145 Ga. 724 | Ga. | 1916
(After stating the foregoing facts.)
There is some conflict in the authorities on this subject. A leading case holding that; where a marriage was originally illegal, subsequent cohabitation after the impediment had been removed would not suffice to show a lawful marriage, is that of Voorhees v. Voorhees, 46 N. J. Eq. 411 (19 Atl. 172, 19 Am. St. R. 404), and see dissenting opinion of Garrison, J., in 47 N. J. Eq. 315 (14 L. R. A. 366, 24 Am. St. R. 412); Collins v. Voorhees, 47 N. J. Eq. 555 (22 Atl. 1054, 14 L. R. A. 364). But in the later ease
In 1 Andrews’ Am. Law, § 486, p. 627, it is said: “Where the inception is illegal or illicit, the ordinary presumption of continuance applies until there is a change in the circumstances, but-a very slight change will be seized hold of in order to presume the marriage. Where an actual ceremony or an actual contract per verba de presentí is shown, the burden of proof is upon the party attacking the marriage to show its invalidity, and every presumption will be indulged to uphold it.” Flanagan v. Flanagan, 122 Mich. 386 (81 N. W. 258); Schuchart v. Schuchart, 61 Kans. 597 (60 Pac. 311, 50 L. R. A. 180, 78 Am. St. R. 342); Teter v. Teter, 101 Ind. 129 (51 Am. R. 742); North v. North, 1 Barb. Ch. 241 (43 Am. D. 778); Donnelly v. Donnelly’s Heirs, 47 Ky. (8 B. Mon.) 113, 117. See also cases gathered in the note to Chamberlain v. Chamberlain, 3 L. R. A. (N. S.) 244, supra.
In this State it has been held that where two persons entered into a ceremonial marriage and cohabited as husband and wife, although the marriage was invalid because one of them was under the age at which a valid marriage could be contracted, yet if they continued to cohabit as man and wife after he arrived at the age when they could lawfully marry, their relation was that of husband and wife. Smith v. Smith, 84 Ga. 440, 446 (11 S. E. 496, 8 L. R. A. 362). True the impediment there was of a different character, but the ceremonial marriage was invalid. Nothing in Drawdy v. Hesters, 130 Ga. 161 (60 S. E. 451, 15 L. R. A. (N. S.) 190), conflicts with the ruling here made; but the two decisions harmonize, and the former cites approvingly Andrews’ American Law, referred to above.
In the present case, even if Williams knew that his first wife was living at the time of the second marriage, but the second woman whom he married ceremonially did not know of it, and after the death of the first wife they continued their matrimonial cohabitation, why should an unlawful rather than a lawful intent be attributed to the parties after the removal of the impediment?- The declaration of intent to be husband and wife should be treated as continuing, nothing to the contrary appearing; and the continued
It was also urged that there had been an agreement by counsel trying the case that the only issue was as to the identity of the father of the applicant and caveatrix, and that the charge stated above should not have been given. It also appears that there was some discussion as to the legitimacy of the caveatrix. If she were illegitimate, she would have no status as a caveatrix. The court appears to have been correcting any possible misapprehension which might arise on the subject in the minds of the jury. He charged several times that if the William H. Williams who died in Koekmart in 1911 was the father of the applicant for administration, she would be entitled to a verdict in her favor. We do not think that the jury could have been misled by the charge. The controlling question of fact in the case was whether the father of the applicant and of the caveatrix was the same person. The greater weight of the evidence seemed to indicate that he was the same man. But there was some evidence to the contrary. The jury found against that contention, and we can not say that there was not sufficient evidence to sustain their verdict.
Judgment affirmed.