62 So. 833 | Ala. | 1913
Lead Opinion
— The sole bone of contention in this case is, Who are the distributees of the estate of one Jim Bell, deceased, on account of whose wrongful death his administrator had received $1,000 for distribution as provided by the statute? The question was properly raised in the probate court, the evidence was there
The progenitors of these respective statutes were construed by this court in the case of Nooe's Ex’r v. Garner's Adm’r, 70 Ala. 448, which was a proceeding very similar to this, though the question of fact to be determined was different. The rules of evidence as to the weight and sufficiency of evidence to justify an affirmance, a reversal, or a rendition, on the respective appeal, were thus declared by this court:
“Our former decisions have declared three rules, from which we have no wish to depart:
“First. When a contest of fact, properly triable before a jury, is, by consent, submitted to the judge presiding for decision. In this class of cases, this court will not review the finding of the judge on the facts, any more than it would the finding of a jury. It is not assignable as error. — Etheridge v. Malempre, 18 Ala. 565; Barnes v. Mayor, 19 Ala. 707; Bott v. McCoy, 20 Ala. 578 [56 Am. Dec. 223]; De Vendell v. Hamilton, 27 Ala. 156. We have a recent statute which authorizes the submission of disputed questions of fact to the court*649 without a jury, but it does not affect this case. — Code of 1876, § 3029.
“Second. When the case is properly triable before the court, as in chancery causes, but is tried on testimony reduced to writing, not examined in the presence of the court. A finding thus rendered is presumed to be correct, and will not be reversed in this court, unless there is a decided preponderance of evidence against the conclusion he attained. — Rather v. Young, 56 Ala. 94; Bryan v. Hendrix, 57 Ala. 387.
“Third. When the law authorizes the disputed question to be tried, and it is tried, by the court without a jury, on testimony given viva voce in the presence of the court. In such cases the rule is not to reverse the finding, unless it is so manifestly against the evidence that a judge at nisi prius would set aside the verdict of a jury rendered on the same testimony.” — 70 Ala. 446, ,447.
After a careful examination of this record we are of the opinion that we should render a like judgment in this case to that rendered in Nooe’s Case, supra. We have reached the conclusion that the probate judge rendered the proper judgment on-'the original hearing, but that he should have awarded a new trial on the showing made by movants, and that the circuit judge should have reversed and remanded to the probate court for a new trial, instead of reversing and rendering, as he did. /'
The sole disputed question was and is whether or not appellant here, Cornelia Jackson, was ever legally married to the deceased, Jim Bell, or whether their marriage as freedman and freedwoman was ratified and confirmed by the ordinance of September 22, 1865, relative to this subject. If the evidence of Cornelia Jackson is true, there was a valid marriage between her and
It Avas said by this court in the case of Washington v. Washington, 69 Ala. 281, in passing upon a similar question, and which was the--first case construing the ordinance and declaring its effect f' --“As matter of fact, by universal usage, by the encouragement and consent of the master, the relation of husband and wife was formed between slaves, and often the marriage solemnized by the rites and ceremonies attending the\ solemnization of the marriage of their owners. The rniaral obligation i’esulting from the union the master efijjoined them to observe, and public sentiment so far resp&Sted the union that the master who wantonly separated husband and Avife provoked from his neighbors indignation and reproach. While, in the contemplation of law,
In the case of Woods v. Moten, 129 Ala. 228, 30 South. 324, it was said: “After emancipation, in order to ratify marriages between freedmen and freedwomen, and to legitimate the issue of such marriages or cohabitations, the convention of the people on the 29th of September, 1865, passed an ordinance declaring, among other things, that ‘in all cases of freedmen and freed-women, who are now living together recognizing each other as man and wife, be it ordained that the same are hereby declared to be man and wife, and bound by legal obligations of such relationship.’ ‘The issue of such marriage or cohabitation are hereby legitimatized, and shall be held to the same relations and obligations from and to their parents, as if born in lawful wedlock.’ — Ordnance 39, Code 1867, p. 64.”
It therefore follows that the judgment of the circuit court is reversed, and the cause remanded, that that court may reverse the judgment of the probate court and remand the cause to the probate court for another trial, whereat the questions of dispute will be reopened for further proof if it can be made.
Reversed and remanded, with instructions.
