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The opinion of the Court was delivered by
Mr. Justice StabeEr.
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We think the questions raised in these two suits were properly disposed of by the Master; and his excellent report, affirmed by the Circuit Judge, is made the opinion of this Court.
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The order appealed from is affirmed.
Mr. Chief Justice BeEase, and Messrs. Justices Carter and Bonham, and Mr. Acting Associate Justice W. C. Cothran concur.
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Case posture Posture Before DENNIS, J., Chesterfield, December, 1929, and May, 1931. Affirmed.Suit by Tyler B. Watson and others, as executors of the last will and testament of J.A. Watson, deceased, against Carl Watson and others, and action by Annie W. Terrell and others against Lougenia Watson, consolidated and heard together. From an adverse order, plaintiffs appeal.
Report of J.E. Leppard, Master, follows:
These two cases were agreed to be consolidated and heard together on the question of the dower of Mrs. Lougenia Watson.
The first case above is one to marshal the assets of the estate of James A. Watson, deceased, and the second one was brought to require the defendant, Lougenia Watson, to make her election between the provision made for her in the will of the said J.A. Watson, and her right to dower, if any, and to remove the cloud from the title of the real estate caused therein by the question of dower.
The testator, James A. Watson, was about sixty-eight years old when he met the defendant, Lougenia Watson. He
had been married to Mrs. Ada Rivers Watson, they had separated under an agreement whereby she did bind herself not to claim dower in any of the real estate of the said J.A. Watson or any other interest in his estate in consideration of the sum of $15,000.00 to her in hand paid, and up to this time she has claimed no rights whatsoever as the widow of James A. Watson. Mr. Watson had gone to Nevada to procure a divorce under the laws of Nevada from Mrs. Ada Rivers Watson, serving her by publication and also by actual service in South Carolina by the Sheriff of Chesterfield County. After obtaining his decree he came back to South Carolina, and through the medium of a friend he was introduced to Mrs. Lougenia Hathcock at Oakboro, N.C., where he speedily stated his desire to procure her to become his wife. She hesitated and inquired how long his former wife had been dead, and he told her that he had a wife living, but that he had a valid divorce and was free to marry whomsoever he wanted to. He also told Mr. and Mrs. Hathcock, relatives of the defendant, Mrs. Lougenia Watson, the same thing, that he was free to marry and had a valid divorce from his former wife. After considerable pressure and due deliberation, Mrs. Lougenia Hathcock agreed to marry Mr. Watson, and they duly married in Albemarle, N.C., the county seat of the county in which she lived, on the 13th day of July, 1923. He first met her on the fourth Sunday in April of that year. Mrs. Watson said that the delay in marrying him was caused because she needed a little time to study over it — breaking up my home. After she married him she broke up her home and came to live with Mr. Watson and took care of him nearly five years, he having died on the 23d of March, 1928. It turned out that Mr. Watson was in very bad health, suffering with heart attacks constantly, and that she was engaged practically from the wedding day in nursing and caring for him in his more or less enfeebled condition, which was progressive, and the evidence is that she was a faithful and attentive wife in
every respect, and so recognized by his children. He recognized her in his will as his wife, in making conveyances of land he procured her to execute her dower on same, so that he was himself thoroughly satisfied that he had contracted a legal marriage, and he had impressed her with that fact and induced her on these representations to become his wife, to break up her home in North Carolina, and to render him that dutiful and tender care which a wife owes to her husband.
The children are now contesting her right of dower; she has asked to take dower instead of the life estate left her by Mr. Watson in his will.
Mr. Watson conveyed a tract of land upon which he lived consisting of three tracts, set out in the answer of the defendant, to Annie W. Terrell, Lila Little, and Tyler B. Watson in trust for himself during his lifetime, and after his death to his son, Earle L. Watson. This conveyance was made during coverture, to wit, July 29, 1924, and recorded March 28, 1928, Book 74, page 108, and Mrs. Watson did not relinquish dower on that deed. Hence, if entitled to dower, she is entitled to dower in those tracts of land as well as those of which the testator died seized, and she sets up the same in her answer with all the parties before the Court, and the whole question now to be determined.
This case has two questions only: The first question arises as to whether Mrs. Ada Rivers Watson can claim a dower in the lands of James A. Watson when it is admitted that she was his wife prior to the time that the demandant in this case married Mr. Watson, and that the divorce of Mr. Watson was obtained without her being brought personally into the jurisdiction of the Court. She executed a release and a contract to release Mr. Watson's lands from any right of dower for a valuable consideration, to wit, $15,000.00, and according to the contention of Mrs. Lougenia Watson is completely estopped.
There have been decisions subsequent to 1882 when the right of a married woman to contract was limited by an
amendment inserted in the General Statutes holding that such contract did not estop the woman from asserting her right of dower, but the Constitution of 1895, Art. 17, § 9, again gave complete power to a married woman in the following language: She shall have the power to contract and be contracted with in the same manner as if she were unmarried.
