{ "id": 1559370, "name": "Estes v. Merrill", "name_abbreviation": "Estes v. Merrill", "decision_date": "1915-12-13", "docket_number": "", "first_page": "361", "last_page": "370", "citations": [ { "type": "official", "cite": "121 Ark. 361" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "5 Ark. 608", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8727791 ], "opinion_index": -1, "case_paths": [ "/ark/5/0608-01" ] }, { "cite": "64 N. W. 790", "category": "reporters:state_regional", "reporter": "N.W.", "opinion_index": -1 }, { "cite": "95 la. 611", "category": "reporters:state", "reporter": "Iowa", "case_ids": [ 2088728 ], "opinion_index": -1, "case_paths": [ "/iowa/95/0611-01" ] }, { "cite": "22 Ark. 89", "category": "reporters:state", "reporter": "Ark.", "opinion_index": -1 }, { "cite": "67 Ark. 278", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1152589 ], "opinion_index": -1, "case_paths": [ "/ark/67/0278-01" ] }, { "cite": "25 Mo. 259", "category": "reporters:state", "reporter": "Mo.", "opinion_index": -1 }, { "cite": "82 Ark. 76", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1529099 ], "weight": 2, "pin_cites": [ { "page": "135" } ], "opinion_index": -1, "case_paths": [ "/ark/82/0076-01" ] }, { "cite": "36 N. E. 526", "category": "reporters:state_regional", "reporter": "N.E.", "opinion_index": -1 }, { "cite": "12 Oh. St. 553", "category": "reporters:state", "reporter": "Ohio St.", "case_ids": [ 520278 ], "opinion_index": -1, "case_paths": [ "/ohio-st/12/0553-01" ] }, { "cite": "69 S. W. 766", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "24 Ky. Law Rep. 630", "category": "reporters:state", "reporter": "Ky. L. Rptr.", "opinion_index": 0 }, { "cite": "16 L. R. A. (N. S.) 98", "category": "reporters:federal", "reporter": "L.R.A.N.S.", "opinion_index": 0 }, { "cite": "12 Am. St. Rep. 458", "category": "reporters:state", "reporter": "Am. St. Rep.", "opinion_index": 0 }, { "cite": "89 Am. St. Rep. 193", "category": "reporters:state", "reporter": "Am. St. Rep.", "opinion_index": 0 }, { "cite": "147 Ill. 210", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 833770 ], "opinion_index": 0, "case_paths": [ "/ill/147/0210-01" ] }, { "cite": "67 Ark. 281", "category": "reporters:state", "reporter": "Ark.", "opinion_index": 0 }, { "cite": "34 Ark. 518", "category": "reporters:state", "reporter": "Ark.", "weight": 2, "opinion_index": 0 }, { "cite": "114 Ark. 84", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1536300 ], "opinion_index": 0, "case_paths": [ "/ark/114/0084-01" ] }, { "cite": "82 Ark. 76", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1529099 ], "opinion_index": 0, "case_paths": [ "/ark/82/0076-01" ] }, { "cite": "12 Oh. St. 553", "category": "reporters:state", "reporter": "Ohio St.", "case_ids": [ 520278 ], "opinion_index": 0, "case_paths": [ "/ohio-st/12/0553-01" ] } ], "analysis": { "cardinality": 780, "char_count": 17568, "ocr_confidence": 0.423, "pagerank": { "raw": 6.315367569231507e-07, "percentile": 0.958413405569205 }, "sha256": "306adbc267328b25a0e4ee93bf52f7ad185d046f209ab092c3325af5062293fc", "simhash": "1:527ae9ffa8fc8116", "word_count": 3180 }, "last_updated": "2023-07-14T19:35:38.519565+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Estes v. Merrill." ], "opinions": [ { "text": "Kirby, J.\n(after stating the facts.) The law is well settled in this State that when a man and woman \u00a1are legally married the woman 'Continues to-be the -man\u2019s wife, notwithstanding she subsequently contracts a bigamous marriage with another man during his life, and upon the death \u00a1of her lawful husband is entitled, to the widow\u2019s rights in his estate. Evatt v. Miller, 114 Ark. 84.\nIt is likewise settled law that marriages contracted without the \u00a1State, which -are valid by the laws of the State or country in which the same \u00a1are consummated, and the parties then actually resided, are valid in this State (Kirby\u2019s Digest, Sec. 5177) and our courts take judicial 'knowledge of the laws of other States, and that a common law marriage was valid in the State of Ohio when .appellee assumed the marital relation \u00a1and lived with her husband Merrill there. Carmichael v. State, 12 Ohio St. 553; 26 Cyc. 837; Darling v. Dent, 82 Ark. 76.