Thompson v. Thompson

• Citation: 8 So. 419,91 Ala. 591
• Parties: THOMPSON ET AL. v. THOMPSON ET AL.
• Decision Date: 27 November 1890
• Court: Alabama Supreme Court

8 So. 419

91 Ala. 591

THOMPSON ET AL. v. THOMPSON ET AL.

Supreme Court of Alabama

November 27, 1890

Appeal from probate court, Marion county; WALTER H. MATTHEWS, Judge.

This was a contest proceeding instituted by the appellants against the appellees, and sought to set aside an allotment for a homestead exemption, and exemption of personal property to them as the widow and minor children of Allen Thompson deceased. The contest was on the ground (1) that the claim of exemptions was filed within 20 days after the grant of letters of administration on the estate of Allen Thompson deceased; (2) that the claim for exemption of personal property was not sworn to before any officer authorized to administer such oath; (3) that the petition shows that the decedent died possessed of a homestead containing more than 160 acres; and (4) because no commissions were issued to the commissioners who set apart the exemptions. The respondents to this petition demurred to the first, second, and third grounds, and the court sustained their demurrers, to which ruling the contestants duly excepted. All the other facts are sufficiently set forth in the opinion of this court. On the final hearing of the contest, the court decreed that the said Roanna Thompson and her children were entitled to the exemptions claimed, and the contestants duly excepted to this decree; and now appeal, and assign the various rulings of the lower court as error.

Thos. B. Nesmith and Watts & Son, for appellants.

W H. Key, for appellees.

COLEMAN J.

The important question in this case is to determine whether Gracy Thompson or Roanna Thompson was the lawful wife of Allen Thompson at the time of his death. In the year 1838 Allen Thompson married Gracy Thompson, with whom he lived as his wife until some time in the year 1848 or 1849, during which time Robert L. Thompson, and other contestants, were born and are their legitimate children. In 1852 or 1853, Allen Thompson, in Marion county, Ala., married Roanna Thompson, "according to the forms of law," with whom he lived as such until his death, which occurred in said county, November 10, 1887. In the state of Arkansas, at the November term, in the Jackson county court of said state, on the chancery side on the 21st day of November, 1851, of said term, a decree was rendered in favor of Allen Thompson against Gracy Thompson, divorcing him from the said Gracy Thompson, and restoring him "to the rights of an unmarried man." The validity of this decree is assailed. The entire record and proceedings of the court granting the divorce were read in evidence, and "then, by agreement and consent of both parties, contestants read the following evidence." Here follows the facts as stated by the court in the case of Thompson v. State, on pages 14 and 15, 28 Ala. We hold this agreement consents and admits the facts as there stated shall be considered as legal evidence in the present case, and are included in the words: "Upon this evidence the court overruled the objections of contestants, and decreed the homestead and personal property to Roanna Thompson and her minor children." Jurisdiction over the question of divorce must be allowed to the courts of the domicile, and if the husband acquires a new domicile, as a consequence, he must acquire the right of having his matrimonial Status determined by the laws and judicial tribunals of his new domicile. The right of a court, when authorized by the statute of the state, to proceed against a non-resident defendant by publication, results necessarily from the existence of the jurisdiction, and a denial of the power to thus proceed would be fatal to the jurisdiction. Thompson v. State, 28 Ala. 20. A divorce thus obtained in the absence of fraud or...