wife was a sister of the second, and she continued to live with the decedent as his wife until his death. One child was born of the last marriage. He is still living, and is about 11 years of age. The third wife, known as Nancy J. Scott, is the beneficiary named in the policy, and was found to be in possession of the policy after the death of the insured. Proofs of the death of the insured were furnished the insurance company by the appellee, Nancy J. Scott, but as she, Florilda Scott, the first wife, and W. A. Earl, administrator of the estate of John M. Scott, the deceased, were all claimants of the amount due under the policy, this action was instituted by the company to obtain of the chancellor advice and direction as to the disposition to be made of the proceeds of the policy, and to this end all three of the claimants were made defendants, and called upon to assert their respective claims, which was done by proper pleadings on the part of each of them. In the meantime, by permission of the court and agreement of the parties, the amount of the policy was paid into court by the insurance company, and an order entered discharging it from further liability. The judgment rendered by the chancellor gave the proceeds of the policy to the appellee, Nancy J. Scott, and from that judgment the appellants, Earl, administrator, and Florilda Scott, have appealed.

It is insisted for the administrator that the marriage of his decedent with the appellee, Nancy J. Scott, was invalid, and that by reason thereof she had no insurable interest in his life, for which reason the insurance money should be received by him as assets belonging to the decedent's estate. The appellant Florilda Scott also relied upon the alleged invalidity of the decedent's marriage with the appellee Nancy J. Scott, and insists that she (appellant) was never divorced from the decedent, and that she was therefore his only lawful wife at the time of his death, which entitles her to the insurance due under the policy. Upon the other hand, the appellee, Nancy J. Scott, contends that the copy of the marriage license and the certificate of the minister showing the solemnization of the rites of matrimony between her and the decedent, presented by the record, furnish sufficient proof of the validity of that marriage, added to which is the further fact that she and the decedent continuously lived together as husband and wife from the date of their marriage to the time of his death. We are of opinion that the facts appearing in the record create the legal presumption that the decedent was divorced from the first wife, the appellant Florilda Scott, as they conclusively show that he separated from her more than fifteen years before his death, and never lived with her again, and, further, that he left this state avowedly to live in another state long enough to get a divorce. Also that after the separation and following his return to this state after a long absence he married the second wife, and, after her death, the third, with each of whom he lived in Louisville, which city, with the exception of the absence for the avowed purpose of securing a divorce from the first wife, was the place of his residence, for more than 30 years, holding out to the world each in turn as his wife; all with the knowledge, and in the daily presence, so to speak, of the first wife, Florilda Scott, who was also a resident of Louisville during that time, and lived near enough to the second and third wives to meet the second before her death, and to see the third often and at any time, yet she was never known to deny that he had been divorced from her, or to make complaint of his marriage to either of them. In addition to what has been mentioned, the appellant Florilda permitted two of her daughters-- young ladies--to live some time with their father...