{ "id": 8575284, "name": "ROBERT D. STEWART, Administrator c.t.a. of the Estate of Worth Stewart, deceased v. HARRIET S. ROGERS", "name_abbreviation": "Stewart v. Rogers", "decision_date": "1963-11-20", "docket_number": "", "first_page": "475", "last_page": "481", "citations": [ { "type": "official", "cite": "260 N.C. 475" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "120 S.E. 2d 68", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "254 N.C. 729", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627991 ], "opinion_index": 0, "case_paths": [ "/nc/254/0729-01" ] }, { "cite": "33 S.E. 2d 871", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "225 N.C. 156", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8601928 ], "opinion_index": 0, "case_paths": [ "/nc/225/0156-01" ] }, { "cite": "97 S.E. 2d 486", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "246 N.C. 101", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8624533 ], "opinion_index": 0, "case_paths": [ "/nc/246/0101-01" ] }, { "cite": "185 U.S. 308", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 3624553 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/us/185/0308-01" ] }, { "cite": "44 S.E. 2d 73", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "227 N.C. 691", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627428 ], "opinion_index": 0, "case_paths": [ "/nc/227/0691-01" ] }, { "cite": "286 F. 2d 480", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 2000156 ], "opinion_index": 0, "case_paths": [ "/f2d/286/0480-01" ] }, { "cite": "234 S.W. 216", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "192 Ky. 654", "category": "reporters:state", "reporter": "Ky.", "case_ids": [ 4536879 ], "opinion_index": 0, "case_paths": [ "/ky/192/0654-01" ] }, { "cite": "198 P. 643", "category": "reporters:state_regional", "reporter": "P.", "opinion_index": 0 }, { "cite": "52 Cal. App. 300", "category": "reporters:state", "reporter": "Cal. App.", "case_ids": [ 2075278 ], "opinion_index": 0, "case_paths": [ "/cal-app/52/0300-01" ] }, { "cite": "62 A 2d 886", "category": "reporters:state_regional", "reporter": "A.2d", "opinion_index": 0 }, { "cite": "2 N.J. Super. 214", "category": "reporters:state", "reporter": "N.J. Super.", "case_ids": [ 368461 ], "opinion_index": 0, "case_paths": [ "/nj-super/2/0214-01" ] }, { "cite": "39 N.W. 369", "category": "reporters:state_regional", "reporter": "N.W.", "opinion_index": 0 }, { "cite": "72 Wis. 170", "category": "reporters:state", "reporter": "Wis.", "case_ids": [ 11282791 ], "opinion_index": 0, "case_paths": [ "/wis/72/0170-01" ] }, { "cite": "97 U.S. 628", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 3375319 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/us/97/0628-01" ] }, { "cite": "113 S.E. 661", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "184 N.C. 154", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11269546 ], "opinion_index": 0, "case_paths": [ "/nc/184/0154-01" ] }, { "cite": "32 S.E. 544", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "124 N.C. 154", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8658238 ], "opinion_index": 0, "case_paths": [ "/nc/124/0154-01" ] }, { "cite": "35 N.C. 333", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11275181 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nc/35/0333-01" ] }, { "cite": "33 N.C. 160", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11274456 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nc/33/0160-01" ] } ], "analysis": { "cardinality": 867, "char_count": 16297, "ocr_confidence": 0.385, "pagerank": { "raw": 1.7228862757363958e-07, "percentile": 0.7042065000700813 }, "sha256": "2fb58705c0f00a27c76f154658accaeb56154dc64189d60dce743d38aa1de01d", "simhash": "1:89c2b52dbd3f9043", "word_count": 2792 }, "last_updated": "2023-07-14T17:49:29.885963+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "ROBERT D. STEWART, Administrator c.t.a. of the Estate of Worth Stewart, deceased v. HARRIET S. ROGERS." ], "opinions": [ { "text": "DeNNy, C.J.\nThe determinative question on this appeal is whether or not the marriage of (the defendant to Thomas S. Rogers on 30 May 1956, is a valid marriage.