"[T]he presumption may be rebutted by evidence which, standing alone, affords reasonable grounds for concluding that no divorce has been secured."
How later courts described this case
- "[T]he presumption may be rebutted by evidence which, standing alone, affords reasonable grounds for concluding that no divorce has been secured."
Written by the judges who cited it.
The opinion
Mr. Justice Goldenhersh, dissenting:
I respectfully dissent from the majority opinion and would affirm the judgment. In my opinion the testimony of Bette Lou Sparling, as a matter of law, is insufficient to overcome the presumption of the validity of the decedent’s marriage to Joan Sparling.
The evidence shows a long period of cohabitation with Joan. The testimony of Rev. John E. Hayes that the deceased and Joan attended church together, the records of the baptism of the two children, and the filing of joint income tax returns clearly establish the requisite reputation of marriage.
An analysis of the authorities upon which the majority relies shows those cases are clearly distinguishable. In Schmisseur v. Beatrie, 147 Ill. 210 , Nicholas Beatrie, Jr. was shown to have married Barbara Anstedt on November 12, 1872. On November 14, 1876, he filed suit for divorce and on the same day married Margaret Hube. The divorce action was subsequently dismissed and this was held sufficient to prove that when he married Margaret Hube he had not been divorced.
In Cole v. Cole, 153 Ill. 585 , the evidence showed the decedent was married in England, and the court held that the evidence that he had deserted his wife, had never returned to England and that she had been true to her marital vows, met the requirement of Schmisseur that she introduce “such evidence as, in the absence of all counter testimony, will afford reasonable ground for presuming that the allegation is true * * 147 Ill. at 217 .
In Cartwright v. McGown, 121 Ill. 388 , Braxton Lewis was married in Kentucky in 1841, left his wife, and in 1843 was married in Illinois. His Kentucky spouse obtained a decree of divorce in 1846 and Lewis did not thereafter remarry his Illinois wife. The court held the evidence was sufficient to overcome the presumption of validity of his Illinois marriage.
Bette Lou’s evidence, at best, raises some question as to the validity of the Mexican marriage but certainly does not overcome the presumption of the validity of the Rockford marriage 6 years later. A proper interpretation of the preseumption of validity would require us to presume, assuming, arguendo, some defect in the first marriage, that the disability was removed subsequent thereto, and the second marriage was valid.
The evidence shows that Sparling during the entire period in question lived in Lake and Cook Counties. Evidence that the records of those counties had been searched and no record of a divorce found is conspicuous by its absence. The testimony of Bette Lou, standing alone, falls far short of overcoming the presumption.