219 Miss. 313 | Miss. | 1953
This is an interlocutory appeal from a decree of the chancery court in the Estate of Malcolm N. McCaskill, making a statutory widow’s allowance to Mrs. Lois M. McCaskill. The important question passed upon by the court below and involved on this appeal is whether or not Mrs. McCaskill, the appellee, was the common-law wife of Mr. McCaskill at the date of his death on March 20, 1952.
It is necessary that the basic facts be stated at the outset for a proper understanding of the matters involved. Mr. McCaskill was an oil man, and in the fall
Mr. McCaskill appears to have been a heavy drinker and in fact a confirmed alcoholic. It appears that after the discovery well was brought in, he remained under the influence of liquor for a good portion of the time, so that his associates were in a critical position on account of their inability to get him to sign necessary contracts. In this situation, one of the associates, understanding that Mr. McCaskill was very fond of his former wife, the appellee here, who resided in California, telephoned her and requested that she come to Mississippi in order to try to “sober up” Mr. McCaskill. She consented to do so.
When Mr. McCaskill learned that she was coming to Mississippi, he “sobered up” and remained sober thereafter for a considerable time. On November 23, 1951, he obtained a marriage license in anticipation of Mrs. Mc-Caskill’s coming to Mississippi, and on the next day, November 24, he met her in Memphis at the plane and brought her back to the hotel in Aberdeen where he was then residing. Several of Mr. McCaskill’s friends, understanding that there was to be a marriage, sent flowers to the hotel room. It appears that, up to this time, Mr. McCaskill had thought that Mrs. McCaskill had divorced him in California at some time in the past, as they had not lived together since about 1946. When they arrived at the hotel from Memphis, Mrs. McCaskill stated to some of his friends and in Mr. McCaskill’s presence, after something had been said about congratulations being in order — “Well, no, I have never divorced him. Mac said he thought I had, but I didn’t.”
At this point, it is noted that the testimony of many witnesses overwhelmingly shows that during the time that Mrs. McCaskill was in Mississippi from November 24 to December 4, 1951, she and Mr. McCaskill were generally known as husband and wife, held themselves out to their friends and associates as such, and acted in every way as if they were married people. It appears to have been the general understanding in the community that they were husband and wife by virtue of their marriage of years before, which it was understood had not been dissolved by a divorce, although they had been separated for a long time. It is unnecessary to detail all of the evidence on this proposition but it is comprehensive and convincing.
Mr. and Mrs. McCaskill were originally married in March, 1935. There were no children of this marriage. Mr. McCaskill had previously been married and he had two children by his first marriage, they being the appellants, Mrs. Pat Estes and Mrs. Betty Fambro. Mrs. Mc-Caskill had also been married prior to her marriage to Mr. McCaskill and she had one child by that first marriage, Max Anthony, who was, at the time of trial, a young man about 22 years of age, who lived with his mother in California. After Mr. and Mrs. McCaskill
When Mrs. McCaskill returned to California on December 4, 1951, in her automobile, her brother, Mr. B. L. Maxham, and Mr. McCaskill’s sister, Mrs. Mary C. Finch, went with her. It appears from the evidence that Mrs. McCaskill owned or was buying a home in Los Angeles where she lived and that she had for a long time been employed as the manager or cashier of a restaurant in that city. Mrs. McCaskill’s mother, who was in very bad health, lived with her. There is testimony in the record that the plan was for Mrs. McCaskill to arrange to settle up her affairs in California and then return to Mississippi as the wife of Mr. McCaskill.
On December 24, 1951, Mr. McCaskill went to Los Angeles by plane and he remained there until December 28, when he returned to Mississippi. There is some conflict in the testimony about the occurrences in California during this Christmas visit. The proof offered by the appellee, Mrs. McCaskill, is to the general effect that Mr. and Mrs. McCaskill were together a great deal during
After Mr. McCaskill returned to Mississippi, he purchased a house in Houston, Mississippi, in which city he and Mrs. McCaskill had lived at one time, and he began to furnish and equip the house as a home. There is considerable testimony that he was preparing it as the home in which he and the appellee were to live when she returned to Mississippi. The house was completely furnished and ready for occupancy just a few days before his death. There is much testimony in the record with respect to the love of each of these parties for the other.
