Simms v. Kirk

Indiana Court of Appeals

Simms v. Kirk

144 N.E. 146, 81 Ind. App. 515, 1924 Ind. App. LEXIS 75

CourtIndiana Court of Appeals

DecidedJune 3, 1924

DocketNo. 11,761

StatusPublished

This text of 144 N.E. 146 (Simms v. Kirk) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Simms v. Kirk, 144 N.E. 146, 81 Ind. App. 515, 1924 Ind. App. LEXIS 75 (Ind. Ct. App. 1924).

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Opinion

Dausman, P. J.

This action was instituted by Charles B. Kirk and his wife, Julia E. Kirk, against James F. Simms to quiet title to real estate. The trial court made a special finding of facts, stated conclusions of law thereon, and rendered judgment in favor of the plaintiffs.

It appears that one Nancy Evans (Simms) died testate; that, at the time of her death, she was, and for many years prior thereto, had been, the owner of the real estate involved in this action; that the plaintiffs purchased the real estate from her executor and received conveyances from the executor and legatees; and that the defendant James F. Simms claims to be the owner of the real estate as the surviving husband of Nancy Evans (Simms).

[516]*516The court found that in December, 1905, the defendant and Nancy Evans entered into an ostensible marriage ; that a license was procured and a marriage ceremony performed by an ordained minister; that, at the time of the ostensible marriage, the defendant was the lawful husband of one Martha Simms who then resided in Dayton, Ohio; that, at the time of the ostensible* marriage, the defendant knew that he was the husband of Martha Simms; that in April, 1907, Martha Simms was granted a divorce from the defendant; that the defendant never informed Nancy Evans of the fact that, 'at the time of their pretended marriage, he had a lawful wife living; that no children were born of the pretended marriage; that the pretended marriage was fraudulent on the part of the defendant; that the parties to the pretended marriage lived together until March 17, 1917, when they separated and never lived together thereafter; that the defendant abandoned her without cause and failed to make proper provision for her support, or any provision whatsoever during her last sickness; and that, at the time of her death, she was 81 years of age.

The court determined that the defendant never was the husband of Nancy Evans by virtue of any common-law marriage or any other kind of marriage; that he is in no way related to her; and that he is not entitled to inherit any part of her estate.

Counsel for the appellant concede, of course, that the ceremonial marriage was void; but they contend that there was a common-law marriage. The evidence abundantly sustains the decision of the trial court with respect to that feature. We have given the contention due consideration and we find nothing that would justify this court in disturbing the judgment of the trial court. Having reached this conclusion, other questions presented become immaterial. The fact [517]*517should not be overlooked, however, that a statute provides that if a husband shall abandon his wife without just cause, failing to make suitable provision for her, he shall take no part of her estate. §3036 Burns 1914, §2498 R. S. 1881.

Judgment affirmed.

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Dausman, P. J.

This action was instituted by Charles B. Kirk and his wife, Julia E. Kirk, against James F. Simms to quiet title to real estate. The trial court made a special finding of facts, stated conclusions of law thereon, and rendered judgment in favor of the plaintiffs.

It appears that one Nancy Evans (Simms) died testate; that, at the time of her death, she was, and for many years prior thereto, had been, the owner of the real estate involved in this action; that the plaintiffs purchased the real estate from her executor and received conveyances from the executor and legatees; and that the defendant James F. Simms claims to be the owner of the real estate as the surviving husband of Nancy Evans (Simms).

[516]*516The court found that in December, 1905, the defendant and Nancy Evans entered into an ostensible marriage ; that a license was procured and a marriage ceremony performed by an ordained minister; that, at the time of the ostensible marriage, the defendant was the lawful husband of one Martha Simms who then resided in Dayton, Ohio; that, at the time of the ostensible* marriage, the defendant knew that he was the husband of Martha Simms; that in April, 1907, Martha Simms was granted a divorce from the defendant; that the defendant never informed Nancy Evans of the fact that, 'at the time of their pretended marriage, he had a lawful wife living; that no children were born of the pretended marriage; that the pretended marriage was fraudulent on the part of the defendant; that the parties to the pretended marriage lived together until March 17, 1917, when they separated and never lived together thereafter; that the defendant abandoned her without cause and failed to make proper provision for her support, or any provision whatsoever during her last sickness; and that, at the time of her death, she was 81 years of age.

The court determined that the defendant never was the husband of Nancy Evans by virtue of any common-law marriage or any other kind of marriage; that he is in no way related to her; and that he is not entitled to inherit any part of her estate.

Counsel for the appellant concede, of course, that the ceremonial marriage was void; but they contend that there was a common-law marriage. The evidence abundantly sustains the decision of the trial court with respect to that feature. We have given the contention due consideration and we find nothing that would justify this court in disturbing the judgment of the trial court. Having reached this conclusion, other questions presented become immaterial. The fact [517]*517should not be overlooked, however, that a statute provides that if a husband shall abandon his wife without just cause, failing to make suitable provision for her, he shall take no part of her estate. §3036 Burns 1914, §2498 R. S. 1881.

Judgment affirmed.

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Bluebook (online)

144 N.E. 146, 81 Ind. App. 515, 1924 Ind. App. LEXIS 75, Counsel Stack Legal Research, https://law.counselstack.com/opinion/simms-v-kirk-indctapp-1924.