Tarleton v. Thompson

• Decision Date: 18 July 1923
• Docket Number: 11175.
• Citation: 118 S.E. 421,125 S.C. 182
• Parties: TARLETON ET AL. v. THOMPSON. IN RE CROWLEY'S ESTATE.
• Court: South Carolina Supreme Court

118 S.E. 421

125 S.C. 182

TARLETON ET AL. v. THOMPSON.

IN RE CROWLEY'S ESTATE.

No. 11175.

Supreme Court of South Carolina

July 18, 1923

Appeal from Common Pleas Circuit Court of Darlington County; S.W. G Shipp, Judge.

In the matter of the estate of L. A. Crowley. Petition by Barzilla Tarleton and others for a homestead exemption out of the personal estate, opposed by John Thompson. From the decree rendered, John Thompson appeals. Modified.

The decree of Circuit Judge Shipp referred to in the opinion follows:

This case comes before me on exceptions to the report of the probate judge acting as master. The petitioners, claiming to be the widow and children of L. A. Crowley deceased, filed their petition for a homestead exemption out of the personal estate of the said Crowley. The application was resisted by the respondent, John Thompson, on the grounds, briefly, that at the time of his death L. A. Crowley was not the head of a family in this state; that there was no marriage between the said Crowley and Barzilla Crowley Tarleton; that Crowley was incapable of sexual intercourse and had been for many years, and could not beget children and that the petitioners herein claiming to be the children of L. A. Crowley were illegitimate. The probate judge, acting as master, to whom the case was referred, filed a report which is in the record here, in which he found for the respondent, John Thompson, on all of the issues raised. The petitioners excepted to this report on seven grounds, but, as there are really only three principal questions raised or involved here, there is no need of setting out and considering all of the exceptions.

In his report the probate judge makes no direct or positive ruling as to whether or not there was a valid marriage, but I will take up that question first. The presumption is in favor of the marriage, and I find that it is clearly established by the testimony. In addition to the testimony of Barzilla Crowley Tarleton, one of the other witnesses who testified in this case was present at the marriage ceremony. There is other evidence which bears this out, and I find that the probate judge was in error in not holding that there was a valid legal marriage between L. A. Crowley and Barzilla Crowley Tarleton.

The next question to be considered is as to whether the probate judge erred in holding that the children were illegitimate. Having found that there was a legal marriage, the presumption is that the children born in wedlock are legitimate, and it has been held in this state that this presumption can only be overcome by positive proof of incapacity. Pooler v. Smith, 73 S.C. 102, 52 S.E. 967. It is undisputed that about 20 years ago, after his marriage, L. A. Crowley was operated upon, and a part of his penis removed, and it is contended by the respondent that this operation rendered Crowley incapable of sexual intercourse, and that he could not thereafter beget children. There is the testimony of Dr. Powe, standing alone, to the effect that he had treated Crowley, and that the latter's penis was cut off almost even with his stomach; that erection would lengthen it little, if any; that metal sounds had to be inserted in order for him to urinate; that Crowley was incapable of sexual intercourse, and could not beget children. In view of the other testimony in this case, all that I can say of this is that it is the opinion of Dr. Powe.

As against Dr. Powe's testimony there is the testimony of Dr. Howle, who performed the operation on Crowley, and had treated him afterwards, to the effect that the end of the penis was cut off just behind the head, and that less than half of the penis was removed; that Crowley could have sexual intercourse, and could beget children. Besides the testimony of Dr. Howle, Mrs. Crowley (now Tarleton) says that Crowley was the father of her children. Another witness

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