Immediately after the death, intestate, of Mr. McCaskill on March 20, 1952, Mrs. McCaskill returned to Mississippi. In due course an administration proceeding was begun, upon the petition of all of the interested parties, with a recital in the petition to the effect that the status of Mrs. McCaskill as his widow was at the time not determined and was uncertain by reason of a divorce proceeding in California and that the exact relationship to the deceased was yet to be determined. It was testified that this recital was contained in the petition to protect the rights of the parties when the facts should be developed. In the course of the proceedings for administration of the estate, the petition now before the court was filed by Mrs. McCaskill, setting up that she was the wife and is the widow of Mr. McCaskill and praying that the court set aside to her an allowance under the statute as widow. Inasmuch as the final decree of divorce between these parties was entered in the California court in October, 1943, the question before the court is whether Mrs. McCaskill became the common-law wife of her former husband on and after November 24,
We have not undertaken to set out the evidence in this opinion in detail, and the above outline of the facts omits many items of proof which are in the' record. However, we feel that this outline will give a substantial picture of the facts out of which the questions of law arise. After hearing the evidence, the chancellor held that Mrs. Mc-Caskill was the common-law wife of Mr. McCaskill and, therefore, is his widow and entitled to the rights of a widow. As indicated by his written opinion, the chancellor reached the conclusion which he did upon a finding that Mrs. McCaskill “did not have knowledge of this final judgment of divorce” and that “Mr. McCaskill knew this situation and knew that his wife believed that she had not divorced him. ’ ’ His opinion then continues as follows: “If the case were being tried between Mr. McCaskill and Mrs. McCaskill, he would be estopped to deny the existence of the common-law marriage. For the same reason, his daughters aré likewise estopped to deny this common-law marriage. The court holds that there was a bona fide intent on the part of Mr. and Mrs. Mc-Caskill to assume the relationship of husband and wife, and that, pursuant to this intent, they became common-law husband and wife with all the essential elements of this re’ationship being shown, and this in spite of Mrs. McCaskill’s mistaken opinion that the interlocutory decree of divorce had not been made final.”
We reach the conclusion that the chancellor was correct in his decision that Mrs. McCaskill is the widow of Mr. McCaskill and that there was in fact a valid common-law marriage between them in November, 1951. However, we do not concur with the reasons given by the chancellor for that result. Our view of this case may be summarized in short as follows:
(1) The record shows without any doubt that, after Mrs. McCaskill came to Aberdeen and advised Mr.
We have in mind in the consideration of this case, as did the chancellor, the rule as stated in U. S. F. & G. Co. v. Smith, 211 Miss. 573, 52 So. 2d 351, that: “A claim of common-law marriage is regarded with suspicion and will be closely scrutinized. Thus, in order to establish a common-law marriage, all the essential elements of such a relationship * * * must be shown by clear, consistent, and convincing evidence, especially must all the essential elements of such relationship be shown when one of the parties is dead.”
With reference to our holding that the chancellor is not supported in his finding that Mr. McCaskill was aware of the true situation and knew that there was a final divorce between the parties when they were reunited in Aberdeen in November, 1951, we now refer to some elements in the record which have brought us to this decision. In the first place, it is shown that Mr. McCaskill loved his former wife with great devotion. Although he apparently believed, prior to her arrival in Aberdeen, that there had been a divorce, it is obvious that he intended to remarry her, because he obtained a marriage license on November 23, as soon as he knew that she was coming. The fact that he told his friends
It has often been stated that the agreement for the creation of a common-law marriage must be unequivocal and free from any reservations, mental or otherwise,
The leading case is Travers v. Reinhardt, 205 U. S. 423, 51 L. Ed. 865. In this case it became necessary to determine whether James Travers and Sophia Travers were lawfully married at the time of his death. These parties went through an apparently invalid marriage ceremony in 1865 in Alexandria, Virginia. The parties immediately went to New Jersey and remained there a short time as husband and ..wife. They then moved to Maryland and resided there as husband and wife until some time in 1883, when they moved to New Jersey and resided there until Mr. Travers’ death on November 1, 1883. During all of the time from 1865 to 1883, they acted as if they were lawfully husband and wife and they were regarded as such in the communities where they lived. For purposes of the decision, it was assumed that the original marriage ceremony in Virginia did not constitute a valid marriage, and that their long residence in Maryland did not create a marriage relationship, because of the absence of a religious ceremony as required in that state. The court then approached the question whether the parties became husband and wife in New Jersey, where common-law mar
“Did the law of New Jersey recognize them as husband and wife after they took up their residence in that state and lived together, in good faith, as husband and wife, and were there recognized as such? Upon the authorities cited this question must be answered in the affirmative.
