Opinion
No. 42219.
March 12, 1962.
1. Witnesses — dead man's statute — party who claimed to be surviving widow incompetent to testify.
Party who claimed status of decedent's widow was incompetent to testify to matters concerning her marriage to decedent and defendants' plea that she was estopped to claim status. Sec. 1690, Code 1942.
2. Appeal — dead man's statute — party's incompetent testimony concerning her marriage to decedent harmless where fact of marriage judicially admitted.
Admission, in proceeding on party's petition to be declared decedent's widow, of party's incompetent testimony concerning her marriage to decedent and defendants' plea of estoppel, was harmless, where fact of marriage was judicially admitted, and defendants' evidence alone was insufficient to establish estoppel.
3. Pleading — answer which neither admits nor denies allegation of petition admits allegation.
Answer which neither admitted nor denied allegation of petition that party had never been divorced from decedent, was admission that there had been no divorce. Sec. 1291, Code 1942.
4. Marriage — presumption of validity of second marriage is not conclusive, and yields to proof.
Presumption of validity of second marriage is not conclusive, and yields to proof.
5. Descent and distribution — estoppel to claim as widow — burden of proof.
Defendants who pleaded that petitioner was estopped from claiming widow's rights in decedent's estate had burden of proving estoppel.
6. Descent and distribution — estoppel by conduct to claim widow's rights — evidence insufficient to show an estoppel.
Defendants' evidence was insufficient to establish that petitioner's conduct in leaving decedent estopped her from claiming widow's rights, as against claimant under second marriage.
7. Executors and administrators — widow's allowance — burden of proof on claimant.
Party claiming widow's rights had burden of establishing claim to year's support, by showing either that she was being supported by decedent at time of his death, or that she was away without fault on her part. Sec. 561, Code 1942.
8. Executors and administrators — homestead — widow's allowance — evidence insufficient to require award of widow's allowance or setting aside of homestead.
Petitioner's evidence as to whether she had been supported by decedent at time of his death or was away from him without fault on her part, was insufficient to require award of widow's allowance or setting aside of homestead. Sec. 561, Code 1942.
Headnotes as approved by Jones, J.
APPEAL from the Chancery Court of Hinds County; J.C. Stennett, Chancellor.
Joe G. Moss, Raymond; George W. Haynes, Utica, for appellants.
I. The lower court erred in allowing Annie Marshall, appellee here, to testify in order to establish her own claim against the estate of Sam Marshall, deceased. Covington v. Frank, 77 Miss. 606, 27 So. 1000; Graham v. Taylor, 117 Miss. 736, 78 So. 706; Whitehead v. Kirk, 104 Miss. 776, 61 So. 737, 62 So. 432; Sec. 1690, Code 1942.
II. The lower court erred in its finding that it was definitely and conclusively established that Sam Marshall and Annie Marshall were never divorced, and further erred in its finding that a presumption of a lawful marriage existed between Sam Marshall and Annie Marshall at the time of Sam Marshall's death. Bourland v. Hatchcock, 186 Miss. 223, 188 So. 9; Pigford Bros. Constr. Co. v. Evans, 225 Miss. 411, 83 So.2d 622; Wallace v. Herring, 207 Miss. 658, 43 So.2d 100; Griffith's Mississippi Chancery Practice (2d ed.), Sec. 352 p. 338;
III. The finding of the lower court that Annie Marshall has not been guilty of adulterous and meretricious relations since her separation from Sam Marshall is against the overwhelming weight of the evidence adduced.
IV. The opinion of the Chancellor is against the overwhelming weight of the evidence, and contrary to law. Gerard v. Gill, 195 Miss. 726, 15 So.2d 478, 916; Teague v. Brown, 199 Miss. 262, 24 So.2d 726.
Earl R. Cruthirds, Jackson, for appellee and cross-appellant.
I. A wife living apart from her husband at his death, through no fault of her own, and there being no children, is entitled to take one-half of the estate of the husband, less the value of her own separate property. Stringer v. Arrington, 202 Miss. 798, 32 So.2d 879; Secs. 668, 669, Code 1942.
II. Annie Marshall was a competent witness but even if Annie Marshall had not been a competent witness to testify in the court below, her case was thoroughly proven by other witnesses. Covington v. Frank, 77 Miss. 606, 27 So. 1000; Poole v. McCarty, 240 Miss. 341, 127 So.2d 398; Stovall v. Stovall, 218 Miss. 374, 67 So.2d 391; Whitehead v. Kirk, 104 Miss. 776, 61 So. 737; Secs. 1688, 1690, Code 1942.
III. The Chancellor heard and saw the witnesses in the case below, not only Annie Marshall but all other witnesses for the petitioner and the respondents, and his finding that it was conclusively established that Sam Marshall and Annie Marshall were duly married and never divorced is supported by the evidence. 20 Am. Jur., Evidence, Sec. 166 p. 170; Griffith's Mississippi Chancery Practice (2d ed.), Sec. 352 p. 338.
IV. The Chancellor, after hearing all of the evidence in this cause of action, necessarily found that there was no substance to the allegation of the respondents that Annie Marshall had been guilty of actions that would estop her from claiming to be the heir of Sam Marshall, deceased.
V. The Court erred in its finding that Annie Marshall was not dependent on Sam Marshall at the time of his death and in holding that she was not entitled to a widow's allowance for one year's support. Stringer v. Arrington, supra; Vaughan v. Vaughan, 195 Miss. 463, 16 So.2d 23; Sec. 561, Code 1942.
VI. The Court erred in not ordering the setting apart of a homestead to the petitioner, Annie Marshall. Bohn v. Bohn, 193 Miss. 122, 5 So.2d 429; Secs. 476, 478, Code 1942.
