Smart v. Whaley

| Miss. | Jan 15, 1846

Mr. Justice Thacher

delivered the opinion of the court.

Appeal from the probate court of Pike county.

Jane Whaley applied to the probate court for dower in certain real estate, alleging that she was the widow of George Whaley, deceased. The appellant filed his petition in the said probate court, setting forth that he was the owner and possessor of said real estate, by purchase from the grantee of said George Whaley, that said Jane was not the lawful wife of said George at the time of his decease, and praying to be made a party defendant to her application for dower in said real estate. Upon an order of said court, the appellant was made party defendant to the petition, and at the hearing, the following facts were disclosed by the evidence: That the said George Whaley was married to one Margaret Field, in the state of Tennessee, in the year 1809 or 1810, and that she was living in said state up to the last of the year 1814, or the first of the year 1815; that the said George Whaley was married to the appellee in the state of Mississippi in the month of February, of the year 1814; that the deceased and the appellee lived together as man and wife for twenty-five or thirty years, except a portion of the time, when they had separated; and that shortly after the marriage of the appellee with the said George, she acknowledged that she knew that she was not his lawful wife, and that she knew before, and at the time of her marriage, that the said George had a lawful wife living; and that very recently, she had ac*313knowledged that she knew that she was not the lawful wife of said George, because he had a lawful wife then living.

The probate court allowed the application for dower, whereupon the appellant brought the case into this court.

The marriage of George Whaley to Margaret Field seems to be sufficiently established by the evidence, and also that she was living at the period when the said George married the appellee in this state. In such a state of case the second marriage was null and void, and the appellee was not the lawful wife of the said George Whaley at the time of his death, and consequently was not entitled to dower in his estate.

If the validity of the marriage should hereafter be brought in question in any mode, the decision of this case in the probate court should not prejudice the rights of parties.

Judgment reversed.