Watson v. Watson

• Decision Date: 10 April 1934
• Docket Number: 13827.
• Citation: 174 S.E. 33,172 S.C. 362
• Parties: WATSON et al. v. WATSON et al. TERRELL et al. v. WATSON.
• Court: South Carolina Supreme Court

174 S.E. 33

172 S.C. 362

WATSON et al. v. WATSON et al.

TERRELL et al. v. WATSON.

No. 13827.

Supreme Court of South Carolina

April 10, 1934

Appeal from Common Pleas Circuit Court of Chesterfield County; E. C Dennis, Judge.

Suit by Tyler B. Watson and others, as executors of the last will and testament of J. A. Watson, deceased, against Carl Watson and others, and action by Annie W. Terrell and others against Lougenia Watson, consolidated and heard together. From an adverse order, plaintiffs appeal.

Affirmed.

Report of J. E. Leppard, master, follows:

These two cases were agreed to be consolidated and heard together on the question of the dower of Mrs. Lougenia Watson.

The first case above is one to marshal the assets of the estate of James A. Watson, deceased, and the second one was brought to require the defendant, Lougenia Watson, to make her election between the provision made for her in the will of the said J. A. Watson, and her right to dower, if any, and to remove the cloud from the title of the real estate caused therein by the question of dower.

The testator, James A. Watson, was about sixty-eight years old when he met the defendant, Lougenia Watson. He had been married to Mrs. Ada Rivers Watson, they had separated under an agreement whereby she did bind herself not to claim dower in any of the real estate of the said J. A Watson or any other interest in his estate in consideration of the sum of $15,000 to her in hand paid, and up to this time she has claimed no rights whatsoever as the widow of James A. Watson. Mr. Watson had gone to Nevada to procure a divorce under the laws of Nevada from Mrs. Ada Rivers Watson serving her by publication and also by actual service in South Carolina by the sheriff of Chesterfield county. After obtaining his decree he came back to South Carolina, and through the medium of a friend he was introduced to Mrs Lougenia Hathcock at Oakboro, N. C., where he speedily stated his desire to procure her to become his wife. She hesitated and inquired how long his former wife had been dead, and he told her that he had a wife living, but that he had a valid divorce and was free to marry whomsoever he wanted to. He also told Mr. and Mrs. Hathcock, relatives of the defendant, Mrs. Lougenia Watson, the same thing, that he was free to marry and had a valid divorce from his former wife. After considerable pressure and due deliberation, Mrs. Lougenia Hathcock agreed to marry Mr. Watson, and they duly married in Albemarle, N. C., the county seat of the county in which she lived, on the 13th day of July, 1923. He first met her on the fourth Sunday in April of that year. Mrs. Watson said that the delay in marrying him was caused because "she needed a little time to study over it-breaking up my home." After she married him she broke up her home and came to live with Mr. Watson and took care of him nearly five years, he having died on the 23d of March, 1928. It turned out that Mr. Watson was in very bad health, suffering with heart attacks constantly, and that she was engaged practically from the wedding day in nursing and caring for him in his more or less enfeebled condition, which was progressive, and the evidence is that she was a faithful and attentive wife in every respect, and so recognized by his children. He recognized her in his will as his wife, in making conveyances of land he procured her to execute her dower on same, so that he was himself thoroughly satisfied that he had contracted a legal marriage, and he had impressed her with that fact and induced her on these representations to become his wife, to break up her home in North Carolina, and to render him that dutiful and tender care which a wife owes to her husband.

The children are now contesting her right of dower; she has asked to take dower instead of the life estate left her by Mr. Watson in his will.

Mr. Watson conveyed a tract of land upon which he lived consisting of three tracts, set out in the answer of the defendant, to Annie W. Terrell, Lila Little, and Tyler B. Watson in trust for himself during his lifetime, and after his death to his son, Earle L. Watson. This conveyance was made during coverture, to wit, July 29, 1924, and recorded March 28, 1928, Book 74, page 108, and Mrs. Watson did not relinquish dower on that deed. Hence, if entitled to dower, she is entitled to dower in those tracts of land as well as those of which the testator died seized, and she sets up the same in her answer with all the parties before the court, and the whole question now to be determined.

This case has two questions only: The first question arises as to whether Mrs. Ada Rivers Watson can claim a dower in the lands of James A. Watson when it is admitted that she was his wife prior to the time that the demandant in this case married Mr. Watson, and that the divorce of Mr. Watson was obtained without her being brought personally into the jurisdiction of the court. She executed a release and a contract to release Mr. Watson's lands from any right of dower for a valuable consideration, to wit, $15,000, and according to the contention of Mrs. Lougenia Watson is completely estopped.

There have been decisions subsequent to 1882 when the right of a married woman to contract was limited by an amendment inserted in the General Statutes holding that such contract did not estop the woman from asserting her right of dower, but the Constitution of 1895, art. 17, § 9, again gave complete power to a married woman in the following language: "She shall have the power to contract and be contracted with in the same manner as if she were unmarried."

Prior to the Act of 1882, when she was endowed with all the powers of a feme sole, the case of Smith v. Oglesby, 33 S.C. 194, 11 S.E. 687, decided that question. The widow having contracted while her husband was alive not to claim dower, and to relinquish dower if called upon, it was held that she was estopped, although she had never relinquished dower. The court says at page 197 of 33 S. C., 11 S.E. 687, 688, as follows: "It must be remembered that at the time of its execution, under the act of the general assembly then in force, she was legally a feme sole as to the power of contracting, and being contracted with. She had this power without limit, except such as applied to all other persons. Such being the fact, we cannot see why she could not make at that time a binding contract to release her claim for dower as well as a contract with reference to any other matter. If she had this power, she certainly exercised it, and that, too, in a formal manner, in writing, and for a valuable consideration in money, which was paid. We must think that this contract, made and executed in this manner, was a binding contract, and, while not conveying the dower to the defendant in the manner required by the act in such cases made and provided, yet should estop Mrs. Smith from now claiming it."

This effectually disposes of that provision as the Constitution of 1895 gives the married woman exactly the same liberty of contract as the act of 1870 gave to the married woman under which the contract herein construed was executed, so that there is no danger of two dowers being successfully claimed against this estate.

The second question is whether Mrs. Watson or the heirs of J. A. Watson will be heard to assail the record of divorce which was obtained in the courts of Nevada. Mr. Watson induced the demandant to marry him on the assertion that he was legally divorced, and had a legal right to marry; that having been done can he repudiate merely for a property right the marriage of his wife as being without authority, and repudiate the judgment as being a nullity? I cite the case of Scheper v. Scheper, 125 S.C. 105, 118 S.E. 178, where a husband had procured a divorce which he was now endeavoring to repudiate in order to obtain a part of the estate of his wife whom he had divorced, and it was held that he could not dispute the validity of the judgment which he had procured. I cite the case at pages 105, 107 and 109 of 125 S. C., 118 S.E. 178, 184:

"Appellant's counsel in argument state that a divorce was in fact procured by Tindall. While such a void judgment as a general rule neither binds nor bars any one, yet a party who procures such a judgment to be

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