Prior to the Act of 1882, when she was endowed with all the powers of a feme sole , the case of Smith v. Oglesby , 33 S.C. 194 , 11 S.E., 687 , decided that question. The widow having contracted while her husband was alive not to claim dower, and to relinquish dower if called upon, it was held that she was estopped, although she had never relinquished dower. The Court says at page 197 of 33 S.C. 11 S.E., 687, 688, as follows: It must be remembered that at the time of its execution, under the act of the general assembly then in force, she was legally a feme sole as to the power of contracting, and being contracted with. She had this power without limit, except such as applied to all other persons. Such being the fact, we cannot see why she could not make at that time a binding contract to release her claim for dower as well as a contract with reference to any other matter. If she had this power, she certainly exercised it, and that, too, in a formal manner, in writing, and for a valuable consideration in money, which was paid. We must think that this contract, made and executed in this manner, was a binding contract, and, while not conveying the dower to the defendant in the manner required by the act in such cases made and provided, yet should estop Mrs. Smith from now claiming it.
This effectually disposes of that provision as the Constitution of 1895 gives the married woman exactly the same liberty of contract as the Act of 1870 gave to the married woman under which the contract herein construed was executed, so that there is no danger of two dowers being successfully claimed against this estate.
The second question is whether Mrs. Watson or the heirs of J.A. Watson will be heard to assail the record of divorce which was obtained in the Courts of Nevada. Mr. Watson induced the demandant to marry him on the assertion that he was legally divorced, and had a legal right to marry; that having been done can he repudiate merely for a property right the marriage of his wife as being without authority, and repudiate the judgment as being a nullity? I cite the case of Scheper v. Scheper , 125 S.C. 105 , 118 S.E., 178 , where a husband had procured a divorce which he was now endeavoring to repudiate in order to obtain a part of the estate of his wife whom he had divorced, and it was held that he could not dispute the validity of the judgment which he had procured. I cite the case at pages 105, 107 and 109 of 125 S.C. 118 S.E., 178, 184:
Appellant's counsel in argument state that a divorce was in fact procured by Tindall. While such a void judgment as a general rule neither binds nor bars any one. Yet a party who procures such a judgment to be entered in his favor may not in good conscience be heard to impeach it. * * * Even where one who did not procure it accepts the benefits of a void judgment, he is estopped to assert its invalidity. That doctrine has been applied in many cases to the conduct of a husband or wife who has obtained or accepted the benefits of a void divorce judgment. * * *
`A void judgment of divorce cannot be legalized by the acts of the divorced parties, except so far as either one is estopped by his or her own wrongful conduct in enjoying its benefits, fruits, and privileges. Thus a party who has, as plaintiff, obtained a fraudulent judgment of divorce should not be permitted to enjoy its benefits, nor be allowed to assert its invalidity for his own advantage. So, too, the same rule should be applied to the defendant who, knowing of a void judgment of divorce against him, acquiesces in it for many years, treats it as valid, permanently renounces his marital obligations, remarries, and who has a child by a
second marriage, and he should not be permitted to take advantage of his wrong. Good morals, as well as good law, forbid it. * * * As we have before intimated, and to avoid any chance for an impression that we lend any countenance to the idea that parties may become divorced upon the ground of estoppel by conduct, we repeat that this action is one relating solely to property rights unaffected by any considerations which give to the marriage relation its precise status. The marriage relation between Foster and his deceased wife, with all its duties and obligations, has been terminated by her death; and he is now asserting this former relation, and the invalidity of the decree of divorce, solely for the purpose of obtaining her property. It is to such a state of facts, and in such an action, that we apply the doctrine of estoppel. Beyond this we do not go.'* * *
But whether or not the conduct of the husband, considered apart from the North Carolina judgment, be regarded as sufficient in itself to create an estoppel, there can be no doubt that that conduct is such as strongly to reinforce the righteousness of the conclusion that the North Carolina judgment should be held effectually to estop and bar the appellant from asserting as a husband any right of property in the intestate estate of his deceased wife in this state.
It was held in the case there cited that it was property rights that were involved in this case, and that estoppel would apply either to the parties securing the divorce or parties who claimed or accepted benefits of the invalid judgment, and they were estopped from questioning its validity.
The case above cited is followed by the Court in Way v. Way , 132 S.C. 294 , 128 S.E., 705 , 706 :
It appears from the record that, in the suit for divorce brought in the Georgia Courts, the defendant in that suit, B.R. Way, a resident and citizen of this state, was served by publication; that he was never a resident of the state of Georgia; and that no personal service of process was ever made on Way within the jurisdiction of the Georgia court.
