*1 Emily Filmore MARCUM Lebell and Ben Fil more, Emily the Use and Benefit of Marcum, Lebell Filmore In Er Plaintiffs ror, Filmore,
Juanita M. nee ZARING Wanda M. Filmore, Yook nee Norman R. Filmore and Diaz, R.C. Miller Helen Defendants in Error.
No. 40597.
Supreme Court of Oklahoma.
Aug. 3, 1965.
Supplemental Opinion Rehearing
Oct *2 of
20, 1895, they were the same and that woman and of no аge. was a She white n ¡ n - Indian blood. j a divorce of Wil- no record of liam Filmore from Linna Gee Filmore William Filmore had no children Linna.’ evidence shows in Tina Ladford were Oklahoma married City by marriage. a A ceremonial couрle license to this was issued County Clerk on No- Court of Oklahoma 22, vember 1921. this four To children were born. One of these four infancy. died chil- children in three dren three who lived are the defendants here, Filmore, son, Norman R. a the oldest 1922, in child of this born Juanita 1924, Zaring, M. born nee Filmore Yook, Filmore, July Wanda M. born nee 19, 1927. Tina Filmore and Wil- Ladford liam Filmore were divorced on the 4th of April 1931, in Court the District of Okla- n ! County, homa Oklahoma. on day Filmore died the 17th of December, 1934, Phoenix, Arizonа. He approximately seventy-four years was age at the date of his death. July 22, 1935,
On Linna Filmore of Huer- County, Colorado, general fano executed a warranty deed to Filmore Maricopa Ben County, Arizona, dispute to the land in this action. This deed was filed for record County, Oklahoma, Pontotoc January on conveyed 1940. Ben Filmore the land daughter, to his Emily Lebell Filmore Mar- Ada, cum. Wadlington, Carloss
in error. The record is not clear as to what was Edmond, Zаmrzla, Arends, E. Ike Wade regard the situation in land from the City, for defendants error. date of the death of William Filmore until when brought by a suit was
HALLEY, Chief
quiet
Justice.
defendants in this case to
title to the
a full blood
William Filmore was
Chicka-
land
them.
This was done in а
opposite Roll
saw Indian
Number
entered in
enrolled
case No.
the District
County
He received as his homestead allot- Court
Pontotoc
day
on the 6th
December,
thirty
ment one
ten and
three
hundred and
1950. The
parties
one
сase at bar
(110.33) acres of land
were not made
hundredths
in said
County,
what
case No.
is now Pontotoc
Oklahoma.
19835. Some of the defendants
persons
forty-two years
September
He
therein were
claiming through
old on
impropеrly
further
tax deed which had
1902. The evidence
shows that
been
issued
February
property
he was
Linna Gee on
involved
married to
here
and others
be contained in
Fannie Renison
so will
claiming as heirs of
discussion of
One,
plaintiffs’ propositions
that she
It was claimed
Four and Six.
was deceased.
who
As
said
of William
the wife
Under
first
we are
Fil-
of William
three children
before
immediately
confronted
problem
with the
*3
awarded the
by
were
Tina Ladford
more
what
determining
was the effect of Wil-
property.
marriage
liam Filmore’s
to Tina Ladford.
question
There is no
persons
but that these
plaintiffs
raised seven
have
Counsel for
purportedly
married in 1921 and that
which are:
for reversal
grounds
their three
legitimate
children are
and in-
Judgment
below is
of the Court
“1.
herited from William Filmore. This is
contrary to
contrary
to evidence
conceded
brief.
sen-
The last
evidence, it should
under the
law and
O.S.1961,
tence
pro-
of Section
of 84
Filmore
that Linna
been found
have
:
vides
Fil-
surviving wife of
was the
“
**
* The
marriages
issue of all
undivided one-
inherited an
more and
law,
divorce,
null in
or
by
dissolved
are
land,
and that the
third interest
the
legitimate.”
an un-
plaintiffs are entitled to recover
land
interest
the
divided one-third
question
There is no
but that Linna Gee
involved.”
legally
William Filmore were
married
and were wife and husband.