\nThe undisputed testimony of the appellee and others relative to her assuming the marital relation with Merrill and living with him as his wife in Ohio where they were regarded as husband and wife \u00a1and reared a family \u00a1of children, \u00a1established a valid comm or law marriage, unless the parties could not assume such relation because\u2019 of some legal disability, as having a lawful husband or wife undivorced at the time. Of course since appellee was legally married to the deceased, \u00a1she would be entitled to the widow\u2019s rights in his estate, notwithstanding her relation with said Merrill, if her marriage to him was not legal or -bigamous. Her marriage to him wa!s shown by the undisputed teistimony however, \u00a1and Cyc. says: \u201cIf a marriage in fact is established by evidence or admission, it is presumed to be regular and valid, and the burden of (adducing evidence to 'the contrary rests on the party who (attacks it.\u201d 26 Cyc. 877; also Halbrook v. State, 34 Ark. 518; Cash v. Cash, 67 Ark. 281.\nThe burden \u00a1of proof is upon the person attacking the validity of 'a marriage.\nBishop says: \u201cEvery intendment of the law is in favor of matrimony. When a marriage has been .shown in evidence, whether regular or irregular, 'and whatever the form of the proof, the law raises -a strong presumption of its legality; not only casting the burden of the proof on the party objecting, but requiring him throughout, \u00a1and in every particular, plainly to make the fact appear, against the constant pressure of this presumption, that it is illegal and void. \u00a1So that it cannot be \u00a1applied like ordinary questions of fact, which are independent of this \u00a1sort of presumption. \u2019 \u2019 1 Bishop, Marriage and Divorce, Sec. 956; Halbrook v. State, 34 Ark. 518.\nSo strong is this presumption and the law is so positive in requiring the party who asserts the illegality of \u00a1a marriage to take the burden of proving it, that such requirement obtains even though it involves the proving of a negative, and \u00a1although it is shown that one of the parties had contracted a previous marriage, and the existence of the wife or husband of the former marriage at the time of the second marriage is- established by proof, it is not sufficient to overcome \u00a1the presumption of the validity of the second marriage, the law presuming rather that the first marriage has been dissolved by divorce, in order to \u00a1sustain the second marriage: Schmisseur v. Beatrie, 147 Ill. 210; Pittinger v. Pittinger, 89 Am. St. Rep. 193, and authorities cited in note; Potter v. Clapp, 96 Am. St. 322; Boulden v. McIntire, 12 Am. St. Rep. 458; Smith v. Fuller, 16 L. R. A. (N. S.) 98, and authorities in note, page 106; Howton v. Gilpin, 24 Ky. Law Rep. 630, 69 S. W. 766.\nIn order for appellee to succeed in 'this suit, it was necessary for \u00a1her to prove the invalidity of her marriage to Merrill, and in attempting to do so she stated that she employed a lawyer to procure a divorce from Condon, the deceased, and paid him 'his fee; that she signed certain papers \u00a1after 'being sworn, and was later told by her attorney that there had been no objection miade, and the divorce had been granted; that she then married the second husband in the belief that she bad procured .a divorce and afterwards when visited by the first husband, Condon, while she was living with her second husband, told him that she had procured \u00a1a divorce from him and had his approval of 'her conduct, stating she had done right in so doing. She lived with her second husband as his wife for the past thirty years and then 'challenged the validity .of her last marriage to enjoy the estate left by her first husband.\n\u25a0She adduced no other proof of the invalidity thereof than her own statements, except the testimony of the clerk of the divorce court in the county in which Lexington, Ky., is situated, that he was unable to find .after a careful examination of the records, any record of a divorce obtained in a suit of Elizabeth Condon v. John Condon, during the years about the time she stated she made application for, and understood ia divorce had been granted to her.\nThe copy of the letter which she stated was written by her husband\u2019is physician for him, containing a statement that he \u201chad not procured a divorce etc.