Opinion
Filed 24 May, 1961.
1. Evidence 10 — A party voluntarily intervening has the burden of proving his case and establishing the rights claimed.
2. Dower 8: Marriage 2 — Where, in proceedings for the allotment of dower, a party intervenes, admits the prior marriage of petitioner but proves a second marriage to herself, the burden is upon intervenor to prove that the first marriage had been terminated by divorce so as to establish the legality of the second marriage, and in the absence of such evidence nonsuit of the intervenor's claim is proper. Distinction is noted where the first spouse is dead at the time of the hearing.
APPEAL by intervenor, Cassie Morgan Williams, from Hooks, S.J., at January-February 1961 Term of JOHNSTON.
James R. Pool, Levinson Levinson for plaintiff appellee.
Lyon Lyon for intervenor appellant.
RODMAN, J., dissenting.
DENNY and BOBBITT, JJ., concur in dissent.
Special proceeding for the allotment of dower.
On 29 February 1960, the petitioner, Effie Banks Williams, filed a special proceeding in the office of the Clerk of the Superior Court of Johnston County alleging that David Williams died intestate on 25 April 1959, possessed of two tracts of land containing in the aggregate 29.9 acres located in Johnston County and requesting that she, as surviving widow of David Williams, be alloted dower in said land.
Thereafter Cassie Morgan Williams filed an interplea in which she alleges that she married the intestate in South Carolina on 30 December, 1953, and that she is the surviving widow and, therefore, entitled to dower.
Upon the issues raised by the intervenor the cause was transferred to the civil issue docket of the Johnston County Superior Court. When the matter came on for hearing it was stipulated by the parties that the petitioner, Effie Banks Williams, and the intestate, David Williams, were lawfully married on 21 December 1929, and lived together as man and wife, and that David Williams died intestate on 25 April 1959, seized and possessed of the land in controversy.
At the close of all the evidence the petitioner's motion for judgment as of nonsuit as to the intervenor was allowed and the court proceeded to make findings of fact and conclusions of law thereon.
From judgment in favor of the petitioner, the intervenor excepts and appeals to the Supreme Court, and assigns error.
The determinative question on this appeal is whether or not the lower court erred in nonsuiting the intervenor and concluding as a matter of law, upon the admitted facts and the evidence adduced at the trial, that the petitioner is entitled to dower in the lands of which David M. Williams died seized and possessed.
Ordinarily the petitioner has the burden of proof. However, in cases of voluntary intervention the intervenor has the burden of proving his case and establishing the rights claimed. McKinney v. Sutphin, 196 N.C. 318, 145 S.E. 621; Jennings v. Shannon, 200 N.C. 1, 156 S.E. 89.
It is said in the McKinney case, supra: "The intervener becomes the actor and the burden of the issue is on the intervener," citing Sitterson v. Speller, 190 N.C. 192, 129 S.E. 191; Lockhart v. Ins. Co., 193 N.C. 8, 136 S.E. 243; Sugg v. Engine Co., 193 N.C. 814, 138 S.E. 169.
In the case in hand there is evidence that the petitioner and the intestate were married in 1929 and lived together for about two years before separation. In fact the intervenor stipulated and agreed that Effie Banks Williams and David Williams were lawfully married on 21 December 1929, and lived together as husband and wife in Johnston County. There is further evidence to the effect that after the separation the deceased visited petitioner periodically for four years. There is also evidence that the parties involved lived only four or five miles from each other from the time of the marriage between the petitioner and deceased in 1929 until the latter's death in 1959. Furthermore, the petitioner testified that she had not married again; that she had not signed any papers concerning a divorce or separation; and that she had never been served by anyone with papers relating to an action for divorce. The intervenor, Cassie Morgan Williams, offered evidence of her alleged marriage to the intestate in 1953, and that thereafter she continuously lived with him in his home until the date of his death.
Indeed, the intervenor, Cassie Morgan Williams, does not allege in her interplea that David Williams was ever divorced from the petitioner, Effie Banks Williams, or that she had defeated her right to dower by abandonment and infidelity as provided by G.S. 52-20. In short, the intervenor has not alleged nor offered any evidence showing or tending to show that David Williams was legally able to marry her on 30 December 1953.
One who asserts a property right which is dependent upon the invalidity of a marriage must make good his cause by proof. See Kearney v. Thomas, 225 N.C. 156, 33 S.E.2d 871.
The appellant relies on the language in the Kearney case to reverse the trial court's ruling. There it is said: "A second or subsequent marriage is presumed legal until the contrary be proved, and he who asserts its illegality must prove it. In such case the presumption of innocence and morality prevail over the presumption of the continuance of the first and former marriage." However, in that case, the death of the first wife being admitted, the question before the Court was whether or not the evidence was sufficient to be submitted to the jury upon the validity of a subsequent marriage.
The law indulges in presumptions from the necessities of the case in the absence of sufficient evidence to establish the fact to be proved. In the present case, the burden was not upon the petitioner to show that her marriage was valid because this was stipulated and admitted by the intervenor. And the burden was upon the intervenor to show by evidence that the marriage had been invalidated or dissolved. This she has failed to do. In fine, all the evidence is to the effect that the marriage between Effie Banks Williams and David Williams had not been legally dissolved at his death. There is no evidence to the contrary. Therefore, the conclusion is that the court properly nonsuited the intervenor and decided the questions as a matter of law.
For reasons stated the judgment from which appeal is taken is
Affirmed.