is no
in 1935
“2. The
executed
deed
they
that
evidence
were divorced. Tina
Filmore was not
Linna Filmore to Ben
Ladford makes no claim to
an interest
champertous.”
the estate of William Filmore.
record
The
,
plaintiffs may
“3. The
maintain
her
divorce from him was not introduced
action.”
in evidence but
hardly
its existence could
discretion
The
abused its
“4.
court
questioned.
be
re-opened
allowing
trial to be
the
plaintiffs
The
attempted
have
docu-
additional
the introduction of
for
presumption
break
the
down
that Tina Lad-
by the
mentary
submitted
evidence
marriage
ford’s and William Filmore’s
in ovеr-
court erred
plaintiffs and the
legal.
have failed to do.
trial insofar
new
ruling the motion for
Plaintiffs’ first
is:
sought
such
to introduce
it was
as
documentary evidence.”
“Judgment
additional
of the court
con-
below is
trary
contrary
to evidence and
lawto
overruling
erred in
“5.
court
evidence,
and under the
it should have
for a new
motion of the
the
been found .that Linna Filmore was
trial.”
surviving
the
wife of William Filmore
refusing
“6. The court
erred
and inherited an undivided one-third
ruling
legal
competеnt evidence
out
land,
interest
plain-
and that the
being
plaintiffs,
same
offered
tiffs are entitled to
un-
recover an
pedigree
to the
as
divided one-third
land
interest
by witness,
lack
of divorce offered
involved.”
Emily Lebell
Marcum.”
When wе consider the
Judgment
“7.
reversed
should be
of Tina Ladford and William
for the
directions for
legal
strongest
Filmore was
is one of the
recovery
undivided
for
of an
law,
say
known to the
hardly
we can
one-third
real estate
interest
plaintiff
presumption.
has overcome this
and for
rents and
one-third of the
possibility
that either William Filmore
profits thereof.”
or his first wife
gotten
Linna had not
divorce
We
trial court
from each other
have concluded that
was not shown.
doing An
must be
effort
made to
the rec-
affirmed and our reasons
introduce
mony
counties in
plaintiff,
ords from different
Emily Lebell Filmore
had Marcum,
hut
if this evidence
Colorado
even
which was to the effect that she
been admitted it would not show thаt
had never heard of William Filmore and
granted
other
divorce had not been
in some
Linna Filmore being permanently separated
jurisdiction.
or that
had ever been divorced. An
objection was sustained
testimony
to this
question
There is no
here but
properly
so as it
proved
would not have
twice
William Filmore was married at least
disproved
any fact in this case and to
and Tina
his
Their
Ladford was
last wife.
admit would
it
have been error. St. Louis
beyond question.
was established
&
Ry.
S. F.
Slade,
Co. v.
144 Okl.
rule
Since this
committed to the
Court is
P. 107.
*4
in
marriages
case of
the
conflicting
of
spouse,
validity
presumption
same
of
the
the
as we do on these
Holding
fundamental
marriage,
operates in favor
the secоnd
of
propositions we see
necessity
no
to dismiss
marriage
will
Tina
we
hold that
the
of
the
points.
other
legal
Ladford and
Filmore was
William
The
of the trial court
is af-
they
hus
and that until their divorce
were
firmed.
Coffield,
band and wife.
Norton v.
Sеe
Okl.,
The in case burden this was plaintiffs the show that Linna Filmore to HODGES, JJ, WILLIAMS and concur and William had never been divorc in result. ed. This was not done. Rehearing. On strong
We have said that one the of presumptions est the in grounded of law LAVENDER, public policy favoring presuming and mor Justice.
ality, marriage legitimacy petition rehearing and is a In the filed herein shown, presumed error, once be plaintiffs to in origi- she her asserts legal propositions nal presumption valid and that this fоur and which six are set time, strength lapse increases in opinion the of forth in original prom- verbatim the recognition acknowledgment ulgated August 3, the of marriage and birth of children. In considering propositions these the original oрinion did not the discuss evidence
Under their fourth
the
the trial
adduced at
nor
the offered evidence
argue that the trial court erred
plaintiff’s
set forth in the
motion to re-
in not permitting them to offer evidence
open,
rej
which was
ected
the trial court.
