The administrator of the estate of Joe Cole, Jr. brings this appeal from a judgment of the probate court that appellee Bethel Cole was the lawful widow of appellant’s decedent and entitled to the widow’s statutory interest in his estate. The judgment was based upon the court’s finding that appellant had not overcome the presumption of validity of a second or subsequent marriage. We find that the preponderance of the evidence does not support the judgment.
Joe Cole, Jr., who died May 11, 1968, and Bethel Cole (nee Williams) participated in a marriage ceremony on July 23, 1962, in Lee County, Arkansas, where appellee had resided all her life. She had previously been married to Jesse Ratliff on September 11, 1948, also in Lee County. She bore two children by Ratliff — one born before their marriage and one after. In March, 1949, they were separated. On October 29, 1950, Ratliff married Leona Morry in Lee County.
Appellee testified that she never filed a divorce suit against Ratliff. She thought that she was divorced when she signed a document labeled “Divorce Papers” brought her by Ratliff soon after their separation. Ratliff testified that he never got a divorce from ap-pellee in Missouri, where he resided from the time he left Lee County in 1950 until 1959, and from 1962 until he testified on April 23, 1969, or in California, where he resided during the intervening period. He also testified that he never attempted to get a divorce anywhere except in Lee County, where he took steps to do so shortly after he and appellee were separated. He said that he thought he was divorced from appellee when he entered into the second marriage. He based his supposition on the fact that he had delivered some “divorce papers” signed by appellee and by two witnesses to a lawyer in Marianna, whose name he could not recall. Although he said the lawyer agreed to handle the matter from there on, stating that no further action by Ratliff was necessary, he also testified that the lawyer never advised him that he was divorced. He never saw a divorce decree. He said that he never paid the lawyer anything, but understood that his “foreman” would pay the necessary expense.
The Deputy Circuit Court Clerk having supervision of the records testified that she had searched them and found that no suit for a divorce had been filed by either Jesse or Bethel (Williams) Ratliff and that there was no decree divorcing them. Her method of searching the docket for evidence of the filing of a suit was so meticulous that it included checking the case numbers to determine that none was missing. Appellee admitted that she never received any papers evidencing a divorce. She said that Ratliff told her she was signing a divorce when he brought the papers to her. •
The presumption of validity of a marriage is one of the strongest in our law. See Sims v. Powell,
A reversal would, then, be clearly indicated if ap-pellee’s principal reliance to sustain the judgment were not based upon Ark. Stat. Ann. § 55-109 (1947). This issue was raised in the trial court, but apparently was not considered by the probate judge. This statute provides:
In all cases where any husband shall abandon his wife, or wife her husband, and resides beyond the limits of this State for the term of five (5) successive years, without being known to such person to be living during that time, their death shall be presumed, and any subsequent marriage entered into after the end of said five years (5) shall be as valid as if such husband or wife were dead.
There is evidence upon which it might be said that, after Ratliff’s second marriage, he resided beyond the limits of this state for more than five consecutive years, without being known by appellee to be alive. The presumption of validity of the second marriage was overcome by proof that Ratliff was alive and that neither had obtained a divorce. Watson v. Palmer,
Appellee testified that Ratliff just walked off and left her and went to his daddy’s house (in Lee County) where he stayed for at least three months. He never visited the children or contributed to their support. She never sought to obtain any support for herself or her children, or made any inquiries about the granting of the divorce or provisions of the decree. Even though the circumstances might be said to make her failure to inquire of minor significance, the fact remains that she never made any inquiries of relatives of Ratliff, who had lived in the same county, or of anyone else as to his whereabouts, for support purposes or any other, even though Ratliff had lived in Lee County nearly all his life prior to 1950.
Appellee’s conduct in signing the “divorce papers” brought to her by Ratliff was just as consistent with her consent to the separation as with abandonment. It is also consistent with recognition of grounds for divorce in favor of Ratliff. When asked if she knew what grounds for divorce Ratliff was using, she acknowledged that he was getting a divorce from her and that she had no objection. Ratliff’s testimony indicated that the separation was by mutual agreement. Her willingness for Ratliff to obtain a divorce without contest and her failure to ever make any effort to file a suit for divorce or alimony for herself tend to negate her present contention that his “walking off” was without either consent or justification, so that we cannot say that the evidence preponderates in her favor.
The judgment is reversed.
Notes
Although there is a division of authority, some courts hold that one cannot be without knowledge whether a former spouse is living without having made appropriate inquiry. See Alixanian v. Alixanian,