“We are of the opinion that even if the alleged marriage would have been regarded as invalid in Virginia for want of license, had the parties remained there, and invalid in Maryland for want of a religious ceremony, had they remained in that state, it was to be deemed a valid marriage in New Jersey after James Travers and the woman Sophia, as husband and wife, took up their permanent residence there and lived together in that relation, continuously, in good faith, and openly, up to the death of Travers, being regarded by themselves and in the community as husband and wife. Their conduct towards each other in the eye of the public, while in New Jersey, taken in connection with their previous association, was equivalent, in law, to a declaration by each that they did, and during their joint lives were to, occupy the relation of husband and wife. Such a declaration was as effective to establish the status of marriage in New Jersey as if it had been made in words of the present tense after they became domiciled in that state.”
This Court has cited the Travers case with approval in Sims v. Sims, 122 Miss. 745, 85 So. 73. In that case, the husband filed suit against his wife for an annulment, or, in the alternative, for a divorce. There was an appeal from an interlocutory decree awarding the wife alimony pendente lite. This decree was affirmed. The facts were that at the time of the marriage between the parties the wife had a living husband by a previous marriage. She and the appellant were mar
“The marriage of the appellee to the appellant in 1893 at Crownpoint, Ind., being void for the reason that she was then the wife of another, the question for decision is whether or not their relations after the appellee obtained the divorce from Perrin in 1903 has resulted in a common-law marriage. *****
“It is not clear, or at least we will assume that it is not, from the appellee’s testimony, that she and the appellant entered into a new marriage agreement after she obtained the divorce from Perrin, but no such new agreement was necessary, for the reason that her marriage with the appellant in Indiana was entered into by both of them, according to her testimony, which the court evidently accepted as true, in good faith, under the belief that her marriage with Perrin had been dissolved, and after its dissolution in 1902 they, the appellant and the appellee, continued in good faith to live together as, and considered themselves to be, husband and wife.
“ ‘Their conduct towards each other in the eye of the public (after the removal of the impediment to their*328 marriage) taken in connection with their previous association, was equivalent in law to a declaration by each that they did, and during their joint lives were to, occupy the relation of husband and wife. ’ Travers v. Reinhardt, 205 U. S. 423, 27 Sup. Ct. 563, 51 L. Ed. 865.
‘ ‘ There has been considerable discussion as to whether a new marriage agreement must be entered into upon the removal of an impediment to a valid marriage of persons cohabiting as husband and wife. The cases dealing therewith seem to be divided into three classes, as will appear from a collation thereof in note to Turner v. Williams, 3 A. R. C. 165, and 18 R. C. L. 436. The first class, which seems to be in the majority, holding that no such new agreement is necessary in any case; the second, that no such new agreement is necessary where the marriage void because of an impediment thereto was contracted in good faith; and the third, and this class seems to be in the minority, that such new agreement is necessary in all cases. * * * * *
“That it does not appear from the evidence where the parties hereto lived after the rendition of the decree divorcing the appellee from Perrin until they came to Mississippi, which seems to have been in the year 1906, is of no consequence, for the reason that, whether or not their relations resulted in a valid marriage in any state in which they may have lived after the rendition of the Perrin divorce decree and before they came to Mississippi their conduct towards each other here, ‘taken in connection with their previous association, was equivalent in law to a declaration by each that they did, and during their joint lives were to, occupy the relation of husband and wife.’ Travers v. Reinhardt, 205 U. S. 423, 27 Sup. Ct. 563, 51 L. Ed. 865.”
