Estes v. Merrill

• Decision Date: 13 December 1915
• Docket Number: 51
• Citation: 181 S.W. 136,121 Ark. 361
• Parties: ESTES v. MERRILL
• Court: Arkansas Supreme Court

181 S.W. 136

121 Ark. 361

ESTES v. MERRILL

No. 51

Supreme Court of Arkansas

December 13, 1915

Appeal from Garland Chancery Court; Jethro P. Henderson, Chancellor reversed.

STATEMENT BY THE COURT.

Elizabeth Merrill brought this suit for the widow's interest and dower in the estate of John D. Condon, deceased.

The complaint alleges that she was married to said John D. Condon in 1878, in Columbus, Ohio, and that he died on the first day of September, 1910, leaving no children or other descendants or heirs or next of kin; and the owner of certain described lands in Hot Springs, Arkansas, and that he had been the owner and seized and possessed of the certain other lands and had conveyed them to the different defendants claiming to own them, without her having joined in the conveyances and relinquished her dower interest in the lands.

Separate answers were filed denying that appellee was the widow of John D. Condon, deceased, and entitled to any interest in his estate as such and all the other allegations of the complaint.

It was also alleged that said deceased was divorced from the plaintiff before the conveyance of the said land and that in the year 1891 she had intermarried with one Merrill, with whom she continued to live and cohabit as husband and wife and by whom she had four children, two of whom were adults and that she was at the time of the transfer of said property by the said John D. Condon, the wife of the said Merrill and has no right, title or interest to the widow's share, or in any other manner, to any of the property of which the said John D. Condon died seized and possessed, or which he may have sold during his life time subsequent to the time of obtaining said decree of divorce, and that said deceased in clearing up the title to certain of his property sold in the city of Hot Springs, had made affidavits that he was a single and unmarried man and his conveyances of all the property in controversy recited such fact.

There were also allegations setting up fraud and estoppel as defenses to the suit.

The testimony shows that Elizabeth Merrill, nee Sharp, was married to John D. Condon in Columbus, Ohio, in 1878; that they went to Hamilton, Ohio and lived there about 11 months and then went to Lexington, Ky., where they lived about two years. Condon went from there to the west and she returned to Columbus, Ohio, and never afterwards lived with him as his wife. Two children were born of this marriage; one died in infancy and the girl was killed in a railroad accident in 1903, never having married and without children.

Condon came to Hot Springs, Arkansas, where he acquired and conveyed the lands in controversy and was reputed to be a single and unmarried man and his conveyances of the property recited that such was the fact.

Some of the witnesses testified that he went back to Columbus, Ohio in February or March, in '90 or '91 and after returning seemed greatly elated over the fact that a divorce had been obtained and stated that "he was a free man and straight." The witnesses stated that he said his wife had married or could marry again any time she wanted to.

A witness in the abstract business introduced in evidence the affidavit of J. D. Condon, reciting that he was a citizen of Hot Springs, Arkansas, on the 24th day of March, 1903, when he executed a deed, conveying certain lots, designating them and "I signed and acknowledged this deed on March 24 1903, and was at that time an unmarried man."

The appellee testified to the fact of the marriage and separation as already stated, giving no reason for the parting, and that Condon died September 2, 1910, at Waukesha, Wis. That she saw him twice after the separation in Lexington, Ky., first, four or five years thereafter in Columbus, Ohio, and that he was there again in January following June 7, 1903, when their daughter Mattie was killed.

There were copies of two letters which purported to have been written, one by his physician for, but not claimed to have been signed by him, and the other by him to appellee, relative to the disposition of some of his estate and containing (the one by the physician) the statement "no matter what happens, you are still my wife as I never got divorced and never married again, and what I have is yours by law and I want you and the children to have it." The copy of the letter which she stated was signed by J. D. Condon, recited that he had sent by express two diamond rings and $ 35, five for each of her girls and $ 25 for herself. The letter purporting to be written by his physician was dated August 17, 1910, the other was not dated, but she stated the latter part of August she received the express package with the rings and money.

