124 Tenn. 415 | Tenn. | 1911
delivered the opinion of the Court.
The bill was filed by the children of Sam Rucker (colored), deceased, born by his first wife, Martha, against Clary Rucker, the wife of a second marriage, now his widow, and the children of that marriage. It was alleged that the second marriage was void, because made during the lifetime of the first wife. The complainants therefore claim the land of their deceased father as his only
The rule upon this subject is that, where a marriage has been regularly solemnized, the law will presume that it was valid, and will cast upon those asserting its invalidity the burden of showing the fact. This is true when it is asserted against such marriage that it was entered into pending a valid prior marriage. If the former spouse be living, the law, in cases involving the settlement of property rights, will presume that one or the other party to the former marriage had procured a divorce before the second marriage was entered into. The burden is upon tl^e person attacking the validity of such marriage to show that there was no such divorce. This may be shown, and generally should be shown, by evidence that the records of the courts had been searched where such divorce decree or judgment should be found, if in existence at all, and that they show no such entry. The fact may- also be shown by other direct evidence, and by circumstances; but the evidence should be cogent and convincing, since, in the interest of social order, the presumption in favor of marriage is very strong, and the pressure of that presumption is left at every
There is no testimony in this case that the conrt records of Landerdale connty, where Sam Rucker and Martha, his former wife, resided until they died, had been searched to ascertain whether they contained anything concerning a divorce between these parties. The only evidence relied upon to rebut the presumption of a divorce is that Martha was residing with Sam at .the time the marriage with Clary .was entered into; that, while she was aware of the wedding.ceremony at the time it was performed between Sam and Clary in front of the porch, she did not actually go out and hear or see the ceremony; that, while the marriage was in progress, she
It results that both marriages- were legal, and the children of both are legitimate; that Clary, as the widow, is entitled to homestead and dower, and the children born of the two marriages are entitled to the land, subject to the widow’s rights.
A decree will be entered, adjusting the rights of the parties on this basis, and remanding the cause to the court below for further proceedings.
The costs of this court will be borne equally by the two sets of heirs. The costs of the court below will be disposed of as may be hereafter decreed by the chancellor.