Simpson v. Simpson

• Decision Date: 14 June 1934
• Citation: 162 Va. 621
• Parties: EDGAR L. SIMPSON v. ETHEL LEWIS GREENBURG SIMPSON.
• Court: Virginia Supreme Court

Page 621

162 Va. 621

EDGAR L. SIMPSON v. ETHEL LEWIS GREENBURG SIMPSON.

Supreme Court of Virginia, Wytheville.

June 14, 1934.

Present, Campbell, C.J., and Epes, Hudgins, Gregory and Browning, JJ.

1. DIVORCE — Prior Suit of Wife for Divorce — Estoppel of Wife to Assert that Her Husband Was Dead at the Time of the Commencement of the Prior Suit or at the Time of the Entry of the Decree in the Prior Suit — Case at Bar. — In the instant suit, which was a suit for annulment of marriage, the husband contended that by her suit brought to procure a divorce from her former husband, defendant was estopped from asserting in the instant case that the former husband was dead either at the time of the commencement of the divorce suit against her former husband or at the time a decree was entered granting her a divorce from him.

Held: That this contention was not well made. No estoppel to assert in a subsequent proceeding that the former husband was dead arose either from the bringing of the suit for divorce or from the entry of the decree for a divorce.

2. DIVORCE — Decree against Absent Husband — Nullity if Husband Was Dead. — The entry of a decree of divorce upon an order of publication against an absent husband cannot be taken as an adjudication that the husband was alive at the time the decree was entered. All decrees entered against a person upon an order of publication are in a sense provisional. If the person be dead the decree is a nullity. It cannot in any sense be said to be an adjudication that he was alive at that time.

3. DIVORCE — Prior Suit of Wife for Divorce — Etoppel of Wife to Assert that Her Husband Was Dead at the Time of the Commencement of the Prior Suit or at the Time of the Entry of the Decree in the Prior Suit. — The bringing of a suit for a divorce and the entry of a decree for divorce therein does not estop the complainant from asserting in a subsequent suit between the complainant and another person that the defendant was dead at the time the divorce suit was brought.

4. DIVORCE — Cross-Bill — Suit to Annul Marriage. — In the instant case complainant contended that, where a bill is filed to annul a marriage, the defendant should not be allowed to file a cross-bill thereto praying for a divorce. But where a bill is brought to annul a marriage, if an answer pleading a good defense to the bill for annulment be filed, a cross-bill may be filed praying a divorce, if there be grounds for it.

5. DIVORCE — Prohibition against Remarriage within Six Months — Code of 1919, Section 5113 — Where One of the Parties Is Dead. — The prohibition in Code of 1919, section 5113, prohibiting marriage of either party to a divorce within six months of the date of such decree of divorce, has no application where one of the parties is dead when the decree is entered or where one of the parties has died after the entry of the decree. There is nothing in the subject matter of the statute which gives any indication of a purpose of prevent a husband from marrying again after the death of his wife, or vice versa.

6. STATUTES — Construction — Words of Statute. — Words are generally to be understood in their usual and most known signification; not so much regarding the propriety of grammar, as their general and popular use. Thus the law mentioned by Puffendorf, which forbade a layman to lay hands on a priest, was adjudged to extend to him who had hurt a priest with a weapon.

7. STATUTES — Construction — Absurd Signification. — Where words bear either none, or a very absurd signification, if literally understood, we must a little deviate from the received sense of them.

8. STATUTES — Construction — Dubious Words — Reason and Spirit of Statute. — When the words are dubious, the most universal and effectual way of discovering the true meaning of a law is by considering the reason and spirit of it; or the cause which moved the legislature to enact it. For when the reason ceases the law itself ought to likewise cease with it.

9. STATUTES — Construction — Intention Prevails over the Literal Sense of the Terms. — In the exposition of a statute the intention of the lawmaker will prevail over the literal sense of the terms, and its reason and intention will prevail over the strict letter. When the words are not explicit the intention is to be collected from the context, from the occasion and necessity of the law, from the mischief felt, and the remedy in view; and the intention is to be taken or presumed according to what is consonant with reason and good discretion.

10. STATUTES — Construction — Absurd Conclusion to Be Avoided. — If a literal construction of the words of a statute be absurd, the act must be so construed so as to avoid the absurdity. The court must restrain the words. The object designed to be reached by the act must limit and control the literal import of the terms and phrases employed.

