27 Miss. 471 | Miss. | 1854
delivered the opinion of the court.
This was a petition filed by the appellee, as .the widow of James C. Rawls, deceased, in the probate court of Kemper county, praying the court to cause to be set apart to her the portion of her deceased husband’s estate to which she is entitled under the statute.
The defence relied on was, that the petitioner intermarried with Rawls at a time when he had another wife living, and that therefore the marriage was void in law. The question for decision is one purely of fact, depending upon the weight of evidence.
The petitioner’s proof consists of the record of the marriage made in the office of the clerk of the probate court of Kemper county, showing that the marriage was solemnized on the 6th of December, 1848.
On the part of'the administrator, it was proved that James C. Rawls was living in the year 1844, in Chickasaw county, with a woman whom he treated as his wife, and that the parties were recognized as husband and wife in the community.
Another witness proved that he heard Rawls say, after his
Aside from the statement of Rawls, there is nothing in the testimony which raises a suspicion against the validity of the marriage. The fact that the deceased was living in 1844 with a woman, believed to be his wife, is no evidence that she was living on the 6th of December, 1848. The marriage having been solemnized according to the forms of law, every presumption must be indulged in favor of its validity. The statement of Rawls, while it could have been used as evidence against him in a proceeding in which he was directly interested, or could be affected, cannot be used to the prejudice of the petitioner. By consummating the marriage, he admitted that he could then legally enter into the alliance. The statement may have been true, that the first wife was then living; and still it would not necessarily follow that she was in a legal sense his wife, as the parties may have been legally divorced.
Under the whole evidence, as it- appears in the record, we are of opinion that the decree is correct, and ought to' be affirmed.
Decree affirmed.