\u201d, was incompetent and entitled to no weight whatever, the letter not having been shown to. have been .signed by him nor written by his authority and was the veriest hearsay. Her own statement of her actions in attempting to procure a .divorce well nigh established the fact that she had done so in accordance with her statement to her former husband that she had obtained a divorce, and her subsequent conduct in marrying Merrill, and it is barely overcome by the statement of the clerk of the divorce court at Lexington, Ky., since it was not definitely shown \u00a1that her suit for divorce bad been brought in that county and there is no proof whatever that her first husband bad not obtained a divorce from her. His conduct in the making of deeds, and affidavits reciting that he was a single man and Ms statements that such was the fact to the people /among whom he lived, with the testimony that he seemed elated upon his return from one visit to the East and stated that he was now divorced \u25a0and was \u201cfree and straight,\u201d all indicated that he had, /and supported the presumption to that effect.\nThe proof is not sufficient to overturn the second marriage, wMch is presumed to be legal.\nThe finding of the 'Chancellor was not warranted by the testimony and the decree is reversed /and the cause remanded with directions to dismiss the complaint for want of equity.", "type": "majority", "author": "Kirby, J." } ], "attorneys": [ "M. 8. Cobb and A. J. Murphy, for appellant.", "A. Curl, for \u00a1appellee." ], "corrections": "", "head_matter": "Estes v. Merrill.\nOpinion delivered December 13, 1915.\n1. Husband and wife \u2014 subsequent bigamous mabbiage of wife\u2014 dowee. \u2014 W-hen a m-an and woman -are legally married, the woman continues to -be tbe man\u2019s wife, notwithstanding sbe subsequently -contracts a bigamous marriage with -another man during her husband\u2019s life, and upon tbe death of her lawful husband she is entitled to the widow\u2019s rights in his estate.\n2. Conflict of laws \u2014 mabbxages\u2014-validity.\u2014Marriages -contracted outside this \u00a1State, which are valid by tbe laws of tbe -State or country in which tbe same are consummated and where the parties then actually reside, are valid in this State.\n3. -Conflict of laws \u2014 mabbiage outside the' state \u2014 validity\u2014common law mabbiage \u2014 judicial notioe. \u2014 The -courts of this State take judicial knowledge of the -laws -of other States, and that a common law marriage was valid in the State of Ohio, when the appellee assumed the relation, and lived with her husband there.\n4. Maeriage \u2014 vapidity\u2014burden of proof. \u2014 The burden of proof is upon the person attacking the validity of a marriage.\n5. .Marriage \u2014 vapidity\u2014sufficiency of evidence to overthrow. \u2014 A. was married to B. in 1878, and after a separation A. attempted to secure a divorce, which both she and B. thought she had secured. Thereafter A. .intermarried with one M., living with him thirty years, and rearing a family of children. B. then died, leaving property, and in order to share as widow in his estate, A. ' attempted to show that her purported divorce from B. was never , in fact secured, and that her marriage to iM. was therefore invalid. Held, the burden was on A. to show that her marriage to M. was invalid, and that under the evidence adduced she had failed to discharge that burden.\nAppeal from. Garland Chancery Court; Jethro P. Henderson, Chancellor;\nreversed.\nSTATEMENT BY THE COURT.\nElizabeth Merrill brought this isuit for the widow\u2019s interest and dower in the estate of John D. Condon, deceased.\nThe complaint alleges that she was married to said John D. Condon in 1878, in Columbus, Ohio, and that he died on the first day of September, 1910, leaving no children or other descendants or heirs or next of kin; and the owner of certain described lands in Hot Springs, Arkansas, and that he had been the owner and seized and possessed of the certain other lands and had conveyed them to the different defendants claiming to own them, without her having joined in the conveyances and relinquished her dower interest in the lands.\nSeparate answers were filed denying that appellee was the widow of John D. Condon, deceased, and entitled to any interest in 'his estate as such and all the other allegations of the complaint.