One Sam Marshall died testate leaving his property to one Bessie Marshall, whom he described as his wife, for her lifetime and remainder to a daughter, Josie Griffin. The will was admitted to probate and the appellee, Annie Marshall, filed a petition seeking to be declared the widow of Sam Marshall and as such widow to be entitled to one-half of the estate plus widow's allowance and the widow's rights in the homestead. The petition alleged that Annie and Sam were married December 22, 1906, and that there had been no divorce terminating said marriage. The answer filed by respondents, appellants here, admitted that Annie Marshall was married to Sam Marshall on December 22, 1906, but appellants "neither admit nor deny that there had been no divorce terminating said marriage." The appellants plead as an affirmative defense that Annie, since she left the home of Sam Marshall about the year 1931, had lived with several different men and was therefore estopped by her conduct from claiming any rights, if any, she might have had in the estate of Sam Marshall.
A hearing was had and the chancellor entered a decree awarding to Annie one-half of the estate but denying widow's allowance on the ground that she was not being supported by decedent at the time of his death. He said nothing specifically about the homestead rights but limited her recovery in the decree to one-half of the estate.
Bessie Marshall and the daughter assign as error the fact that the court permitted Annie Marshall to testify. The other assignments relate to the finding of the chancellor.
Annie Marshall cross-appeals and assigns as error the finding of the chancellor that Annie Marshall was not dependent on Sam Marshall at the time of his death and in denying her the widow's allowance, and also in not ordering that the homestead be set aside to her for her use during her lifetime.
(Hn 1) The claim of Annie Marshall arose from her marriage and the plea of estoppel involved matters occurring prior to the death of Sam Marshall. Clearly Annie Marshall was an incompetent witness under Section 1690, Code of 1942. (Hn 2) However, for the reasons hereinafter shown, the admission of her evidence was harmless. There were two issues involved, towit: (1) Her marriage and (2) the question of estoppel. (Hn 3) As to the marriage the answer to her petition admitted that she, Annie, was married to Sam and neither admitted nor denied that there had been a divorce. This was an admission that there had been no divorce. Griffith's Mississippi Chancery Practice, 2d Ed., Sec. 350-354; Section 1291, Code of 1942.
(Hn 4) Appellant insists that the presumption as to validity of the second marriage prevails. To do so in this case would mean that such presumption was conclusive. This is not the law and the presumption yields to the proof. Vaughan, et al. v. Vaughan, 195 Miss. 463, 16 So.2d 23. The chancellor was correct in holding that Annie Marshall and Sam Marshall were married in 1906 and never divorced, this being as aforesaid admitted by the pleadings and it being shown that Bessie and Sam were not married until 1934.
(Hn 5) Insofar as the question of estoppel is concerned, the burden of proving estoppel was upon the respondents who had pled it. We have carefully studied the evidence tendered by the respondents on this issue. In 31 C.J.S., p. 457, it is said: "Every fact essential to an estoppel must be clearly and satisfactorialy proved by a preponderance of the evidence. Where the evidence is evenly balanced, the burden of proof (see supra Sec. 160) is not sustained.
"Estoppels cannot be based on mere conjecture; and facts alleged to constitute them will not be taken by argument, inference, or intendment."
(Hn 6) The cases where this Court has sustained the plea of estoppel against a wife or husband in a case such as this have been cases where there was a wilful abandonment and desertion and a second and bigamous marriage. There was no clear and satisfactory proof here that Annie abandoned and deserted Sam Marshall. Rather it was indicated that she had left home by reason of the misconduct of Sam and Bessie. The chancellor was correct in holding that the plea of estoppel by respondents, eliminating and not considering the testimony of Annie herself, was not supported by the testimony. For this reason the admission of the evidence of Annie Marshall herself was harmless. In other words, the fact that Annie had married Sam and had never been divorced was admitted by the pleadings and was further admitted by Bessie Marshall when she was called as an adverse witness. And the testimony offered by respondents to show an estoppel against Annie Marshall was insufficient itself, even without considering the testimony of Annie, to sustain the plea of estoppel.
Our Court has stated that generally wilful desertion or abandonment is held to estop a spouse from inheriting from the other. Walker v. Matthews, et al., 191 Miss. 489, 3 So.2d 820. It has been held numerous times that a bigamous marriage will estop one from inheriting from his or her spouse. Harrison v. G. K. Investment Co., 238 Miss. 760, 115 So.2d 918. Evidence in this case failed to show either of these grounds for estoppel.
There was some evidence from which a person by conjecture or inference may have considered that Annie was guilty of occasional acts of adultery but there was no clear and satisfactory proof of such acts. 31 C.J.S. 457. Further, it has been stated: "It is generally held that adultery on the part of either spouse is not a bar to taking a distributive share in the estate of the deceased spouse." 71 A.L.R. 282. See also 26A C.J.S. 640.
We do not deem it necessary however to pass upon this particular question at this time.
(Hn 7) Section 561, Code of 1942, relative to the widow's allowance provides that such allowance shall be set aside to the widow and children who were supported by the decedent. This statute would place upon Annie Marshall the burden of establishing her claim to a year's support, of showing either that she was being supported by Sam Marshall at the time of his death or that she was away from him without fault on her part. Vaughan v. Vaughan, supra. (Hn 8) We cannot say that the chancellor's finding as to the widow's allowance is manifestly wrong and for the same reason we could not hold that he was manifestly wrong in not having the homestead set aside to the widow.
We think substantial justice was done by the chancellor and the case is affirmed on direct and cross appeals.
Affirmed on direct and cross appeals.
Kyle, Gillespie, McElroy and Rodgers, JJ., concur.