White v. White

• Citation: 142 So. 524,225 Ala. 155
• Decision Date: 09 June 1932
• Docket Number: 6 Div. 152.
• Parties: WHITE v. WHITE.
• Court: Supreme Court of Alabama

142 So. 524

225 Ala. 155

WHITE v. WHITE.

6 Div. 152.

Supreme Court of Alabama

June 9, 1932

Appeal from Circuit Court, Tuscaloosa County; Henry B. Foster Judge.

Bill in equity by William Henry White, alias Sanders, against Bessie White, as administratrix of the estate of Ples White deceased, and individually. From a decree dismissing the bill, complainant appeals.

Affirmed.

R. C Price, of Tuscaloosa, and Locke & Moore, of Centerville, for appellant.

H. A. &amp D. K. Jones, of Tuscaloosa, for appellee.

KNIGHT J.

From the bill in this cause it is made to appear that Ples (sic.) White, late an inhabitant of Tuscaloosa county, died on or about the 1st day of February, 1930, intestate, and seized and possessed of an estate in value upward of $50,000. With the exception of a homestead, which, after the death of said White, had been set aside as exempt to the widow, the estate consisted wholly of personal property-money, stocks, bonds, and notes and mortgages. The deceased left surviving him no children, nor any descendants of any predeceased child, unless the complainant is held to be a child by a common-law marriage between the said Ples (sic.) White and one Della Lou Sanders. The respondent is the admitted widow of the decedent, and will take his entire estate unless the complainant is a legitimate child. The respondent is the administratrix of the estate of Ples White, by appointment of the probate court of Tuscaloosa county, in which court the administration was pending at the time of the filing of the bill in this cause.

Complainant, William Henry White, filed this bill, setting up that he is a son of Ples White, deceased, by a former marriage between the said Ples White and Della Lou Sanders. It appears that complainant's mother died in the year 1907, and that complainant, at the time of the death of his mother, was about four years of age. It is also made to appear that the respondent, Bessie White, and the said Ples White intermarried in Bibb county, Ala., on November 2, 1929.

The bill prays: (1) That the administration of the estate of Ples White, deceased, be removed from the probate court to the circuit court, in equity; (2) that the respondent, Bessie White, he required to furnish sufficient bond to protect the estate in the administration thereof by her, and to require her, as such administratrix, to file in said court a full and complete inventory of the assets of the estate; and (3) "and complainant further prays that your honor will ascertain and determine the rights of complainant as next of kin and heir at law of the said Ples White, deceased, and that your honor will make such orders and render such decrees as may be meet and proper in the premises"; and for general relief. The real purpose of the bill is to have the court to ascertain and adjudge that the marriage of the said Ples White and Della Lou Sanders was valid, and that the complainant was and is a legitimate son of said Ples White by the said Della Lou Sanders, and therefore an heir at law of said decedent.

Upon the filing of this bill, the court made and entered thereon an order removing the administration of said estate from the probate court of Tuscaloosa county to the circuit court.

On final submission of the cause, the court held that the complainant was not a legitimate son, or lawful heir, of Ples White, deceased, and was not entitled to the relief prayed for, and was not entitled to share in the distribution of the estate of the said decedent; and dismissed complainant's bill of complaint. From this decree, the complainant prosecutes the present appeal.

While numerous errors (371) are assigned upon the record, only the one presenting the propriety of the decree adjudging that complainant is not a legitimate son, and heir at law, of said Ples White need be considered.

Confessedly, if complainant is the son of Ples White, by Della Lou Sanders, he is such son by a common-law marriage, for there is not one scintilla of evidence in the record, which tends in the slightest degree to show that there ever was a ceremonial marriage solemnized between them. What formalities are required to constitute a common-law marriage have had the attention of this court in many adjudged cases found in our published volumes. No particular words are necessary. To constitute such a marriage it is only necessary that there should be a mutual consent between the parties to be husband and wife, followed by cohabitation and living together as man and wife, and upon the establishment of such relation there is a lawful marriage, in this state, without regard to what the parties consider the legal effect of such relation to be. McClurkin v. McClurkin, 206 Ala. 513, 90 So. 917; Herd v. Herd, 194 Ala. 613, 69 So. 885, L. R. A. 1916B, 1243; Farley v. Farley, 94 Ala. 501, 10 So. 646, 33 Am. St. Rep. 141; Beggs v. State, 55 Ala. 108.

And the necessary requisites of a valid common-law marriage is thus stated in 26 Cyc. pages 836, 837: "To constitute a marriage good and valid at common-law-that is, in the absence of a...