\nIt was also alleged that said deceased was divorced from the plaintiff before the conveyance of the said land and that in the year 1891 she had intermarried with one Merrill, with whom she continued to live and cohabit as husband and wife and by whom she had four children, two of whom were adults, and that she was at the time of the transfer of said property by the said John D. Condon, the wife of the said Merrill and has no right, title or interest to the widow\u2019s share, or in any other manner, to any of the property of which the said John D. Condon died seized and possessed, or which he may have sold during his life time subsequent to the time of obtaining \u00a9aid decree of divorce, and that said deceased in clearing up the title to certain of his property sold in the city of Hot Springs, had made affidavits that he was a single and unmarried man and his conveyances of all the property in controversy recited such fact.\nThere were also allegations setting up fraud and estoppel as defenses to the suit.\nThe testimony shows that Elizabeth Merrill, nee Sharp, was married to John D. Condon in Columbus, Ohio, in 1878; that they went to Hamilton, Ohio and lived there about 11 months and then went to Lexington, Ky., where they lived about two years. Condon went from there to the west ;and she returned to Columbus, Ohio, and never afterwards lived with \u00a1him as his wife. Two children were born of this marriage; one died in infancy and the girl was killed in a railroad accident in 1903, never having married \u00a1and without 'Children.\nCondon came to Hot Springs, Arkansas, where he acquired and conveyed 'the lands in controversy \u00a1and was reputed to be a single and unmarried man and his conveyances of the property recited that such was the fact.\nSome of the witnesses testified that he went back to Columbus, Ohio, in February or March, in. \u201990 or \u201991 and after returning seemed greatly elated over the fact that a \u2018divorce had been obtained and stated that \u201che was a free man (and straight.\u201d The witnesses stated that he said his wife had married or could' marry again \u00a1any time she wanted to.\nA witness in the abstract business introduced in evidence the .affidavit of J. H. Condon, reciting that he was a citizen of Hot Springs, Arkansas, on the 24th day of March, 1903, when he executed a deed, conveying certain lots, designating them, and \u201cI signed .and acknowledged this deed on March 24, 1903, and was at that time an unmarried man. \u2019 \u2019\nThe 'appellee testified to the fact of the \u00a1marriage and separation as already stated, giving no reason for the parting, \u00a1and that 'Condon died September 2, 1910, at Waukesha, Wis. That .she saw him twice .after the \u00a1separation in Lexington, Ky., first, four or five years thereafter in Columbus, Ohio, \u00a1and that he was there again in January following June 7, 1903, when their daughter Mattie was killed.\nThere were copies of 'two letters which purported to have been written, one by his physician for, but not claimed to have been signed by him, and the other by him to appellee, relative to the disposition of some of his estate and .containing (the one by the physician) 'the statement \u201cno matter what happens, you lare \u00a1still my wife as I never got divorced and never married again, and what I have is yours by law and I want you \u00a1and the children to have it.\u201d The copy of the letter which she stated was signed by J. D. Condon, recited that he had sent by express two diamond rings .and $35, five for each of her girls and $25 for herself. The letter purporting to be written by bis physician was' dated August 17, 1910, the other- was not dated, but she stated the latter part of August she received the express package with the rings 'and money.\nBoth the letters were addressed to Mrs. Elizabeth Merrill, .and signed \u201cYours very truly,\u201d and \u201cTruly yours,\u201d with no other indication of the relationship of the parties except ,as already quoted. Upon being asked whether or not she had obtained a \u00a1divorce from John I). Condon, she answered, \u201cWell, I thought I did.