Pressley v. Pressley

86 S.E. 377, 102 S.C. 174, 1915 S.C. LEXIS 188

• Court: Supreme Court of South Carolina
• Decided: September 28, 1915
• Docket: 9203
• Status: Published

Opinion

The opinion of the Court was delivered by

Mr. Justice Fraser.

The appellants thus state their case:

“This is an action by the plaintiffs-appellants against the defendants-respondents for the purpose of having the will of plaintiffs’ father construed, and the rights of the parties thereunder adjudged.

The complaint alleges that the plaintiffs are the legitimate sons of Henry Pressley; that the defendants, Joseph and Charles Pressley, are illegitimate sons of Henry Pressley; that Hattie, Catherine and Alice McQueen are the daughters of Henry Pressley’s legitimate daughter; that Enoch McQueen is the son of Henry Pressley’s illegitimate daughter; and that Elizabeth Pressley is the widow of Henry Pressley. That Henry Pressley died, leaving a will in which he devised or attempted to devise more than one-fourth of the clear value of his estate to Joseph and Charles Pressley, his illegitimate sons, ’and Enoch McQueen, son of his illegitimate daughter.

Enoch, Hattie, Catherine and-Alice McQueen answered by their guardian ad litem, submitting their interest to the Court. Elizabeth Pressley answered, admitting all the allegations of the complaint, and further answered that she had elected to take her dower in the lands left by her husband, Henry Pressley, and had instituted proceedings in the probate Court therefor. Joseph and Charles Pressley did not answer.

The case was referred to the master, who, after taking the testimony, filed a report, in which' he held that Joseph and Charles Pressley and Enoch McQueen were legitimate descendants of Henry Pressley; that Henry Pressley was married to their mother, Nellie Hilton, in 1866; and that the plaintiffs and their sister of the full blood were bastards.

The plaintiffs excepted to this report, and the case was submitted to Judge Ernest Moore, who sustained the master. The case is now before this Court on exceptions to the decree of Judge Moore, as fret forth in the 'case. ”

1 The first exception complains of error in that his Honor found that three of the defendants had answered, when, in fact, they had not answered. The only statement in the case that shows that these defendants did not answer, is contained in the exception.

This Court has repeatedly held that it cannot consider an exception when the only statement of the fact upon which it is based is in the exception itself. The trial Judge found as a matter of fact that they did answer and the questions raised by their answers. The record does not contain the answers nor does it contain any statement that no other answers than that contained in the case were filed. The failure of the defendants named to answer is not admitted by the respondents.

This exception can not be sustained.

2 The next question is, did his Honor err in refusing to consider two of appellant’s exceptions to the master’s report on the ground that the exceptions were too general? The appellant seems to rely mainly upon the eighth exception, which complains that the master did not pass upon any of the issues. The master passed upon the legitimacy of the parties, and this was the principal issue, and, having passed adversely to the plaintiff on this issue, the other issues as to the proportion did not arise.

3 The next question embraces two exceptions: Did his Honor err in excluding the testimony of Elizabeth Pressley as to her marriage with Henry Pressley on account of interest under section 438, Code of Civil Procedure, 1912.

This question is academic here, as the testimony of Elizabeth, on this subject, before the Judge of probate, was admitted, without objection.

4 The fifth exception complains of error in not reversing the master, after holding that the master had erred in admitting incompetent testimony. His Honor said he did not consider this evidence in making up his opinion, and we must assume that his Honor did not. This exception can not be sustained.

5 Exceptions 6-10 complain of error in holding that the marriage between Henry and Nellie was a valid marriage and in holding that the burden of proof was upon the plaintiff to sustain the validity of the slave marriage between Henry and Elizabeth by the clear preponderance of the evidence. Clear preponderance and preponderance mean the same thing.

There was evidence to show that Henry and Elizabeth lived together as man and wife before and during the war. The relation was not in law marriage at that time. In 1865 the legislature passed an act which declared the relation of former slaves, who had contracted a moral marriage, to be that of husband and wife, but specifically declared where a man and- woman were maintaining the mere relation of concubinage, it should not be converted into marriage by virtue of the .act. We find them living together, but not married according to law to begin with, and if there was a change in that relation, it must be shown.

In 1865 the act was passed. In 1866 Henry and Nellie were married according to law. Elizabeth said Henry lived with both at the same time. There is testimony that after Nellie’s death, Elizabeth and Henry were married by one, Cooper. No excuse is given for this marriage in 1886, to a man to whom she now claims to have been married for more than twenty years.

In order to sustain the marriage between Henry and Elizabeth it is necessary to find that by his marriage with Nellie, Henry committed a crime.

A crime is not presumed. It must be proved, at least by the “clear preponderance” of the testimony.

The position that the marriage between Henry and Nellie in 1866 was void, by reason of a previous marriage to Elizabeth can’not be sustained.

6 The eleventh and twelfth exceptions are based upon the validity of the marriage between Henry and Elizabeth prior to 1866, and since we have held that marriage invalid, these questions do not arise.

The judgment appealed from is affirmed.