Opinion
14553
October 26, 1937.
Before GREENE, J., Richland, February, 1937. Affirmed.
Proceeding in the matter of the petitions of Maggie Blizzard and of Lizzie Blizzard, for letters of administration in the estate of William Blizzard, deceased. From a decree denying both petitions the former appeal.
Order of Judge Greene follows:
This matter came on to be heard before me at the February term of the Court of Common Pleas for Richland County upon an appeal from an order of his Honor Judson H. Smith, Judge of Probate for Richland County. The appellant requested a trial by jury of certain facts under Section 233 of the 1932 Code and appealed upon the following grounds and exceptions:
1. That the Probate Judge erred in holding and finding that Lizzie Ford (or Lizzie Blizzard) was not the wife of Peter Rush prior to her alleged marriage to William Blizzard, deceased, and in holding that the testimony with regard thereto was too vague and conflicting to establish a common-law marriage between Lizzie Ford and Peter Rush.
2. That the Probate Judge erred in finding that Lizzie Ford and William Blizzard were ever married or that they were at any time lawfully man and wife.
3. That the Probate Judge erred in finding and holding that the marriage of Maggie Craft and William Blizzard on December 13, 1915, was null and void and erred in holding that said marriage was null and void, and that at the time of said marriage William Blizzard had a living wife, when as a matter of fact the Probate Judge should have held that the marriage was legal and of full force and effect under all of the facts and circumstances.
4. That the Probate Judge erred in holding, adjudging, and decreeing: "That the petition of Maggie Blizzard, asking for Letters of Administration on the estate of William Blizzard, deceased, be, and the same is hereby dismissed," and that the said Probate Judge should have held that Maggie Blizzard was the lawful wife of William Blizzard, and therefore entitled to have letters of administration issued to her and to act as administratrix of his estate, and it was error to refuse said right as provided by statute.
5. At the time of the hearing the appellant stated an additional and fifth ground of appeal attacking the jurisdiction of the Probate Court to declare a marriage invalid.
After hearing argument of counsel for both the appellant and respondent, it appears that in cases of this kind the granting of a jury trial in an appeal from the Probate Court is within the discretion of the Circuit Judge. Hughes v. Kirkpatrick, 37 S.C. 161, 15 S.E., 912. Therefore in the exercise of my discretion and feeling that the ends of justice would be better served by my considering the issues without a jury, the request for a trial by jury was refused.
After a careful reading of the transcript of record the appellant's first exception must be overruled and the findings of fact and law by the Probate Judge affirmed. The party claiming a common-law marriage must prove the same by the preponderance of the testimony. Pooler v. Smith, 73 S.C. 102, 52 S.E., 967. The appellant in this case has failed to prove a common-law marriage by the preponderance of the testimony. It is also held that the facts and circumstances must show an intention on the part of both parties to enter into a marriage contract, and is usually evidenced by a public and unequivocal declaration by the parties. Tedder v. Tedder, 108 S.C. 271, 94 S.E., 19, 20, 2 A.L.R., 438. There is a lack of sufficient testimony in this case tending to show a common-law marriage. The Courts of this State are reluctant to declare a common-law marriage unless the proof of such marriage is shown by strong and competent testimony.
The appellant's second exception must be overruled for the reasons stated by the Probate Judge. There is ample uncontradicted testimony tending to show a valid and binding ceremonial marriage between the respondent, Lizzie (Ford) Blizzard, and the deceased, William Blizzard. Since there was no common-law marriage prior to this marriage it must be considered as a valid and binding marriage. The findings of the Probate Judge on this point are therefore affirmed.
The third exception of the appellant must be overruled for the reasons stated by the Probate Judge. There could not have been a valid marriage between the appellant, Maggie (Craft) Blizzard, and William Blizzard, as William Blizzard had a lawful living wife at the time of the claimed marriage. See Lemon v. Lemon, 158 S.C. 71, 155 S.E., 285, and Bannister v. Bannister, 150 S.C. 411, 148 S.E., 228.
The appellant's fourth exception must be overruled as, under the view I have taken of the testimony and the law in considering the first three exceptions, the petition of Maggie Blizzard asking for letters of administration on the estate of William Blizzard could not have been granted.