In those circumstances I am not prepared to agree to the master's conclusion that the Georgia divorce was such a judgment as the courts of this state are bound to recognize as legal, valid, and binding `under the full faith and credit' provision of the United States Constitution. That judgment of divorce procured by the wife — Mrs. Cochran, the appellant — was properly held to estop her in this action from claiming as the widow of Way a distributive share in the personal estate of the deceased, Way. See Scheper v. Scheper , 125 S.C. 89 , 118 S.E., 178 .
The part that I have cited is the concurring opinion of Justice Marion; Mr. Justice Purdy concurring in the result as will be seen on the ground that she who had obtained a divorce was estopped from questioning its validity in order to establish her right of dower; estoppels are mutual, and, if it estopped her from asserting her right of dower, it would also estop Mr. Way or his heirs-at-law from denying Mrs. Way's right of dower on the ground of the invalidity of the judgment of divorce which he had obtained, and on the strength of which he had induced her to marry him.
I cite also Shuler's Marriage, Divorce, and Domestic Relations, § 1973:
One who has participated in or acted on a foreign decree will be thereby estopped to claim that it is not valid, and clearly one who obtained the divorce cannot impeach the decree on the ground of lack of jurisdiction of the Court. Therefore, one who goes to another State and there obtains a divorce by publication is estopped to claim that such divorce is invalid, and that she is therefore entitled to rights in the estate of the husband — citing many cases.
Even a libellee who appeared in foreign proceedings cannot object to the jurisdiction of the Court where he did not make the objection of fraud before the Court, and a wife who colludes with her husband in his suit for divorce by going to a jurisdiction where neither of them were domiciled and appearing in his divorce libel and permitting him to obtain
a decree, being paid for this action and who then herself marries again, is estopped from attacking the divorce on the death of her husband, and from claiming that she is his lawful widow. Id.
See Chapman v. Chapman , 224 Mass. 427 , 113 N.E., 359 , L.R.A., 1916-F, 528.
Also one who aided the wife to obtain a divorce in a foreign State and subsequently married her, will be estopped to claim that the foreign divorce was vain, and he cannot invoke the public policy of the State not to recognize foreign divorces obtained without service. Id.
If the wife, by getting an illegal divorce and acting upon it, is estopped to claim its invalidity, how much more will the husband be estopped to attack a divorce which he procured, and on the strength of which he induced a woman to marry him, when she claims her marital rights in his property.
It is clear, therefore, that Mr. Watson was estopped to question the validity of that divorce, and does that estoppel extend to his heirs-at-law, they being privies in estate?
The case of Thompson v. Hudgens , 161 S.C. 450 , 159 S.E., 807 , 811 , goes fully into the doctrine and holds that the heirs-at-law stand exactly in the shoes of the ancestor, and that they therefore are estopped to question anything that the ancestor was estopped from asserting. I quote as follows: How far does the estoppel go? Hudgens, being dead, who are affected by the estoppel which governed him? The answer is generally, that all those in privity with him are also estopped by reason of his conduct in the premises. It will not be questioned that his heirs-at-law, those who take by descent, namely, his wife and children, are estopped. * * *
Hence, as it is only the children of Mr. Watson who are contesting this question, they are completely estopped, as was their father, from disputing the validity of the divorce in question. If they cannot dispute the validity of the divorce, then there is no question of the validity of the marriage
to the demandant which they can make, and hence there is no question of her right of dower in the real estate which he owned during coverture.
In the case of Way v. Way, supra , the Master held, and the majority of the Court affirmed his holding, that the decree of divorce annulled the marriage status or relation insofar as rights of inheritance grew out of said marriage. In this case we are dealing, not with the marriage status, it not being the question as to whether the defendant and J.A. Watson were husband and wife, but it is a question of the rights of property growing out of the transaction set forth, and Mrs. Watson has a right to rely upon the doctrine of estoppel as applying to Mr. Watson and his heirs-at-law growing out of his procuring a divorce and procuring her to act upon the assumption that the divorce was valid. The case of Scheper v. Scheper, supra , deals with that very question; they repudiate the idea that their decision countenances the doctrine that a divorce by estoppel may be had, and say that this action is one relating solely to property rights unaffected by any considerations which gave to the marriage relation its precise status. So here we are dealing only with property rights and the action of Mr. Watson in procuring Mrs. Hathcock to marry him on the assumption that he had a good divorce and was entitled to marry, and this estops him from denying to her the right in his property to which she would be entitled had his assumption been true. She changed her position materially and rendered near five years of patient, exacting service in consideration of his leading her to believe that he had a right to marry her, and he and his heirs now when it comes to the disposition of his estate are estopped from denying her the rights to which she would be entitled had the divorce been valid and of force in South Carolina.
I hold, therefore, that Mr. J.A. Watson, if alive, would be estopped from disputing the validity of the marriage insofar as it relates to property rights involved, and that binds
his heirs-at-law, and therefore that the defendant, Lougenia Watson, is entitled to her dower in all of the lands described in the complaint and in her answer, and that the proper orders should issue to have her dower admeasured in accordance herewith. Source: CourtListener
