Shepard v. Carter

• Decision Date: 09 December 1911
• Docket Number: 17,317
• Citation: 86 Kan. 125,119 P. 533
• Parties: CARRIE SHEPARD, Appellee, v. HENDERSON CARTER et al. (BELLE OVERTON, whose real name is Belle Carter, Appellant; HATTIE CARTER, Appellee)
• Court: Kansas Supreme Court

119 P. 533

86 Kan. 125

CARRIE SHEPARD, Appellee, v. HENDERSON CARTER et al. (BELLE OVERTON, whose real name is Belle Carter, Appellant;

HATTIE CARTER, Appellee)

No. 17,317

Supreme Court of Kansas

December 9, 1911

Decided July, 1911.

Appeal from Leavenworth district court.

Judgment sustained.

SYLLABUS

SYLLABUS BY THE COURT.

MARRIAGE--Separation--Divorce--Presumptions. Appellant and intestate were married but never lived together. The intestate left the state declaring he would obtain a divorce, and returned two years later saying one had been obtained. Appellant, acting on the belief that a divorce had been granted, married another, and children were born of this marriage. Later, intestate obtained a license and formally married another and lived with her about eighteen years and until his death, and eight children were born of that marriage. When he died, appellant, in a partition proceeding, claimed that no divorce had been granted, and no record or documentary proof of the divorce was introduced. Under the facts of the case it is held that it will be presumed that the first marriage was dissolved by a divorce and that when appellant claimed to inherit land as the surviving widow of intestate it devolved on her to prove that no divorce had been granted.

R. B. McWilliams, John Clark, and M. A. Gorrill, for the appellant.

Lee Bond, and Malcolm N. McNaughton, for appellee Hattie Carter.

OPINION

JOHNSTON, C. J.:

This was an action in partition brought by Carrie Shepard, in which Henderson Carter and other claimants were named as defendants. Subsequently, in an amended petition, Belle Overton was brought in as a defendant and as one claiming an interest in the land sought to be partitioned. She alleged that she was the wife of Thomas L. Carter, known as Lewis Carter, at the time of his death, and therefore she claimed a share of the property which he had inherited from his father and mother. At the trial it was shown that on January 10, 1880, Belle Overton was married to Lewis Carter by the probate judge. They parted at the courthouse door and never lived together, but she gave birth to a child a few weeks after the ceremony. Shortly afterwards Lewis Carter went west, supposedly to California, and after two years' absence he returned to his former home in Kansas. He told Belle Overton he was going to obtain a divorce, and when he returned he told her that a divorce had been procured. Acting on this information and belief, Belle Overton married Edward Overton, of Lawrence, and two children were born of this marriage. After the marriage of Belle Overton, and on November 25, 1889, Lewis Carter, her former husband, married Hattie Shepard, and they lived together as husband and wife until his death in 1908, and of that union eight children were born, whose ages ranged from two to sixteen years at the time of his death.

Before his marriage to Hattie Shepard, Carter informed her that he had been divorced from Belle Overton, and she saw a document which was called his divorce paper. He made the statement to others, and repeated it to her mother in the probate judge's office where they were married. No record or documentary evidence of the divorce was introduced to prove that a divorce was granted, but all the parties concerned, including his first and second wives, proceeded on the theory that there was a valid divorce for a period of about twenty-five years. While the appellee was unable to, or at least did not, produce record proof of the divorce, yet from the facts stated the presumption arises that the second marriage, so long recognized by the parties as legal, is valid, and it devolves on Belle Overton, who attacks the validity of the marriage, to prove that it is illegal; that is, that a divorce from her had not been granted. As a basis for this presumption there is the license and authority granted by the probate judge for the second marriage, the formal entry into the marriage relation consummated by cohabitation, the maintenance of the relation for eighteen years and until the death of Lewis Carter and the birth of eight children, the declaration by him to his first wife that a divorce would be procured, and, afterwards, that one had been procured, the recognition of the existence of a divorce by the first wife when she married again, and the status of the children born of her second marriage. Now, when a marriage has been entered into in apparent good faith, as here, and children have been born of it, courts go to the limit in upholding the validity of the union and the legitimacy of the children. In section 457 of volume 1 of the sixth edition of Bishop on Marriage and Divorce it is said:

"When a marriage, therefore, has once been shown, however celebrated, whether regularly or irregularly, or however proved, whether directly or by circumstantial evidence, the law raises a strong presumption in favor of its legality; so that the burden is with the party objecting, throughout, and in every particular, to prove, against the constant pressure of this presumption of law, that it is illegal and void."

Every intendment of the law is in favor of matrimony, and wherever there is room for a presumption it always operates in favor of validity. This is especially true where the status of children is involved, and as stated in Hynes et at v. McDermott et al., 91 N.Y. 451, "the law presumes morality, and not immorality; marriage, and not concubinage; legitimacy, and not bastardy." (p. 459.) So when it appears that a person who was married before is living in wedlock, the presumption operates in favor of the second marriage, it being presumed that the first marriage has been dissolved by death or divorce; and it has been held that if it appears that a man has been married three times, the presumption is in favor of the third rather than...