Watson v. Watson
| Decision Date | 11 January 1937 |
| Docket Number | 32494 |
| Citation | 171 So. 701,177 Miss. 767 |
| Court | Mississippi Supreme Court |
| Parties | WATSON et al. v. WATSON et al |
Suggestion Of Error Overruled, February 22, 1937.
APPEAL from the chancery court of Claiborne county HON. R. W CUTRER, Chancellor.
Suit by Henry Watson and others against Kattie Watson and another. From an adverse decree, plaintiffs appeal. Reversed and remanded.
Reversed and remanded.
M. M. Satterfield, of Port Gibson, and Alexander & Satterfield, of Jackson, for appellants.
No divorce was ever obtained by either Tom Smith or Kattie Smith.
Complete absence of good faith on the part of Kattie Brown Smith Sheppard Watson is shown by the evidence.
Kattie Brown Smith, alias Watson, has no equitable right to the property involved.
Certificates of chancery clerks were proper proof of no divorce.
Section 1566, Code of 1930; Tigner v. McGehee, 60 Miss. 185; Thompson v. Clay, 120 Miss. 190, 82 So. 1.
Under the evidence in this case no presumption of death can be invoked in favor of Kattie Brown Smith.
The evidence as established without dispute that Tom Smith was never beyond the sea or absent from the state and never concealed himself in the state. In fact, the testimony by four witnesses through their depositions, and by Tom Smith personally, was undisputed that he never attempted to conceal himself in any way whatsoever and was never absent from the state.
In this case the direct testimony is that Kattie Brown Smith made no inquiry whatsoever of the mutual relatives who were at all times available to her. In the absence of such inquiry this section cannot be invoked.
11 C. J. 1171, 1172; Manley v. Pattison, 73 Miss. 417.
This rule of the presumption of death is simply a presumption which disappears when the contrary is proved by direct evidence.
Parker v. New York Life Ins. Co., 107 So. 198; A. & V. R. R. Co. v. Beardsley, 79 Miss. 422, 30 So. 660; White v. Weitz, 152 So. 484.
The affirmative evidence in this case overthrows the presumption of divorce, and there is no testimony that a divorce was granted.
Colored Knights of Pythias v. Tucker, 92 Miss. 501, 46 So. 51; Pigford v. Ladner, 138 Miss. 461, 103 So. 218, 142 Miss. 435, 107 So. 658, 147 Miss. 822, 112 So. 785; McAllum v. Spinks, 129 Miss. 237, 91 So. 694; Rice v. Building & Loan Assn., 145 Miss. 1, 110 So. 851; Sullivan v. Grand Lodge of Knights of Pythias, 52 So. 361, 97 Miss. 218; Thompson v. Clay, 120 Miss. 190, 82 So. 1.
J. T. Drake, of Port Gibson, for appellants.
While the burden is on us to prove no divorce, still we wish to call the court's attention to the fact that if there has been a divorce Kattie would certainly have known it and would have been in a position to set this question at rest beyond question, either by copies of a decree of divorce or otherwise.
Section 1417, Code of 1930; Thompson v. Clay, 120 Miss. 190.
It is uncontradicted that there was no divorce, and this is proved positively by uncontradicted testimony and evidence, outside of Tom Smith's evidence, which corroborates.
Tom Smith did not remain beyond the sea; he did not absent himself from this state at all, and the only point urged is that he concealed himself in this state, and the only thing urged by attorneys for Kattie in support of the alleged concealment is that Kattie had not heard from him, and that she was the most natural person for him to have made himself known to. They lose sight of the fact that the records of Warren county show that prior to the expiration of his sentence she had contracted a bigamous marriage with one Jeff Shepherd and was living with him as his wife at the time that Tom's sentence expired. It is incredible, even in the absence of any evidence whatever, that he should not have known of this.
The question comes up as to what the word "conceal" means;, we are not at loss for authorities. Webster says it means "to hide;" "to keep close or secret;" "to hide, to withdraw from observation."
Tom did none of these. He pursued the usual life of a tenant farmer; married and raised children; kept in touch with his sister and brother, and the only thing that they can argue in support of the concealment idea is that he did not communicate with a faithless wife, who he knew to be faithless. The facts do not fit the statute and the statute does not apply.
