168 So. 465 | Miss. | 1936
On February 19, 1934, Vincent J. Olivari, a resident citizen of Harrison county, Miss., died intestate, and on February 23, 1934, Ben O'Keefe was appointed and qualified as administrator of the deceased's estate. On February 26, 1934, V.J. Olivari, Jr., filed a petition in said cause alleging that petitioner was the only child and sole heir at law of the deceased, Vincent J. Olivari; that petitioner was and is the only issue of the legal marriage of his father and mother. Mrs. Eva Elizabeth Lyons Olivari; that long before the petitioner was born his father and mother were husband and wife and so remained until the death of his mother in the year 1912; that at the time of the conception and birth of petitioner his said father and mother were legally married and at all times maintained the relation of husband and wife; and that petitioner was the only child of said marriage. *891
On April 13, 1934, the appellant filed a supplemental petition setting forth more in detail the names and addresses of certain nephews and nieces of said Vincent J. Olivari, deceased, who were made parties defendant as claimants of the estate of the deceased, and alleging that "prior to year 1903 his said father, Vincent John Olivari, and petitioner's mother, Mrs. Eva Elizabeth Lyons Olivari, entered into a marriage contract in the city of Biloxi, in said county, and immediately thereafter assumed the relation of husband and wife and continued to live together and cohabit as husband and wife from that time until the death of petitioner's mother in the year 1912; that there was no legal impediment existing to prevent the legality of said marriage and said parties at all times maintained the relation of husband and wife from the date of their said marriage until the death of petitioner's mother aforesaid; there was no ceremonial marriage joining petitioner's father and mother as husband and wife, but the contract of marriage entered into between them was in all respects legal and lawful as a common-law marriage under the laws of the State of Mississippi; your petitioner was born of said marriage union and is the only child of said marriage union, and is the only heir at law of his said father, Vincent John Olivari, decd., and as such is entitled to all of the estate, both real and personal, belonging to his said deceased father at the time of his death."
Both the original and supplemental petitions were sworn to by the appellant, and prayed that petitioner be recognized and decreed to be the sole heir at law of Vincent J. Olivari, deceased, and that the administrator be directed to deliver to the petitioner the entire estate of the deceased. The several defendants answered the petitions, and, after a full hearing upon lengthy testimony offered by the respective parties, the court entered a decree dismissing the petitions, and from this decree this appeal is prosecuted. *892
After the conclusion of all the evidence, and during the progress of the arguments of the cause, the appellant filed a motion for leave to amend his supplemental petition by striking the words "prior to year 1903, his said father, Vincent John Olivari, and petitioner's mother, Mrs. Eva Elizabeth Lyons Olivari, entered into a marriage contract in the city of Biloxi in said county," and the words "there was no ceremonial marriage joining petitioner's father and mother as husband and wife, but," and the words, "as a common-law marriage under the laws of the State of Mississippi," and to insert in lieu thereof the words, "in the year 1903 the petitioner's father, Vincent John Olivari, and his mother, Mrs. Eva Elizabeth Lyons Olivari, were married in the State of Alabama."
The court entered a decree overruling this motion, which decree recited on its face that the motion was made after all the testimony and the opening argument for the petitioner had been concluded, and while the argument of counsel for the respondents was in progress, and that it was not called to the attention of the court until after the conclusion of the closing argument for the respondents. The decree further recited that: "The court called on counsel for the petitioner to state in his proposed amendments in what state he desired to aver that the alleged common-law marriage took place, and counsel for the petitioner thereupon stated he could not state in what state the alleged common-law marriage took place and did not think it was necessary for him to state or allege in which state the alleged common-law marriage took place. Counsel for respondents objected to the filing of such a petition on the ground that it came too late and on the further ground that such an amendment would render the petition so vague and indefinite as to be demurrable, and the court thereupon declined to permit the amendment and announced that the court was of the opinion that a common-law marriage between 1892 and 1906 was invalid, and the Supreme *893
Court of Mississippi would follow the decision of the Louisiana Supreme Court in the case of Succession of Marinoni,
The appellant assigns as error the refusal of the court to permit the proposed amendment stated above. Aside from the fact that the amendment was not proposed until after the conclusion of the lengthy testimony and the arguments thereon, and after the court had announced or indicated its decision of the cause, the proposal was not one to amend the petition to conform to the proof offered by the petitioner. The proof offered by the appellant tended to support the original averments of the supplemental petition in reference to a common-law marriage between the father and mother of the petitioner, and the proposed amendments contradicted this proof, and made a wholly different case after the cause had in fact been concluded, and the court committed no error in declining to permit the amendments.
The controlling and decisive question presented by this appeal is whether or not, from the date of the adoption of the Code of 1892 until the adoption of the Code of 1906, common-law marriages contracted in the state of Mississippi were valid.
By the Constitution of 1869, art. 12, sec. 22 thereof, common-law marriages were expressly recognized and validated, but in the Constitution of 1890, this provision was omitted, and when the Annotated Code of 1892 *894 was adopted, section 2864 thereof declared that "a marriage shall not be contracted or solemnized unless a license therefor shall first have been duly issued, and such license shall be essential to the validity of a marriage." Section 2864, Annotated Code of 1892, continued in force without amendment until the adoption of the Code of 1906, when the section was amended and brought forward in the Code of 1906, as section 3249 thereof, by adding to the section, as it appeared in the Annotated Code of 1892, the following language: "But no irregularity in the issuance of or omission in the license shall invalidate any marriage, nor shall this section be construed so as to invalidate any marriage that is good at common law."
This court has not heretofore expressly decided that by section 2864, Annotated Code of 1892, the contracting of common-law marriages was forbidden, but, in several cases, the court has apparently assumed that such marriages contracted after the adoption of the Code of 1892, and prior to the adoption of the Code of 1906, were invalid. In Blanks v. Southern Railway Company,
In Howard v. Kelly,
In Sims v. Sims,
In support of the view that section 2864, Ann. Code 1892, did not prohibit common-law marriages, the appellant relies principally upon the case of Meister v. Moore,
In a very able and exhaustive opinion by Chief Justice O'Niell in the case of the Succession of Marinoni,
The decree of the court below will be affirmed.
Affirmed.