91 Ala. 591 | Ala. | 1890
The important question in this case is to determine whether Gracy Thompson or Roanna Thompson was the lawful wife of Allen Thompson at the time of his death. In the year 1838 Allen Thompson married Gracy Thompson, with whom he lived as his wife until some time in the year 1848, or 1849, during which time Robert L. Thompson and other contestants were born, and are their legitimate children. In 1852, or 1853, Allen Thompson, in Marion county, Alabama, married Roanna Thompson, “according to the forms of law,” with whom he lived as such until his death, which occured in said county, Nov. 10th, 1887. “In the.State of Arkansas, at the November term, in the Jackson County Court of said State, on the chancery
The entire record and proceedings of the court granting the divorce were read in evidence, and “ then, by agreement and consent of both parties, contestants read the following evidence.” Here follow the facts as stated by the court in the case of Thompson v. State, on pages 14 and 15, 28 Alabama Reports. We hold this agreement consents and admits the facts as there stated shall be considered as legal evidence in the present case, and are included in the words, “ upon this evidence the'court overruled the objections of contestants, and decreed the homestead and personal property to Roanna Thompson and her minor children.”
Jurisdiction over the question of divorce must be allowed to the courts of the domicil, and if the husband acquires a new domicil, as a consequence, he must acquire the right of having his matrimonal status determined by the laws and judicial tribunals of his new domicil. The right of a court, when authorized by the statute of the State, to proceed against a non-resident defendant by publication, results necessarily from the existence of the jurisdiction, and a denial of.the power to thus proceed would be fatal to the jurisdiction.—Thompson v. State, 28 Ala. 20. A divorce thus obtained, in the absence of fraud, or misconduct, is valid everywhere.—Cheely v. Clayton, 110 U. S. 701. If a party remove to another State with no animus manendi, and merely for the purpose of obtaining a divorce, and intended to remain no longer than was necessary to accomplish his purpose, such a divorce would be invalid in this State.—28 Ala., supra.
“The record of the divorce suit shows that the wife was a •defendant; that she was proceeded against as a non-resident, by publication in a newspaper; that the publication was duly made; that plaintiff was a citizen of the State, and had been a resident of the State of Arkansas for one year next preceding the petition.” It must be presumed that the foreign court had jurisdiction of the subject-matter, until the contrary appears.—2 Brick. Dig. 142, and authorities cited.
The decree of the court granting the divorce was rendered in Nov., 1851. Thompson married agáin not later than 1853, and had lived with his second wife Roanna, for thirty-four years at the time of his death. In the case of Wilson v. Holt, 83 Ala. 540, it was held: “Almost any reasonable presumption of fact will be conclusively indulged, in order to sustain
The proceedings of the Probate Court show that letters of administration were issued; the appointment of appraisers-with proper directions; the return of the inventory and appraisement of the personal property, and the report of the appraisers, and also the report and appraisement of the homestead of the-decedent occupied by him at the time of his death, with a full description of the same, with its value, and that it exceeded in area one hundred and sixty acres. The provisions of the law in regard to the setting apart of exemptions of personal property and a homestead for the widow and minor children were observed, and substantially followed.
This case is unlike those where proceedings are had under sections of the Code 2562 and 2563, to have exemptions set apart to the widow and minor children. In such cases, if it appears the homestead exceeds one hundred and sixty acres, the Probate Court has no jurisdiction to make the order appointing commissioners to appraise and set apart the exemption upon the application of the widow, no letters of administration on the estate having been issued.—James v. Clark, 89 Ala. 606.
The orders and proceedings of the court to have the homestead set apart to the widow and minor children, are none the less legal because the widow filed her petition in less time than twenty days after grant of administration, or because she mistook the sections of the Code under which she was entitled to proceed for exemptions. The jurisdiction of the Probate Court was complete, without the aid of the objectionable petition of the widow. The appointment of the administrator and appraisers, the report of the appraisers showing the real estate, including the homestead, of which decedent was seized at the time of his death, the subsequent petition of the widow to have the homestead set apart, the appointment of commissioners for this purpose, the allotment of the homestead, and report thereof by the commissioners, and the decree of the
Affirmed.