12 C. J., 371, 372; Section 1537, Code of 1930; 17 C. J., 1170, 1171, 1172, sections 11 and 12.
He was not concealing himself and before this presumption could be indulged, there must be evidence of diligent inquiry among those who would naturally know of his whereabouts, in this case his relatives, of whom his sister would have been the one who would be in touch with both parties.
2 Greenleaf on Evidence, 278f; Policeman's, etc., Assn. v. Ryce, 104 A. S. R. 190, 213 Ill. 9, 72 N.E. 764; Miller v. W. O. W., 28 L.R.A. (N.S.) 178; Modern Woodmen v. Gordon, 2 L.R.A. (N.S.), 809.
Anderson & Weil, of Port Gibson, for appellees.
Where the record does not contain express findings of all material facts involved in the case, it will be presumed, on appeal, that the lower court found in favor of the prevailing party, all the facts necessary for the support of the judgment.
Evidence supports finding that Kattie acted in good faith.
The court had ample evidence upon which to predicate a finding that Tom Smith never did return to Bovina, and did not see Kattie Watson at the time, so that the contention of appellants that Tom did not communicate with Kattie, during all those years, because he saw her living in adultery with Jeff Shepherd would naturally fail.
Appellants contend that Kattie's marriage to Jeff Shepherd within two years after Tom Smith was sent to the penitentiary is evidence of her bad faith in twenty-seven years later contracting her third marriage with Paul Watson. We cannot see how the marriage to Jeff Shepherd can have all bearing on the validity of the subsequent marriage to Paul. The marriage to Jeff Shepherd was evidently invalid, but how can it bear upon a marriage contracted twenty-seven years later and at a time when twelve years had passed since she was reliably informed of Tom Smith's death, and when it is shown that she in good faith believed Tom to be dead and obtained a valid divorce from Jeff Shepherd before contracting said marriage to Paul Watson.
Strong presumptions arise upon proof of ceremonious marriage.
Ladner v. Pigford, 147 Miss. 822, 103 So. 218; Colored Knights of Pythias v. Tucker, 92 Miss. 501.
These presumptions are, of course, not conclusive and may be rebutted, but the question as to whether or not the evidence was sufficient to rebut them was a question of fact for the chancellor who found that said presumptions were not sufficiently rebutted. The presumption with which we are chiefly concerned in the case at bar is the presumption of death.
It was shown below to the satisfaction of the chancellor that up until the time this suit was filed, Kattie had not seen or heard of Tom Smith for forty years and more. She had been reliably informed that Tom Smith was dead fully twelve years before she married Paul Watson. Thus the period of seven years absence, which, according to our statute, gives rise to the presumption of death had run almost four times over at the time of said marriage to Paul Watson and said presumption had been considerably strengthened by the report of his death.
Where a husband has absented himself from his wife for seven years without being heard of, his wife, having had reliable reports of his death and in good faith believing him to be dead, may rely on the presumption of death and contract a second valid marriage, which marriage will continue to be valid even though it later appear that the first husband was not, in fact, dead.
Essick v. Essick, 167 So. 420; Ladner v. Pigford, 147 Miss. 822, 103 So. 218; Harper v. Fears, 168 Miss. 505, 151 So. 745.
The equity of appellee's case supports contentions.
Argued orally by J. C. Satterfield and J. T. Drake, for appellant, and by Karl Weil and R. B. Anderson, for appellee.
On November 6, 1934, Paul Watson died intestate leaving no children or grandchildren surviving him, and on the eighth day thereof, a petition was filed in the court below by Kattie Watson and L. S. Pearson, alleging that Kattie was the widow of Paul Watson, and praying that Pearson be appointed as administrator of his estate, Pearson was so appointed, qualified and proceeded with the administration of the estate.
In April, 1935, Henry Watson and several others filed a petition alleging that Kattie was not the widow of Watson; that although a marriage ceremony had been performed between them, she did not become his wife for the reason that she then had a living husband from whom she was not divorced; that petitioners are, Watson's next of kin, and praying that petitioners be decreed to be the true and only heirs of Paul Watson, and that Kattie be directed to return any portion of the estate that had been delivered to her by the administrator, and that the administrator "be required to distribute the entire estate, less the costs of administration" and any debts due by Watson." to your petitioners."
There was some further pleading which resulted in an issue being presented as to the validity, vel non, of Kattie's marriage to Paul Watson, and the court below held this marriage to be valid and decreed accordingly. Kattie died after the decree was rendered, but her administrator has been made a party hereto.
The undisputed facts are that prior to 1894,...
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