\u201d She .stated that \u00a1she went to Lexington, Kentucky after they had been separated for \u00a1about three years to get \u00a1a \u00a1divorce, having been told that \u00a1she could get it there; went to a lawyer\u2019s office, whose name she did not remember and applied for a divorce, telling \u00a1him she wanted it on the ground of wilful .absence. That he told her she would have to pay $10 down and he would \u00a1see that \u00a1she got a divorce. That she paid the $10 and he drew up some kind of paper that she signed in his office \u00a1and which was not returned to her, and further .as follows:\n\u201cQ. After you signed that paper what next did you do?\nA. Well, I just waited. He told me he would have to advertise .and I just waited. He told me to come in a certain day.\nQ. Well, did you go in on that certain \u00a1day?\nA. Yes.\nQ. When you went in that day, who was in his office?\nA. Some older man than him.\nQ. And when you went into the office, what occurred then?\nA. A young man just talked with the older man and the younger mtan turned to me and said \u2018 \u2018.Miss Sharp, your divorce is granted, there was no objection.\u201d I do not think he gave me any certificate showing that I had a \u00a1divorce, hut he gave me a receipt for $25. During these divorce proceedings I was not in \u00a1any court room, and was only in \u00a1an office like this one. I was sworn. The men there made me raise my hand. I suppose it was \u25a0a Notary Public, but I do not know, \u00a1and do not know whether it was the first time or the last time that I was sworn. I gave no testimony. I made no other effort to procure .a divorce. \u2019 \u2019\nOn cross-examination she said that she first heard ox Condon at Hot Springs .after their \u00a1separation and that she applied for a divorce about three years \u00a1after she went back to Columbus and heard from him .after applying for a divorce and that when he \u00a1saw her he said, he did not know that she applied for a divorce. And to the question \u201cDid you ever tell him that you had gotten a divorce, .answered, \u201cI told him the last time I saw him. That was \u00a1after Mattie was killed in .1903.\u201d\nShe \u00a1assumed the marriage relation with Merrill in 1888 in Ohio and has lived continually with him as his wife ever since .and had four children by him and they had a marriage ceremony pronounced after John 'Con-don\u2019s death. She stated also that she was living with Merrill ias his wife when Condon visited her at Columbus, and answered further as follows:\nQ. Was it not a fact that John D. Condon knew of the relationship between you .and Mr. Merrill?\nA. Yes sir, he did.\nQ. Did you not at that time tell J. D. Condon that you had obtained a divorce and that Mr. Merrill was your husband?\nA. I did tell him but he said I did right to do as I did.\nQ. You told him you had obtained a divorce, did you not?\nA. I did.\nShe stated 'also that she did not apply for a divorce to enaible her to marry Mr. Merrill and did not assume marital relations with him until in the fall of the year after she made application for the divorce.\nThe court found that the plaintiff was the wife of Condon at the time of the conveyances to certain of the defendants in which she did not join and that she was entitled to the widow\u2019s interest .and dower and decreed accordingly and this appeal is prosecuted from the decree.\nM. 8. Cobb and A. J. Murphy, for appellant.\n1. A common law marriage, in Ohio, to Merrill was established. 26 Cyc. 837; 12 Oh. St. 553.\n2. In order to recover, appellee must show that no divorce was ever had from her first husband. She has failed. Every presumption is in favor of the validity of her marriage to Merrill. This presumption has not been overcome. She has utterly failed to prove that her marriage to Merrill was void. The burden was upon her and .she has failed. 26 Cyc. 877; 96 Am. St. 322; 127 111. 379; 147 111. 215; 36 N. E. 526; 82 Ark. 76; 88 Id. 135; 25 Mo. 259; 55 Am. St. 883; 67 Ark. 278; Bish. Mar. & Div. \u00a7 \u00a7 956-7; 22 Ark. 89; 95 la. 611; 64 N. W. 790; 12 Am. St. 458-9, 453, 459 and many others. The case should be reversed and dismissed.\nA. Curl, for \u00a1appellee.\n1. Appellee was still the wife of 'Condon. Her marriage with Merrill was unlawful iand void. 5 Ark. 608-613; 31 Id. 576; 37 Id. 344; 11 Id. 82-94; 31 Id. 678. The findings of \u00a1the chancellor are fully sustained by the evidence 'and tihe decree should be affirmed." }, "file_name": "0361-01", "first_page_order": 385, "last_page_order": 394 }