Both the letters were addressed to Mrs. Elizabeth Merrill, and signed "Yours very truly," and "Truly yours," with no other indication of the relationship of the parties except as already quoted. Upon being asked whether or not she had obtained a divorce from John D. Condon, she answered, "Well, I thought I did." She stated that she went to Lexington, Kentucky after they had been separated for about three years to get a divorce, having been told that she could get it there; went to a lawyer's office, whose name she did not remember and applied for a divorce, telling him she wanted it on the ground of wilful absence. That he told her she would have to pay $ 10 down and he would see that she got a divorce. That she paid the $ 10 and he drew up some kind of paper that she signed in his office and which was not returned to her, and further as follows:

"Q. After you signed that paper what next did you do?

A. Well, I just waited. He told me he would have to advertise and I just waited. He told me to come in a certain day.

Q. Well, did you go in on that certain day?

A. Yes.

Q. When you went in that day, who was in his office?

A. Some older man than him.

Q. And when you went into the office, what occurred then?

A. A young man just talked with the older man and the younger man turned to me and said "Miss Sharp, your divorce is granted, there was no objection." I do not think he gave me any certificate showing that I had a divorce, but he gave me a receipt for $ 25. During these divorce proceedings I was not in any court room, and was only in an office like this one. I was sworn. The men there made me raise my hand. I suppose it was a Notary Public, but I do not know, and do not know whether it was the first time or the last time that I was sworn. I gave no testimony. I made no other effort to procure a divorce."

On cross-examination she said that she first heard of Condon at Hot Springs after their separation and that she applied for a divorce about three years after she went back to Columbus and heard from him after applying for a divorce and that when he saw her he said he did not know that she applied for a divorce. And to the question "Did you ever tell him that you had gotten a divorce, answered, "I told him the last time I saw him. That was after Mattie was killed in 1903."

She assumed the marriage relation with Merrill in 1888 in Ohio and has lived continually with him as his wife ever since and had four children by him and they had a marriage ceremony pronounced after John Condon's death. She stated also that she was living with Merrill as his wife when Condon visited her at Columbus, and answered further as follows:

Q. Was it not a fact that John D. Condon knew of the relationship between you and Mr. Merrill?

A. Yes sir, he did.

Q. Did you not at that time tell J. D. Condon that you had obtained a divorce and that Mr. Merrill was your husband?

A. I did tell him but he said I did right to do as I did.

Q. You told him you had obtained a divorce, did you not?

A. I did.

She stated also that she did not apply for a divorce to enable her to marry Mr. Merrill and did not assume marital relations with him until in the fall of the year after she made application for the divorce.

The court found that the plaintiff was the wife of Condon at the time of the conveyances to certain of the defendants in which she did not join and that she was entitled to the widow's interest and dower and decreed accordingly and this appeal is prosecuted from the decree.

Decree reversed and cause remanded.

M. S. Cobb and A. J. Murphy, for appellant.

1. A common law marriage, in Ohio, to Merrill was established. 26 Cyc. 837; 12 Oh. St. 553.

2. In order to recover, appellee must show that no divorce was ever had from her first husband. She has failed. Every presumption is in favor of the validity of her marriage to Merrill. This presumption has not been overcome. She has utterly failed to prove that her marriage to Merrill was void. The burden was upon her and she has failed. 26 Cyc. 877; 96 Am. St. 322; 127 Ill. 379; 147 Ill. 215; 35 N.E. 526; 82 Ark. 76; 88 Id. 135; 25 Mo. 259; 55 Am. St. 883; 67 Ark. 278; Bish. Mar. & Div. §§ 956-7; 22 Ark. 89; 95 Ia. 611; 64 N.W. 790; 12 Am. St. 458-9, 453, 459...