The fifth exception of the appellant must be overruled. Sections 208, 210, and 220 of the 1932 Code give the Judge of Probate complete jurisdiction in all matters of administration and in the granting of letters of administration. Therefore when the parties to this litigation went before the Probate Judge requesting the appointment of an administratrix, the Probate Court acquired jurisdiction of any matter arising in the determination of who was entitled to administration. It was necessary for the Probate Judge to determine whether or not the appellant, Maggie Blizzard, was entitled to administration upon the estate of William Blizzard. In order to determine this question the Probate Judge had to pass upon her marriage to William Blizzard and therefore had jurisdiction of the questions involved.
The Probate Judge had an opportunity to see and hear the witnesses, judge their credibility and the weight to be attached to their testimony. The Courts of this State therefore hold that the findings of fact by a Probate Court should not be disturbed unless they are manifestly erroneous. Black v. White, 13 S.C. 37. I find no such error in the order of the Probate Judge; therefore, for the reasons stated in this order and the reasons outlined in the order of the Probate Court, the findings of fact and rulings of the Probate Judge are affirmed and the exceptions of the appellant overruled.
It is therefore ordered: That the appellant's request for a jury trial be and the same is hereby refused; that the exceptions of the appellant be and the same are hereby overruled. That the findings of fact and rulings of the Probate Judge be and the same are hereby affirmed and the appeal dismissed.
Messrs. Harry M. Lightsey, W.P. Donelan, and D.M. Winter, for appellant cite: As to jurisdiction to determine validity of a marriage certificate: Sec. 8567, Code 1932; 140 S.C. 66; 134 S.E., 873; 111 S.C. 205; 97 S.E., 58. Conflict of testimony question for jury: 75 S.C. 364; 55 S.E., 892; 37 S.C. 161; 15 S.E., 912. Presumption of marriage: 118 S.E., 421.
Messrs. Gary Paschal and John W. Scholenberger, for respondent, cite: Dismissal of appeal: 121 S.C. 366; 113 S.E., 483; 41 S.C. 554; 19 S.E., 747; 40 S.C. 545; 18 S.E., 942; 33 S.C. 608; 12 S.E., 560; 110 S.C. 163; 96 S.E., 250; 168 S.C. 533; 168 S.E., 197; 100 S.C. 265; 84 S.E., 286; 99 S.C. 200; 83 S.E., 39; 64 S.C. 311; 42 S.E., 159; 132 S.C. 335; 128 S.E., 358; 98 S.C. 431; 88 S.E., 676; 121 S.C. 366; 113 S.E., 483; 192 S.E., 283. Testimony regarding common-law marriage: 108 S.C. 271; 94 S.E., 20; 73 S.C. 102; 52 S.E., 967; 13 S.C. 37; 190 S.E., 109. Findings of fact not to be, disturbed when testimony supports conclusions: 51 S.C. 420; 29 S.E., 77; 64 A.S.R., 686.
October 26, 1937. The opinion of the Court was delivered by
William Blizzard, a resident of Richland County, died January 22, 1936. Maggie Blizzard made petition to the Court of Probate to be appointed administrator of his estate, alleging that she was his wife. Lizzie Blizzard also applied for letters of administration, alleging that she was the wife of William Blizzard.
The Judge of Probate took the testimony, heard argument of counsel, and made an order holding that neither of the petitioners was entitled to be appointed administrator. He held that Maggie Blizzard was not so entitled for the reason that, when she married William Blizzard, he had a wife then living from whom he had not been divorced, namely, Lizzie Blizzard; that, therefore, his marriage with Maggie was null and void. He held that Lizzie Blizzard was not entitled to the appointment because she had voluntarily left William Blizzard and married another man, thereby forfeiting all interest in the personal estate of William Blizzard, and any right of dower in real estate, if he owned any.
From this order Lizzie Blizzard did not appeal, and is out of the case, although for some reason she appears in the record as respondent.
Maggie Blizzard appealed from the order of the Probate Judge to the Court of Common Pleas, which appeal was heard by Judge Greene, who affirmed the order of Probate Judge Smith.
The respondent made a motion to dismiss the appeal, which was heard at the June, 1937, term of this Court; the motion was refused, with leave to renew it at the hearing of the appeal. Strictly speaking, Lizzie Blizzard is no longer a party to this action and has no right to insist upon her motion. The issue is now an academic one, and needs no further attention.
The Court is satisfied with the decree of Judge Greene, and affirms it. It sufficiently states and decides the issues of law and fact; let it be reported.
MR. CHIEF JUSTICE STABLER and MESSRS. JUSTICES BAKER and FISHBURNE concur.
MR. JUSTICE CARTER did not participate on account of illness.