Dissenting Opinion
(dissenting). — Marriage is the “civil status or personal relation of one man and
1. The undisputed facts in this case are as follows: On November 5, 1875, under a license issued on that day by Joseph Gothard, probate judge of Dallas county, Ala., Jim Bell was regularly married, by John Blevins, a minister of the gospel, to Mary Goldson. This marriage was in accordance with our statutes, and is shown by the records of Dallas county. Jim Bell and Mary Goldson were colored people and ex-slaves. After their said marriage they lived together continuously as husband and wife until Jim Bell was killed by the Tennessee Goal, Iron & Railway Company in October, 1910. During this period of 35 years, while these two people lived together as husband and wife, they raised a family of children and grandchildren, and at no time, during all that period, was the validity of their marriage questioned, and, so far as this record discloses, at no time during all that period was it claimed that Jim Bell had married previous to his marriage to said Mary Goldson. When Jim Bell was killed an administrator was appointed upon his estate, and this administrator collected $1,102.24 from the Tennessee Coal, Iron & Railroad Company for causing his death. This fund is the cause of this litigation, and if this fund had not appeared after Jim Bell’s death, we think it plain that the validity of his marriage to Mary Galdson would never have been questioned by any one. About 25 years before the death of Jim Bell a woman, Cornelia, was married to a man by the name of Jackson, in Montgomery county, Ala., under a license regularly issued, and the marriage was solemnized according to the forms of law. She so testified, and she fur
The fact that Jim Bell acknowledged George as his son we regard as possessing practically no value as evidence. The average negro, as a slave, and for a good many years after emancipation, regarded concubinage with as much complacency as did the patriarchs of old, and recognized, without hesitation or sense of shame, the child begotten by him out of wedlock. Neither are we disposed to place much faith in the uncorroborated
2. Marriage is a solemn thing. Upon it depends the title to our lands, the claim to our family names, and the vast interests which the laws governing the subject of the descent and distribution of the estates of those lying intestate protect. When, therefore, a marriage between a man and a woman is shown by the public records to have been duly solemnized, it should take a strong showing, indeed, for that marriage, in a pro
When the fact of marriage rests in parol, then the law looks to the acts and conduct of the parties to ascertain whether they were, in fact, ever married to each other. In the instant case Cornelia and Jim Bell each did a thing which sharply challenged the truth of Cornelia’s statements as to what the true relations between her and Jim Bell actually were, viz., Cornelia and Jim Bell each married — Cornelia, a man named Jackson, and Jim Bell the woman named Mary Gold-son. “The weight of authority and the decision of this court support the proposition that the presumptions of an actual marriage from the fact of continued cohabitation, etc., is rebutted by the fact of a subsequent permanent .separation, without apparent cause, and the actual marriage soon after of one of the parties.”— Moore v. Heineke, 119 Ala. 627, 24 South. 374. In the instant case, both pa/rties married; and, while Cornelia, to bring herself within the operation of the ordinance of September, 1865, referred to in Washington v. Washington, supra, testified that she and Jim were married by a minister of the gospel, this part of her testimony is without corroboration, and is in fact contradicted by her subsequent marriage to Jackson. She may possibly have testified truthfully, but, if so, she needed testimony independent of her own to overcome her subsequent inconsistent act, viz., her marriage to Jackson, which rendered her a felon in the eyes of the law, if she was, when she married Jackson, as she now claims to have been, a married woman. George Bell’s testimony does not help her. George was not born, according to all the testimony, until some time in 1867 — two
The probate judge, it is true, had evidence before him which we do not possess, viz., he had before him the demeanor of the witnesses while they testified before him. That evidence, however, can not affect our opinion. The witnesses may have- possessed the demeanor most circumspect, and they may have given in their testimony with the most faithful air of truth. Their evidence, no matter how impressively it may have fallen from their lips, is not sufficient to overcome the strong presumption with which the law surrounds the marriage which was solemnized in November, 1875; and we must get something more than the testimony of a woman who undertakes to show that she is a bigamist, and something more than the testimony of the son of that woman —a son whose own testimony shows that his recollection as to the events to Nhich he testifies cannot be reliable — before we can consent that a status so well defined as that which existed between Jim Bell and Mary Goldson for a period of 35 years shall be overturned. The testimony of these two witnesses may be true, but
Taking into consideration the extremely strong presumptions with which the law surrounds the marriage of Jim Bell and Mary Goldson, and the long period during which those parties, after that marriage, lived together as husband and wife, taking into consideration the inherent evidences of falsity which appear in the testimony of Cornelia Jackson, George Bell, and Harriet Winston, and the peculiar circumstances which gave rise to that evidence, it seems to us that the decree of the probate court was palpably against the evidence, and that it cannot be sustained.
3. The circuit judge evidently came to the above conclusions. We think that his judgment should be affirmed.