11. DIVORCE — Marriage within Six Months of Divorce — Where One of the Parties is Dead at the Time of the Marriage — Case at Bar. — In the instant case if at the time of the marriage of appellant and appellee, the former husband of the appellee was dead at the time of the wife's remarriage to appellant within six months after she obtained a divorce a vinculo from her first husband, the second marriage was not void by reason of the fact that the second marriage took place within six months after the decree of divorce was entered.

12. PRESUMPTIONS AND BURDEN OF PROOF — Presumption of Death. — The presumption of death after seven years' absence is a true rebuttable presumption of law as distinguished from a presumption of fact (which is in reality merely an inference of a fact from facts proven) and from an administrative assumption of fact.

13. PRESUMPTIONS AND BURDEN OF PROOF — Rebuttable Presumption of Law — Definition. — A rebuttable presumption of law is a provisional procedural assumption of a fact which is prescribed by a rule of the substantive law. It is a rule of the substantive law declaring that for procedural purposes a certain prima facie probative force will and shall (until evidence sufficient to prove the contrary is introduced) be provisionally attached to a given state of facts; that is, a certain inference shall be drawn from it, unless and until evidence sufficient to prove the contrary has been introduced.

14. DIVORCE — Presumption of Death — Evidence Held to Raise Presumption of Death — Case at Bar. — In the instant case a wife procured a divorce a vinculo from her first husband, and her second husband sued for a divorce on the ground that the wife remarried within six months after she obtained the divorce a vinculo from her first husband.

Held: That the evidence was sufficient to raise a presumption based on seven years absence that the first husband was dead at the time the divorce decree was entered rendering the second marriage valid.

15. PRESUMPTIONS AND BURDEN OF PROOF — Presumption of Death. — A party is as much entitled to the benefit of a presumption of law as he would be to have any other appropriate legal rule applied to the facts of his case; and, where the facts which are required to give rise to the presumption are proven, the presumption must be applied (the presumed fact must be assumed to have been proven) until evidence sufficient to overcome the presumption and prove the contrary shall have been introduced.

16. PRESUMPTIONS AND BURDEN OF PROOF — Presumption of Continuance of Life. — The so-called presumption of the continuance of life is not a presumption of law but an inference, or rather an administrative assumption of fact. Such presumptions give place to true presumptions of law. Whenever the presumption of the death of a person prescribed by statute arises, it overcomes the inference, or the administrative assumption, that he is still alive, if under the conditions shown to exist it would be reasonable to think he still lived.

Appeal from a decree of the Circuit Court of the city of Norfolk on a rehearing. Former decree vacated, and decree appealed from affirmed.

The opinion states the case.

Page, Page & Page and Ivor A. Page, Jr., for the appellant.

N. T. Green and W. W. Elliott, for the appellee.

On Rehearing.

EPES, J., delivered the opinion of the court.

A decree was entered in this case by this court on June 15, 1933. A petition for a rehearing was filed and a rehearing granted, and the cause is now before us upon a rehearing.

The facts material to a decision of the cause, and some of the other facts proven which will give a better appreciation of the questions involved, are as follows:

On December 25, 1913, the appellee married J. E. Greenburg at Valdosta, Georgia. Of this marriage two children were born, who are living at this time. In 1922 or 1923 Greenburg deserted his wife and children and disappeared. At this time they were living in Norfolk, Virginia, where they had resided for several years. The record does not establish the exact day on which Greenburg left his wife and children and disappeared, but it was either on or prior to September 2, 1923.

The appellee says at one place in her testimony that the last time she saw him was "in 1921 or 1922," and at another place "in 1922." The chief probation officer of the juvenile and domestic relations court of the city of Norfolk, who was introduced as a witness by the appellant, testified that "on or about August 23, 1923, Mrs. Greenburg registered a complaint in that court against J. E. Greenburg alleging that he had deserted her and their two children on December 2, 1922. The only thing in the record which is in conflict with the above testimony are the allegations in appellee's bill for a divorce from Greenburg and in her cross-bill filed in this cause that he deserted her on September 2, 1923.

The appellee testified, without contradiction, to the following effect: We (Greenburg and herself) were on good terms when he left Norfolk and that morning he borrowed about $10 from me. "The last time I...