LAMAR, ET AL. v. SHOEMAKE, ADMR., ETC

Citation Codes

Equivalent Citations

citation codes

Docket Number

No. 41359.

Judges

ETHRIDGE, J.

See more information ...

Smart Summary

Please sign up to generate summary.

LAMAR, et al. v. SHOEMAKE, ADMR., ETC.

Barnett, Jones Montgomery, Jackson; E.L. Lamar, Pittsboro, for appellants.

I. The Court erred in holding that the burden of proof was on appellants instead of holding that the burden of proof was on the appellees, the proponents of the common-law marriage.

II. Burden of proof is on proponents of marriage. There is no presumption of law that any persons are married, and the burden of proving a marriage rests upon the party asserting it, and this is particularly true where a common-law marriage is asserted. Bracey v. Bracey, 148 Miss. 688, 114 So. 750; Floyd v. Calvert, 53 Miss. 37; Hill v. United Timber Lumber Co. (Miss.), 68 So.2d 420; Howard v. Kelly, Sheriff, 111 Miss. 285, 71 So. 391; Martin v. Martin's Estate, 217 Miss. 173, 63 So.2d 827; Minor v. Higdon, Admr., 215 Miss. 513, 61 So.2d 350; Ridley v. Compton, 215 Miss. 532, 61 So.2d 341; Sykes v. Sykes, 162 Miss. 487, 139 So. 853; United States F. G. Co. v. Smith, 211 Miss. 573, 52 So.2d 351; United Timber Lumber Co. v. Alleged Dependents of Hill (Miss.), 84 So.2d 921; Wilkie v. Collins, 48 Miss. 496; Secs. 507, 1453, 1499, 1690, Code 1942; 32 C.J.S., Secs. 434(c), 435 pp. 67, 68.

III. The Court was manifestly wrong in holding that the proof in this case was sufficient to establish a common-law marriage and committed reversible error in so holding.

A. What is required to establish a common-law marriage? Barton v. State, 165 Miss. 355, 143 So. 861; Brooks v. Brooks, 145 Miss. 845, 111 So. 376; Dickerson v. Brown, 49 Miss. 357; Rundle v. Pegram, 49 Miss. 751; Sims v. Sims, 122 Miss. 745; Yazoo M.V.R. Co. v. Jones, 114 Miss. 787, 75 So. 550; Constitution 1890; Ch. 239, Laws 1956; 35 Am. Jur., Sec. 5 p. 182; 55 C.J.S., Secs. 1a, 1b, 18a, 18b pp. 806, 839, 840.

B. The proof is insufficient to establish a common-law marriage. Reed v. Charping, 207 Miss. 1, 41 So.2d 11; Smith v. Cook, 213 Miss. 876, 58 So.2d 27; Teague v. Brown, 199 Miss. 262, 24 So.2d 726.

Horan Horan, Water Valley; Paul M. Moore, Calhoun City, for appellees.

I. In this case the appellant charged that the administrator and his lawyers fraudulently withheld information from the Court. That the appellants with a mother, sister, and brothers, are the heirs of James C. Lamar and thereby perpetrate a fraud upon the Court. In such case the burden of proof was on appellant to show by clear proof which is more convincing than a mere preponderance of evidence; and that proof of fraud must be clear and convincing. Martin v. Gill, 182 Miss. 810, 181 So. 849; New York Life Ins. Co. v. Gill, 182 Miss. 815, 182 So. 109; Parker v. Leubenhein, 215 Miss. 373, 60 So.2d 815.

II. Mrs. Gatha Lamar, Hugh Dane Lamar, Alice Becie Lamar Scott, and Paul Lamar, claiming to be the mother, sister, and brothers of the deceased James C. Lamar filed their answer to the plea of interpleader by the administrator and then made their answer a cross-bill and designated themselves as cross-complainants and made the administrator, W.J. Shoemake, and Mrs. Lometa Marie Lamar, widow of the deceased, and her child, Cathy Marie Lamar, the daughter of the deceased, cross-defendants, and then filed an application or motion for a bill of particular and did not waive the oath in their cross-bill or bill of particulars thereby requiring the cross-defendants Mrs. Lometa Marie Lamar to answer and furnish a bill of particulars under oath. In such case the motion required an answer under oath compelling Mrs. Lometa Marie Lamar to testify. And hence waiving the statutory incompetency of Mrs. Lometa Marie Lamar. The answer was responsible and it was not affected by the incompetency of the witness. Birchett v. Hundermark, 145 Miss. 683, 110 So. 237; Fant v. Fant, 173 Miss. 472, 162 So. 159; Money v. Dorsey, 15 Miss. 15; Saffold v. Horne, 71 Miss. 762, 15 So. 639; Stuckey v. Sallis, 221 Miss. 698, 74 So.2d 749; Sec. 1294, Code 1942; Griffith's Mississippi Chancery Practice (2d ed.), Sec. 364.

