82 W. Va. 650 | W. Va. | 1918
The only controversy involved here is whether the father of S. A. Meade, deceased, or his reputed widow is entitled to administer upon his estate. A short time after Meade’s death the reputed widow made application to the clerk of the county court of Mercer county for the appointment of an administrator for his estate, waiving her right to be appointed as such, but nominating a person whose appointment she desired, as she had a right to do if she was entitled to administration herself. Taylor v. Virginia-Pocahontas Coal Company, 78 W. Va. 455; In re Stollings’ Estate, 82 W. Va. 18, 95 S. E. 446. The clerk at that time declined to make the appointment for the reason that the county court of said county, according to his construction of the statute, was not in recess. The fact of this matter is that the court had a few days prior thereto been in regular session, and had adjourned over to a distant day a month in the future. The clerk contended that, because of the fact that the court had not finally adjourned, it was not in recess under the law, and that he could not make the appointment. A few days later the father of S. A. Meade applied to the clerk and asked to have an administrator appointed, and the clerk upon his application declined to malte the appointment for the same reason that he had declined to make it upon the application of the reputed widow. Counsel for the father, however, contended that the clerk’s construction of the statute was wrong, and that while the court had not finally adjourned, the time between the adjournment and the day fixed for re-convening was a recess of the court, and insisted upon the clerk making the appointment, to the end that the correctness of the clerk’s construe
It is suggested that the appointment of Crockett by the clerk of the county court while the court was not actually in session, but had adjourned to a day a month in the future, was absolutely void and was no such appointment as the court could act upon. We do not think this contention can be maintained. The statute provides that the clerk has the authority to appoint administrators in the recess of the court.
What is meant by the recess of the court ? Could it be said that where, as in this ease, the court., in order to save calling a special term, has adjourned ever for thirty days there would be no tribunal having authority to appoint a personal representative in that interim? Clearly the statute was made to' cover not only the period that the court was in actual adjournment, that is. the time intervening between final adjournment and the beginning of its next term, but the language is such as to show a clear intention to cover all periods when the court is in recess. The Avord recess, as used in this section, means when not actually sitting. That is the common acceptation of the term, and we see no good reason for giving to it in this connection a meaning different from that which it ordinarily possesses. See the definition of the term recess in Black’s Law Dictionary, p. 996; Bouvier’s Law Dictionary, p. 2838; 7 Words & Phrases, 1 series, n. 5998; 4 Words & Phrases, 2 series, p. 206; In re Gannon, 69 Cal. 541.
To support her contention that she is the widow of S. A. Meade, the plaintiff in error offered the testimony of her father. He stated that about a year prior to the time he was testifying his daughter and Meade left his house in Russell County, Virginia, with the declared intention of getting mar
In considering the matter involved here it must be borne in mind that in order for a marriage contracted in this state to be valid it must be solemnized as required by statute. In order to a valid marriage under the laws of this state there must have been performed what is ordinarily known as a ceremonial marriage, that is, the law requiring the issuance of a license and the performance of a ceremony by one authorized thereto must be complied with. Beverlin v. Beverlin, 29 W. Va. 732. Neither does the state of Virginia recognize common law marriages. Offield v. Davis, 100 Va. 250. From the statement we have made above it appears that there was no direct evidence offered to show that a ceremonial marriage had been consummated. It is not shown that any license had ever been issued authorizing the marriage of these people, nor is any witness offered who was present at any ceremony at which they were united in marriage, but it is likewise true that the evidence which was offered, while not direetly proving
On the 8th day of July, after the court had adjourned on the first day of that month, the day administration -was granted to Crockett, the reputed widow again appeared by her counsel, and asked that she be allowed to further present her case. This was denied her, and she complains of this ac
The judgment complained of will be affirmed.
Affirmed.