This Court has also cited the Travers case with approval in Walker v. Matthews, 191 Miss. 489, 3 So. 2d 820; and, in the case of Jourdan v. Jourdan, 181 Miss. 176, 179 So. 268, this Court cited and followed the Sims
“ * * The parties moved to Mississippi, and continued to live together and hold themselves out as husband and wife, without any specific agreement having been made after the death of the former spouse. The wife afterwards sued for alimony and support; whereupon it was contended that there was no marriage, because there was no specific agreement after the removal of the obstacle which originally rendered the marriage void; but the court held that there was a common-law marriage and sustained the suit for alimony.”
Of course, there is no rule of law preventing persons who were formerly married and then divorced from entering into a valid common-law marriage, if the facts-sustain it. Oatis v. Mingo, 199 Miss. 896, 26 So. 2d 453. We conclude that the underlying principle of the Travers case and the Sims case applies to the situation before the Court on the present appeal. In those cases and in the case at bar, the parties were living tog-ether as husband and wife in the belief that the relationship existed because of a marriage ceremony of some years before, and without any present agreement to enter into a new marriage relationship. In the one case it was held that when they went to New Jersey where common-law marriages were recognized and continued to live as husband and wife in good faith, they thereby became validly married. In the other ease, the same result followed when the parties moved to Mississippi where commonlaw marriages are recognized. In our present case there was no disability which was removed after the ceremonial marriage, as in the Sims case, but the same principle applies because there was the good faith continuance of the marriage relationship in the belief that the parties were already husband and wife.
As supporting- the doctrine applied in this case, although not directly in point, we note Navarro, Inc. v.
Appellants rely on Clack v. Williams, (Tex. Ct. Civ. App.) 189 S. W. 2d 503, which is contrary to onr decision, now made. We have carefully examined that case, and decline to give any weight to it, as we consider it unsound. In this connection, we note that the Clack case was mentioned but not followed in a later Texas case, which harmonizes with our present holding. See Consolidated Underwriters v. Taylor, (Tex. Ct. Civ. App.) 197 S. W. 2d 216. In this case, Mary and Melvin Taylor entered into a ceremonial marriage, at a time when he, unknown to her, had another wife living. Thereafter, the husband divorced his first wife. He and Mary continued to live together. It was stipulated that after the ceremonial marriage there was never any agreement between Mary and Melvin Taylor to become man and wife. Nevertheless, the court held that there was a valid common-law marriage between them, after the impediment was removed, and, in the opinion, said:
“* # * From the record, Mary entered into the ceremonial marriage in good faith, believing that' her marriage was lawful and not knowing at any time of the impediment which rendered it unlawful at its inception. In the very nature of the marriage relation, the continued living together of Mary and Melvin as husband and wife after the removal of the impediment which rendered the original marriage invalid was necessarily a constant offer and acceptance of the mutual relation of husband and wife between the parties, and their cohabitation under such circumstances constituted the lawful relation of husband and wife. Their continued living together as husband and wife after the impediment was removed, Mary not knowing of the existence of the impediment nor of its removal, did not merely raise .an inference of an agreement of marriage, which would have been rebutted by the stipulation and the testimony*331 to the effect that no subsequent agreement of marriage was ever made, but this continued living together as husband and wife after the removal of the impediment constituted the lawful relation of husband and wife.”
We are satisfied that under the facts shown in this record the appellee is the lawful widow of the deceased, Malcolm N. McCaskill. These persons entered into the relationship of man and wife, and held themselves out to the public as such, on and after November 24, 1951, in good faith, believing that they had the right so to do under their ceremonial marriage of 1935. Under the findings of fact as settled in this Court, they did not know they were divorced. It was not necessary that they consciously make an agreement for a new marriage, when they honestly believed that they were already husband and wife, and intended to resume their former marriage relationship.
For the reasons stated, we affirm this case, and, since this is an interlocutory appeal, we remand it to the court below.
Affirmed and remanded.