III. The sheriff of Calhoun County, W.J. Shoemake, who knew practically everyone in Calhoun County, filed his petition praying for letters of administration upon the estate of James C. Lamar, deceased, and named as his only heirs at law his widow, Mrs. Lometa Marie Lamar and their infant child, Cathy Marie Lamar. On this petition, W.J. Shoemake was appointed administrator of this estate and letters of administration granted to him. He obtained a decree authorizing him to bring suit against the parties alleged to be liable for the death of the decedent, and named Mrs. Lometa Marie Lamar as his widow and her child as the only heirs at law of the decedent, and authorizing him to bring the suit. Later, he filed a bill asking permission to withdraw the suit and compromise the claim and still charging that Lometa Marie Lamar and Cathy Marie Lamar were the only heirs at law of this decedent. And then filed his petition praying for authority to pay his solicitor his fee and still charged that Lometa Marie Lamar was the widow and Cathy Marie Lamar was the child and only heirs at law of James C. Lamar, deceased, and the Chancery Court Chancellor signed decrees granting the relief prayed for, decreed that Lometa Marie Lamar was the widow and Cathy Marie Lamar the child and only heirs at law of the decedent, James C. Lamar. In such case the Court will resolve every reasonable presumption in favor of the validity of the marriage between Lometa Marie Moore Lamar and the decedent, James C. Lamar. As a general rule the law favors marriage and will resolve every reasonable presumption in favor of the validity thereof. If a marriage in fact is established by evidence or admissions, it is presumed to be regular and valid and the burden of abducing evidence to the contrary rests on the party who attacks it, even though it involves the proving of a negative. Sykes v. Sykes, 162 Miss. 487, 139 So. 853; Walker v. Matthew, 191 Miss. 489, 3 So.2d 820.

IV. In this case by solemn decree of the Court, it was adjudged that the decedent, James C. Lamar, left surviving him his widow, Mrs. Lometa Marie Lamar and his daughter, Cathy Marie Lamar as his only heirs at law. In such case all presumptions of law are in favor of correctness of a judgment or decree. It imports the judgment's validity and is conclusive in character. Brian v. Davidson, 25 Miss. 213; Cotton v. Harlan, 124 Miss. 691, 87 So. 152; Duncan v. McNeill, 31 Miss. 704; McKinney v. Adams, 95 Miss. 832, 50 So. 474; Martin v. Miller, 103 Miss. 754, 60 So. 772; Stevens v. Mangum, 27 Miss. 481; Vicksburg Grocery Co. v. Brennan (Miss.), 20 So. 845.

V.W.J. Shoemake, sheriff of Calhoun County, had been duly appointed, qualified, and is the acting administrator of the estate of James C. Lamar, deceased. All the proceedings in his application for appointment, authority to bring suit, to compromise and disburse money from this estate was authorized by solemn decree of the Court based on the fact that Mrs. Lometa Marie Lamar is the widow and her child Cathy Marie Lamar is the daughter of the deceased James C. Lamar. This action was a petition or cross-bill to vacate, set aside and cancel that appointment and undo all the acts heretofore performed, authorized and confirmed by solemn decree of the Court. In such case the burden of proof is on the appellants. Mims v. Johnson, 179 Miss. 403, 92 So. 577; Sheehan v. Kearney, 82 Miss. 688, 21 So. 41, 35 L.R.A. 102; Williams v. Moorehead, 116 Miss. 653, 77 So. 658.

1. Marriage — common-law marriage — evidence — established parties contracted common-law marriage prior to enactment of statute abolishing such marriages.

Evidence, including evidence that man and woman, beginning in September 1951, cohabited together for a number of years as husband and wife and held themselves out as such, and that their families recognized them as being married and their children as being legitimate, was sufficient to show that man and woman had mutually agreed to live together as husband and wife and to assume the resulting duties and rights, so that they had contracted a common-law marriage prior to enactment of statute abolishing such marriages. Sec. 465.5, Code 1942.

2. Appeal — common-law marriage — Chancellor's ruling shifting burden of proof harmless, where Chancellor correctly found from great weight of evidence that claimants had met burden of establishing existence of common-law marriage.

Where Chancellor correctly found, from all evidence, that woman and her children had met their burden of establishing existence of common-law marriage of woman and decedent, and such finding was supported by great weight of the evidence, any error in Chancelor's ruling that certain ex parte orders created a prima facie showing that the woman was the widow and that the burden of going forward with the evidence to rebut it was upon decedent's mother and his sister and brothers who were claiming his estate as the next of kin was harmless.