\nIn the .case of Spencer v. Moore, 33 N.C. 160, Ruffin, C.J., speaking for the Coiurt, \u00a9aid: \u201cThe rule as to the presumption of death is that it arises from the absence of the person from his domicile without being heard of for seven years. But it seems rather to he the current of the authorities that the presumption is only that the person is then dead, namely, at the and of \u00a9even year\u00a9; 'but that the presumption does not extend to the death having occurred at -the end or any other particular-time within that period, and leaves it to be judged of a\u00a9 a question of fact, according to the circumstances, -which may tend to satisfy the mind that it was at an earlier or later day.\u201d\nIn Spencer v. Roper, 35 N.C. 333, the same Court adopted and quoted the identical language set out above, and added: \u201cSo much of the opinion \u2019in the above .case is .transferred to this, because what wa\u00a9 then but intimated we now express a\u00a9 our confirmed opinion. The cases governing this were then examined and referred to. We have again examined them, and after full deliberation see no cause .to- alter o-ur opinion.\u201d Bragaw v. Supreme Lodge, 124 N.C. 154, 32 S.E. 544; Beard v. Sovereign Lodge, 184 N.C. 154, 113 S.E. 661. The cases of Spencer v. Moore, supra, and Spencer v. Roper, supra, have been cited with approval in the following jurisdictions. Davie v. Briggs, 97 U.S. 628, 24 L. Ed. 1086; Whiteley v. Equitable Life Assur. Soc., 72 Wis. 170, 39 N.W. 369; Lukens v. Camden Trust Co., 2 N.J. Super. 214, 62 A 2d 886; Solomon v. Redona, 52 Cal. App. 300, 198 P. 643; Glassock v. Weare, 192 Ky. 654, 234 S.W. 216; Tobin v. United States Railroad Retirement Board (U.S.C.A. 6th), 286 F. 2d 480.\nIn Trust Co. v. Deal, 227 N.C. 691, 44 S.E. 2d 73, this Court said: \u201cWhen in a judicial proceeding it i\u00a9 necessary to ascertain as a material fact whether a person is living or dead, the fact of death may be established by circumstantial evidence.\n\u201c \u2018The absence of a person from his domicile, without being heard from \u00a1by those who would !be expected to hear from him if living, raises a presumption of his death \u2014 i.e., that he is dead .at the end of seven years.\u2019 Carter v. Lilley, ante, 435, and cited cases.\n\u201cThe mere absence of a person from a place where his relatives reside but which is not 'bis own place of residence, without being heard from by them for a period of seven years, is not sufficient to create a presumption. 25 C.J.S., 1058-9. It is the proof of the comitinued and unexplained absence of a person from his home or place of residence without any intelligence from or concerning him for the required period which gives rise to the application of filie rule. 16 A. J., 19; 25 C.J.S., 1057.\n\u201cThis rule of evidence is a procedural 'expedient sired by necessity anid is based \u00a1on the generally accepted fact that a normal person will not, if .alive, remain from his home for seven years without communicating with family or friends. 16 A.J., 19.\n\u201cThe strength of this presumption varies with the circumstances; its force depends on the diameter of the person, hi\u00a9 attachment to his home, and the circumstances under which he left. 25 C.J.S., 1056, 1061; 16 A.J., 21.\u201d\nLikewise, -in Fidelity Mutual Life Association v. Mettler, 185 U.S. 308, 46 L. Ed. 922, the Supreme Court of the United States approved the following instruction to the jury: \u201cWhile death may be presumed from the absence, for seven year\u00a9, of one not heard from, where news from him, if living, would probably have been had, yet this period of seven years during which the presumption of continued life runs, and at the end of which it is presumed that life ceases, may be shortened by proof of such facts and circumstances connected with the disappearance of the person whose life is the subject of inquiry, and circumstances connected with hi\u00a9 habits -and customs of life, a\u00ae, submitted to the test of reason 'and -experience, would \u00a1show to- your satisfaction by a preponderance of the evidence -that the person was dlead.\u201d (Emphasis added.)\nThe evidence adduced in the trial below Shows a complete lack of motive on the part of Worth Stewart to disappear and abandon his business and family.