52 So. 360 | Miss. | 1910
delivered tbe opinion of tbe court.
On the 25th day of October, 1906, Jacob Davis, a member •of appellee order,- died intestate, and the holder of an endowment policy in said order for the sum of $500, payable at his death to his widow or other heirs. The appellant filed a declaration in the court below, alleging that her intestate, Menthia Davis, who died on the 23d of July, 1907, was the widow and the sole heir at law of Jacob Davis, .and prayed for judgment against appellee for the sum of $500, alleged to be due under said policy. Appellee, having filed its affidavit stating that it was ready to pay the $500 as the court might direct, and alleging that “a third party, Mary Davis, a resident citizen of Sharkey county, without collusion with the defendant, has a claim to the subject of .action in the above-styled cause,” an order was entered directing appellee to pay said sum of $500 into court, and that summons issue for the said Mary Davis to appear and maintain or relinquish her said claim thereto. Mary Davis thereupon appeared, propounded her claim to the said $500, claiming that she was the widow and sole heir of the said Jacob Davis. From a judgment awarding said money to the said Mary Davis, this ■appeal is taken.
It appears, from the marriage records of Warren county and from the testimony of the minister of the gospel who performed the ceremony, that the rites of matrimony were celebrated between the said Jacob Davis and Menthia Davis, appellant’s intestate, on or about the 18th day of March, 1899 ; and it further appears from the evidence that they thereafter lived and cohabited together as man and wife until Jacob’s death. On behalf of Mary Davis it was shown, from the records of Washington county and by the minister of the gospel who performed the •ceremony, that the rites of matrimony were celebrated between the said Jacob Davis and Mary Davis in September. 1892. It further appears that, after living together five or six years in Washington and Sharkey counties, Jacob left Mary and moved
One of appellant’s assignments of error is that the court erred in refusing to grant her a peremptory instruction. Her first contention is that the marriage of Mary and Jacob Davis was void, for the reason that Brown Hunter was not shown to be dead at the time same was contracted, and was not shown to have been then absent for a sufficient length of time for his death to be presumed. There is some confusion in the books upon this subject, but it is settled in this state that, where a marriage has been solemnized in due form of law, it will be presumed to be valid, and that this presumption is superior to, and will overcome, the presumption of life. The burden' of showing the invalidity of the marriage is upon the party attacking it. Spears v. Burton, 31 Miss. 555; Wilkie v. Collins, 48 Miss. 511; Railway Co. v. Beardsley, 79 Miss. 417, 30 South. 660. In Wilkie v. Collins the court said: “If no other fact appeared, but simply the marriage, the presumption is in favor of validity. But there is also a presumption in favor of the continuance of life, which is only overcome by a protracted absence for the time specified. In such circumstances, founded on considerations of policy, and in favor of innocence, the presumption in favor of the marriage will prevail, as against that of the continuance of life; and it will devolve upon the disputant of the marriage to overcome it by testimony that the first
But it is said that the law also presumes the validity of the marriage between Jacob and Menthia, and that the burden devolves upon the party attacking’ same — that is, upon Mary Davis — of showing its invalidity; that is, that the former marriage of Mary and Jacob had not been dissolved by death or divorce. This is, of course, true and it was so held by this court in Railway Company v. Beardsley, supra,; but this burden was met by Mary; She herself was living,' and the proof showed, as clearly as a negative can ever be shown, that no divorce had been obtained by her or by Jacob. The evidence shows that after their separation, which occurred in Sharkey county, Jacob lived continuously in Warren county; that she continued to, and now does reside in Sharkey county. A decree of divorce would have to be shown by the record, and under the agreement of counsel the records of those counties show no such decree. It follows, therefore, that no such decree was ever made. If authority is needed for this proposition, it can be found in Schmisseur et al. v. Beatrie, 147 Ill. 210, 35 N. E. 525.
Appellant also contends that the Jacob Davis who was married-to Mary was not identified as the same Jacob Davis who was afterwards married to Menthia. There was sufficient evidence, particularly the testimony of John Bowman, from which the jury could find this fact. There was no error in the other matters complained of.
There is an apparent conflict between the case of Wilkie v. Collins and Railway Company v. Beardsley, supra, relative to the validity of the last marriages therein involved; that is, the ones therein which correspond to the marriage of Jacob and Menthia in the case at bar. An examination of these cases, however, will disclose that in the former case the court seems.
The rule announced in Railway Company v. Beardsley is a correct one, and is supported by the weight of authority.
Affirmed.