3. Interpleader — each claimant has burden of establishing his own claim by a preponderance of evidence.

In an interpleader proceeding, both groups of claimants must recover on the strength of their own title rather than on weakness of that of the adversary, and each claimant has burden of establishing his own claim by a preponderance of evidence.

4. Marriage — burden of proving common-law marriage upon party asserting it.

The burden of proving a common-law marriage is upon the party asserting it.

Headnotes as approved by Ethridge, J.

ETHRIDGE, J.

(Hn 1) The principal question is whether there was any substantial evidence to support the finding of the chancery court that appellee, Lometa Marie Moore Lamar, contracted a common-law marriage with James C. Lamar before his death in 1957.

This issue was tried on a bill of interpleader filed in the Chancery Court of Calhoun County by W.J. Shoemake, administrator of the estate of James C. Lamar, deceased. The administrator interpleaded certain funds belonging to the estate and received by him in the settlement of tort claims against third parties. Lometa and her child, appellees, answered the bill of interpleader and asserted that she and James C. Lamar contracted a common-law marriage in September 1951, and they lived together as husband and wife until his death; that Cathy Marie Lamar, born in 1954, was the child of their marriage. Mrs. Gatha Lamar, mother of the deceased, and her two surviving sons and daughter, were defendants to the bill of interpleader and are appellants here. Their answer denied that James married Lometa, and asserted they, as next of kin, were his sole heirs. They also filed a cross-bill attacking the validity of the administration of the estate, and praying for a decree against cross-defendants, the administrator, Lometa and her child, for all of the funds of the estate.

After a lengthy hearing upon conflicting testimony, the chancellor rendered an opinion stating that he was "convinced by all of the evidence" that James and Lometa contracted a common-law marriage beginning in September 1951. This occurred prior to the enactment in 1956 of Miss. Code 1942, Recomp., Sec. 465.5, abolishing common-law marriages thereafter. After a careful consideration of the record, we conclude that the great weight of the evidence supports the finding by the chancellor of a common-law marriage between James and Lometa. Bunkley and Morse's Amis, Divorce and Separation in Mississippi (1957), Sec. 1.02.

Shortly after the inception of this common-law marriage, Lometa signed a promissory note at the bank and entered a hospital in her maiden name. Appellants strenuously argue these circumstances, but they are facts to be evaluated by the trial court along with all of the other evidence. The record clearly reflects and the chancellor found that the families of both parties to the marriage recognized them as being married and the child as legitimate. They cohabitated together for a number of years as husband and wife and held themselves out as such. The trial court was warranted in infering and concluding from the evidence that these parties had mutually agreed to live together as husband and wife and to assume the resulting duties and rights toward one another, and that they did this.

(Hn 2) On an ex parte petition by the sheriff, joined in by Lometa as the widow, the chancery clerk appointed Shoemake as the administrator of James' estate. That order recited that she was the "wife of said decedent". The appointment was confirmed by the chancery court at the next regular term. Subsequently the chancellor signed an order authorizing settlement of the tort claims of the estate. That decree also stated that Lometa was "the widow of said decedent". Thereafter appellants gave notice of their intent to contest the validity of the marriage, so the administrator filed a bill of interpleader, joining Lometa and her child, and the appellants as defendants. The chancellor ruled those two orders created a prima facie showing that Lometa was the widow of James, and the burden of going forward with the evidence to rebut it was upon appellants.

Appellants were not parties to the estate proceedings when these orders were entered. They complain that this ruling of the trial court is reversible error. We cannot agree. The chancellor's opinion stated that he would give no particular weight to this prima facie showing, and he was convinced from all of the evidence that there was a common-law marriage. He found its validity was "supported by a preponderance of the evidence". It is manifest that the court made its findings and decree on the basis of an appraisal of the evidence, independently of any presumption. In fact, we think that the great weight of the evidence supports the decision reached.

(Hn 3) Moreover, this case arose on a bill of interpleader. Both groups of claimants must recover on the strength of their own title rather than on the weakness of that of the adversary. Each claimant has the burden of establishing his own claim by a preponderance of the evidence. 48 C.J.S., Interpleader, Sec. 41. (Hn 4) The burden of proving a common-law marriage is upon the party asserting it. 55 C.J.S., Marriage, Sec. 43. The chancellor correctly found that Lometa and Cathy had met their burden of establishing the existence of a common-law marriage. Under these circumstances, and assuming but not deciding he was in error in holding these ex parte orders to create a prima facie showing of heirship, it was harmless error. See Anno., 119 A.L.R. 594, 608 (1939); 21 Am. Jur., Executors and Administrators, Secs. 116, 122.

Affirmed.

McGehee, C.J., and Hall, Holmes and Gillespie, JJ., concur.

LAMAR, et al. v. SHOEMAKE, ADMR., ETC.

Comments