\nWe hold that the evidence was sufficient to have supported a finding that Worth Stewart died soon \u2022after he left Jacksonville, Florida, on 26 February 1953, at approximately 11:40 a.m. He flew a small plane into weather conditions constituting a- hazard to a pilot o.f this experience flying a plane equipped as his was; his intended path of flight would have carried him along the coast line for >a considerable distance, at a time when\u2019 the wind was of such velocity and direction as to. blow him out to sea; and it has been determined that he did not land .at or communicate with any airport within the flying range of his plane. The search for him was thorough and exhaustive. From these facts, the trial judge found that Worth Stewart was dead on 30 May 1956, over three years after his disappearance.\nWhere facts are found -by the court, if supported by competent evidence, such findings are as conclusive ais the verdict of a jury. Goldsboro v. R.R., 246 N.C. 101, 97 S.E. 2d 486, and cited cases.\nThere is 'another presumption involved in this case. This is tiie presumption that a second marriage is valid. There can be no question about the performance of a second marriage ceremony in the instant case. The plaintiff alleged in paragraph 5 of (his complaint, \u201cThat, * * * the defendant participated in a purported marriage ceremony with Thomals S. Rogers on the 30th day of May, 1956, and has 'lived as wife with the said Thomas S. Rogers since that date.\u201d The defendant in answering this paragraph of plaintiff\u2019s complaint said, \u201cThat it is admitted that the defendant wais married to Thomas S. Rogers on the 30th day of May, 1956, 'and since that time has lived with him -.ais his wife.\u201d\nIn Kearney v. Thomas, 225 N.C. 156, 33 S.E. 2d 871, the plaintiff, as in tire instant case, was seeking to have a second marriage declared null and void. This Court .said: \u201cWe are of 'opinion that when the plaintiff attempts to. assert a property right which i\u2019s dependent upon the invalidity of a marriage, he must, as the attacking party, make good his cause by proof. Upon proof that -a marriage ceremony took place, it will be presumed that it was legally performed and resulted in a valid marriage. Chamberlayne, Trial Evidence, p. 432, sec. 475. * i:' *\n\u201cWe find in Chamberlayne\u2019s Trial Evidence, supra, p. 376, sec. 416: \u2018A second or subsequent marriage is presumed 'legal until the contrary be proved, and ihe who- asserts \u00a1its illegality must prove it. In such case the presumption of innocence and morality prevail over the presumption of the continuance of the first or former marriage.\u2019 This statement is so abundantly supported by well considered cases, so consonant with reason, and so consistent with analogous practices, a\u00ae to justify its adoption. See, also1, Jones on Evidence, Civil Cases, sec. 14, land oases cited.\u201d\nThe appellant contends that the case of Williams v. Williams, 254 N.C. 729, 120 S.E. 2d 68, hais eliminated the Kearney case as authority for the defendant\u2019s position. We do. not so- hold.\nWe hold that the findings of fact by the trial judge in the hearing below are supported by competent evidence. Furthermore, there was no evidence offered by the plaintiff tending to dhow that the marriage of Thomas S. Rogers on 30 May 1956, is invalid.\nThe judgment of the court below is, in all respects,\nAffirmed.", "type": "majority", "author": "DeNNy, C.J." } ], "attorneys": [ "Richard A. Cohan for plaintiff appellant.", "Blakeney, Alexander & Machen for defendant appellee." ], "corrections": "", "head_matter": "ROBERT D. STEWART, Administrator c.t.a. of the Estate of Worth Stewart, deceased v. HARRIET S. ROGERS.\n(Filed 20 November 1963.)\n1. Heath \u00a7 2\u2014\nThe continuous and unexplained absence of a person from his domicile for a period of seven years, without being heard from by those who would naturally expect to hear from him if he were alive, raises a presumption that .such person is dead, and the period at which it -is presumed that life ceased may be shortened by proof of facts and circumstances from which a jury may reasonably infer, by the test of reason and experience, that death ensued at an earlier date.