"Conclusions of Fact.
"I find that about the 6th day of April, 1869, the mother of the plaintiffs, Nancy Mitchell, then a schoolgirl in Montgomery county, Ala., between 12 and 13 years of age, ran away from her father's home at night without his knowledge or consent, with one Hale Windham, and that they traveled through the country a distance of some 25 miles, to the city of Montgomery, where a marriage ceremony was performed between them about 10 o'clock in the morning of April 7, 1869, and that she lived with said Hale Windham as his wife for two or three days, the evidence being uncertain as to whether it was two or three days, and that on the Saturday following said marriage she returned to her father's house and never again lived with said Hale Windham, nor did he ever in any way make any effort to recover her or solicit her to live with him again, so far as is shown by the evidence.
"(2) I find that after Nancy Mitchell returned to her father's house that she never again lived with said Hale Windham as his wife or otherwise, and that she was sent to school at La Grange, in the state of Georgia, and that at some time in 1872 she was married in the state of Georgia to Sam D. Rudder, one of the defendants in this case; that after said marriage said Rudder, with said Nancy, returned to the state of Alabama, where they lived for several months, and then came to Texas; and that they settled in Milam county, Tex., some time about 1873 or 1874, possibly as late as 1875; and that from the time of said marriage the said Nancy lived with said Sam D. Rudder as his wife and that she was known as his wife, and that he introduced her as his wife and at all times recognized her as his wife, and in good faith believed that she was his lawful wife, and that said Nancy lived with him as his wife until the time of her death, on September 9, 1887, and that during the time that she lived with Sam D. Rudder she was a good and faithful wife to him, and was a good woman and must have married him in good faith, and that she bore him nine children, three of whom died before her death, and one after, and that the remaining children are the plaintiffs in this case.
"(3) I further find that at the time the said Nancy was living with the same S. D. Rudder as his wife that she never expressed any apprehension or had any misgivings that she was not his lawful wife, and that said
S. D. Rudder had no reason to believe that she was not his lawful wife, and really did believe that she was his lawful wife, and that they were always known as husband and wife, and there was no question otherwise, at least in Texas, till after this suit was filed.
"(4) I further find that on the 27th day of October, 1884, the said S. D. Rudder and Nancy, his wife, acquired by their joint efforts a tract of land described in plaintiffs' petition the same being 76¼ acres out of the Punchard league in Milam county, and that the said land was the community property of said S. D. Rudder and his wife, the mother of plaintiffs.
"(5) I find that while Sam D. Rudder and said Nancy were living together in Milam county, Tex., on December 2, 1876, a divorce was granted by the chancery court of Montgomery county, Ala., to said Hale Windham, in which the marriage between said Hale Windham and said Nancy Windham was dissolved, but there is no evidence as to the time when that suit was instituted, but I gather from the facts that it was some time within a year or about a year before the date of the decree, which decree was introduced in evidence. That from the testimony of the witness T. N. Cox I conclude that said decree prohibited the said Nancy from marrying again, or the testimony seems to indicate such fact; but in this connection I find that for three years prior to the date of said decree said Nancy had become a resident citizen of the state of Texas, and there is no evidence that she appeared in said divorce proceedings, or was personally served with process out of said court, and that the evidence shows that she was not within the state of Alabama from 1873 to 1882.
"(6) I find that after the death of said Nancy the said S. D. Rudder filed in this court his application to be appointed community administrator of the community estate of himself and said Nancy, and that by the appraisement returned and approved in said cause he inventoried the property hereinbefore mentioned as belonging to said community estate, and that in accordance with his application he was duly appointed administrator of the community estate of himself and said Nancy, and that he executed a bond in due conformity with law, in the sum of $1,000, conditioned as required by law, and took charge of said property by virtue of said administration proceedings, and that afterwards on the 14th day of October, 1887, he duly sold said tract of land to one W. A. Wingo for $1,000 cash, which was then and there on said day paid to him, and that by virtue of said administration proceeding the said W. A. Wingo secured a good and valid title to said land, and that said S. D. Rudder then and there became liable to his said children for one-half of the proceeds arising from the sale of said land.
"(7) I find that the bond was duly conditioned as required by law in such proceedings, and that it was executed by the said S. D. Rudder as principal, H. F. Iglehart, J. F. Wingo, and W. J. Brewer, the defendants herein, as his sureties, together with said W. A. Wingo, the party to whom he sold said land, and that said W. A. Wingo died in Milam county, Tex., some six years ago, insolvent.
"(8) I further find that at the time of the death of said Nancy she left surviving her six children, the fruits of said marriage with said Rudder, and that one named Willie died after his mother's death at the age of about 14 years, and that by virtue of his death said S. D. Rudder inherited one-half of his interest in said estate, and the plaintiffs herein inherited the other half.
"(9) I find further that neither of the defendants ever at any time in any manner before this suit denied their liability to the plaintiffs, or in any manner ever repudiated the trust of said Rudder; and that no one of the plaintiffs has ever been paid anything on account of their mother's said estate.
"(10) I find the plaintiffs are entitled to recover five-sixths of $500, or $458.34, with interest from October 14, 1887, to April 11, 1892, at the rate of 8 per cent. per annum, and from said date to the present time at the rate of 6 per cent. per annum, aggregating more than $1,000, but as plaintiffs have sued for only such sum, and as the bond is only in such sum, this amount will limit the amount of recovery.
"Conclusions of Law.
"Any contract, undertaking, or ceremony between a man and woman, matrimonial in form, should be presumed to be legal until the contrary appears, and the fact that the said Nancy was only about 13 years of age at the time of her reputed marriage to said Hale Windham, I conclude that she had no power to make a marriage contract or enter into a marriage relation at the time of said reputed marriage to said Windham, and the fact that he never made any effort to recover possession of his reputed wife, or any overtures to her to return to him, leads to the conclusion that both parties knew that such marriage was unlawful and was not binding upon the said Nancy. But if the foregoing be not correct, then as about three years elapsed from the time of said reputed marriage to said Hale Windham before the marriage in Georgia, and as the presumption of innocence follows the said Nancy, the presumption of the legality of the marriage to said Sam Rudder ought to raise the presumption that in the interval of time after she left said Hale Windham before she married said Rudder she obtained a divorce from said Windham, and had the authority to contract a legal marriage with said defendant Rudder in Georgia when she was married in 1872.
"I further conclude that as the said Hale
Windham secured a divorce in the chancery court of Alabama on December 2, 1876, the bonds of matrimony were dissolved between the said Nancy and the said Hale Windham by such decree; yet it is contended that said decree was insufficient to show the freedom of said Nancy to marry, or that said court never acquired jurisdiction of her person, and that, under the full faith and credit clause of the Constitution of the United States, the said judgment is not entitled to full faith and credit in the courts of Texas, but the defendants having introduced said judgment over the objection of the plaintiffs, they would be bound by its recitals, and that for the purposes of this suit it ought to be held under the circumstances that said decree did dissolve the bonds of matrimony between said Windham and said Nancy.
"Even if it be admitted, as contended by defendants, that the evidence is sufficient to show that under the decree of the Alabama court the mother of the plaintiffs was denied the right to marry again, it seems clear beyond any controversy that such...