of their
the
search of
records of several
plaintiff in
error asserts that the cumu-
counties
and in
Oklahoma
Colorado
lative effect of the evidence which was ad-
they
any
Arizona and
unable
were
to find
trial, together
mitted at the
with that which
record of a
Still
divorce
those counties.
plaintiff
says
in error
should have been
holding
in face of
Cof-
our
Norton v.
admitted,
field,
necessitates our reversal of the
supra, it
would
hаve been suffi
court,
evidence, plaintiff
trial
that such
cient under the
in this case
facts
to over
urges,
presump-
was sufficient to
the
rebut
presumption
validity
come the
the
the
validity
tion of
of the
under at-
of Tina Ladford and William
taсk.
comprehensive
note
See also the
Sam,
172
A.L.R.2d
and Sam
at
What
was
evidence before the trial
462;
James, 69
Okl.
45 P.2d
Thomas v.
court ?
285,
at different validity marriage. time lived of the second Linna at died in Colorado. There is no the record to Linna, establish that William either Marcum, C. A. The next witnеss them, Sulphur, continued to reside in He just mentioned. the witness husband of place last to which There was moved. boy living in he was testified that when lack of total evidence as to the where- Oklahoma, knew Chickasha, he abouts of Linna Filmоre from the time she and knew that Linna Filmore and Sulphur and William moved to until she husband and wife. together as lived there began living Colorado. There was no Chickasha, living at That in addition long evidence as to how before it was lived, to this according Linna Sulphur. that William moved to The bur- Valley and Henryetta, witness, Pauls at proof plaintiff den of here That when Sulphur, all Oklahoma. attacking validity of the second mar- Linna, William, he knew witness first riage, proof and the was insufficient. Chickаsha, and it stated, living at as *5 1915 it was about That was about validity While the to Pauls Linna moved when William rebuttable, of a is Madison v. lived, in the words Valley where Steckleberg, 237, 961, 101 Okl. 224 P. while”; that there- witness, “Quite a 517, Puntka v. Puntka, 174 Okl. 50 P.2d after Sulphur, to after moved 1092, only by cleаr, same can be rebutted not see did years witness for several cogent convincing evidence. Sam v. not did witness That William (cited Sam, 342, 172 Okl. 45 P.2d 462 whether Sulphur or know at visit William original opinion). Templeton See also or not. him then Linna lived 1, Jonеs, 543; Okl. 127 259 P. Thomas v. not know he did stated further witness Jones, 23, 339, (cited Okl. 289 P. in the Linna of William the whereabouts opinion). original For a case almost direct into the entered year (the ly point, Hale, 101, see Hale v. 40 Okl. Tina). marriage with second 1143, 135 P. where this court said: “ * * * that William was other Nor does the evidence per- City, and Ardmore in Oklahoma lived establish that the counties named in years between part of those haps, during a depositions only are the counties 1921, the marriage and his first date of Shugart during which resided said he marriage. When second date of the time, only or that said courts were shown. long howor lived there jurisdiction courts that would have had ” * * * grant him a divorce. constituted all the evidence The abоve point upon as shown in the record Brokeshoulder, Brokeshoulder v. 84 Okl. had Linna lived or where William and/or 204 P. is not in A.L.R. during the time respective their residences point upon facts, for there the con- prior to 1921. participants tinuоus residence of both evidence, Plaintiff, after the close of the marriage, first from the time of the first re-open moved and introduce leave to marriage until his death the case records of mentioned those counties trial, the wife to the affirma- time testimony, which records would show that tively by shown the evidence. no either divorce was obtained Petition for denied. rehearing Filmore or Linna in those counties. HALLEY, J., J., JACKSON, C. V. C. Even if evidence had been the above DAVISON, WILLIAMS, BLACK- admitted and considered the trial court BERRY, conjunction BIRD, JJ., ad- concur. with the other evidence