\n2. Same; Marriage \u00a7 2\u2014 Evidence held to support finding that missing person was dead some three years after disappearance.\nEvidence tendimg to show that a person alone in a flight on a return (trip to Ms home in this .State was not qualified -or licensed to pilot a plane in had weather, -that there was a storm in his path of flight, that his intended path of flight was along the .coast line for a considerable distance, that .the wind was of such velocity and direction as to blow Mm out to sea, that he did not land at or communicate with any airport within the flying range of his plane, 'that thorough and exhaustive searches were made for him along the line of flight, etc., and that he had not been heard from since he began his journey, is held sufficient to sustain a finding that such person was dead at the time of the remarriage of his widow more \u2022than three years after his disappearance.\n3. Trial \u00a7 57\u2014\nIn a trial by the court under agreement of (the parties, the findings of the court are as conclusive as the verdict of a jury when the findings are supported by competent evidence.\n4. Marriage \u00a7 2\u2014\nA second or subsequent marriage is presumed legal until the contrary is proved, and the burden is upon the person asserting a property right based upon the invalidity of the second marriage to prove its invalidity.\nAppeal iby plaintiff from Mallard, J., 12 August 1963 Schedule \u201cC\u201d Session of MecKleNbueg.\nIt wiais .agreed- 'amid stipulated by /the parties to this .action that the trial judge should conduct the trial without a jury, hear the evidence, and reoder judgment upon his findings of fact and. conclusions of law as (authorized by G.S. 1-185.\nThe defendant .and Worth Stewart were married on 11 September 1932. Thereafter they lived together as husband and wife until 26 February 1953.\nThere were two 'children born of the marriage between the defendant and Worth Stewart. Both of these children, Robert D. Stewart, the plaintiff, and 'Ga.be S. Stewart, .are now living .and are sui juris.\nDuring the period of this' marriage, Worth Stewart accumulated substantial properties', including cash, atocles in closely held theatre corporations, partnership .interests in theatre oompaniefe, real estate held (by .the entireties with the defendant, wd policies o\u00ed insurance upon his life payable to .the defendant as named beneficiary.\nAH the evidence tends to dhow that Worth Stewart had no. marital, financial, or health problems of any consequence. He disappeared under tire 'circumstances hereinafter set out on 26 February 19-53. The evidence raise\u00ae no inference or suggestion of any motive on the part of Worth Stewart to leave his family, and business. Although he had over $25,000 in his personal 'checking .account, 'he had no moire \u00a1than $300.00 in cash when he disappeared. Furthermore, he never drew any checks on this account after his disappearance.\nWorth Stewart owned a single-engine Beech Bonanza \u00a1airpl-ane which he sometime\u00ae flew himself, \u00a1although he wais neither qualified nor licensed to fly in tod weather, and hi\u00ae plane was not equipped for operating in inetrument-weather conditions.\nOn 21 February 1953, Worth Stewart departed from Charlotte, North Carolina, \u00a1with two companion\u00ae aboard this plane, with the intention of flying to an airfield near Fort Pierce, Florida. On the way down, however, they encountered bad weather and when it became apparent .that Stewart was having considerable \u00a1difficulty in navigating \u00a1and handling the \u00a1aircraft under these conditions, his friends prevailed upon \u00a1him to land .at Jacksonville, Florida, and from \u00a1there they proceeded to their \u00a1destination by commercial airliner.\nAfter several \u00a1days of fishing, Worth Stewart announced his intention \u00a1to return \u00a1to his family and 'business in Charlotte, North Carolina. He had hi\u00ae plane flown to him from Jacksonville, and on the return trip he stopped \u00a1over at Jacksonville to drop off the pilot who had flown the plane to him. He then left Jacksonville, alone, at \u00a1approximately 11:40 a.m., 26 February 1953. Although the weather wa.s clear' \u00a1at Jacksonville, there was \u00a1a broad \u00a1arc oif turbulent weather extending across his intended path \u00a1of flight. Nothing \u00a1ha\u00ae \u00a1been heard of Worth Stewart isimice he left Jacksonville. Extensive \u00a1air \u00a1and ground search along his intended path of flight turned up mo trace of him or his plane. Civil Air Patrol units \u00a1in North Carolina, South Carolina, Georgia and Florida, \u00a1including units from the United States Marine Air Wing, the United State\u00ae Navy, and Air Rescue Service from Elgin Air Force Base 'in Florida, flew 380 search missions in an effort to locate Worth Stewart and his plane. The search began on 27 February 1953 and continued f-or eleven days. Likewise, all \u00a1airports were 'checked within the possible flying range of the Beach Bonanza Aircraft piloted by Stewart, and it was determined that he never lauded at or contacted any of these airports.\nThe defendant managed Worth Stewart\u2019s property and business ais his guardian until 29 May 1956. On that date she was .appointed collector of his estate and continued \u00a1to manage his affair\u00ae until 9 September 1960.\nOn 30 May 1956, the defendant and Thomas S. Rogers were married. On 15 September 1960, the will of Worth Stewart wais \u00a1admitted to probate after it had been judicially determined that Worth Stewart was dead. The plaintiff, son \u00a1of Worth Stewart, was appointed administrator c.t.a. The defendant diisseruted from the will on 31 October 1960. Subsequently, a partial distribution was made to' the defendant with the express understanding that it would be returned to the estate if defendant had forfeited her right to- islhare in the estate by her remarriage.\nPlaintiff, as administrator, brings this action .to recover such partial distribution on the ground that the defendant\u2019\u00ae remarriage before Worth Stewart wa\u00ae 'declared dead is equivalent to an elopement with an adulterer land bans the defendant\u2019s right share in the estate.\nFrom the foregoing evidence the court found -a\u00ae a fact, among other things, that \u201cThere is mo evidence that, at the time of the defendant\u2019s marriage to Thomas S. Rogers on May 30, 1956, Worth Stewart was alive, all of the cincumstance\u00ae isurrounding his disappearance indicating that ihe did not continue in life to that date, and for the purpose of resolving the issues before tire court in this ease, he is considered ais having died prior to May 30, 1956.\u201d\nThe court below concluded as a matter of law that, \u201cThe defendant was lawfully married to' and residing with Worth Stewart a\u00ae his wife at the time of his 'disappearance, and .the defendant has never abandoned the said Worth 'Stewart, has never refused to- live with him, has never been' divorced from him, and has never eloped or committed any other act which would, under any law of this State, bar her from sharing in the estate of Worth Stewart a\u00ae his surviving spouse.\u201d\nThe court further concluded that, \u201cThe defendant\u2019\u00ae marriage to Thoma\u00ae S. Rogers on May 30, 1956, wa\u00ae lawful, -and the defendant has not forfeited, either by said marriage or by living with Thomas S. Rogers a\u00ae his wife since said marriage, her right to dissent from the will of Worth Stewart, to share in the distribution of the estate of Worth Stewart as his surviving spouse * *\nUpon the facts found and the conclusions of law drawn therefrom, the count below ordered, adjudged and decreed that (1) the plaintiff take nothing of 'the defendant in this action; (2) that the defendant is the owner land entitled to' the proceeds of the policies of insurance described in the complaint; (3) that the defendant as surviving tenant by the entirety ie the owner of the real estate described in the complaint; (4) that the defendant i\u00ae entitled to share, as dissenting widow, in the estate of Worth Stewart; and (5) that the defaidant recover her costs in this action.\nThe plaintiff .appeals, assigning error.\nRichard A. Cohan for plaintiff appellant.\nBlakeney, Alexander & Machen for defendant appellee." }, "file_name": "0475-01", "first_page_order": 515, "last_page_order": 521 }