Your memorandum of September 1, 1982, requested our opinion as to whether Louella
W~ meets the definition of legal widow of S.T. W~, the deceased number holder who
died on July 6, 1972, while domiciled in Mississippi.
The facts as contained in the file indicate that in July 1972 Orean W~ was awarded
mother's benefits based on her February 20, 1953, ceremonial marriage to S.T. W~ in
Lawrence County, Mississippi. Mr. W~ and Orean were living together when he died;
they had thirteen children. On her application for mother's benefits, Orean stated
that the deceased wage earner (DWE) had a prior marriage to Louella which ended in
divorce several years before his marriage to Orean.
On May 17, 1982, Louella W~ filed an application for widow's benefits and submitted
proof of her ceremonial marriage to S.T. W~ on January 12, 1941, in Lawrence County,
Mississippi. She stated that she and Mr. W~ separated in 1942 and she thought Mr.
W~ had secured a divorce; however, when she searched the Jefferson Davis County, Mississippi,
records, a divorce decree could not be located.
Louella W~ stated that she lived in Jefferson Davis County and in Lawrence County
in Mississippi. Orean W~ and S.T. W~~ sister, Pauline P~, stated that Mr. W~ lived
in New Hebron, Lawrence County, from his birth until 1958 when he moved to Hattiesburg,
Forrest County, Mississippi. No other places of residence are alleged. The number
holder's mailing address was shown as a rural route in Hattiesburg, Forrest County,
Mississippi; however, his place of residence at death was shown as Lamar County, Mississippi.
A search of the court records for Lawrence County, Lamar County, Jefferson Davis County,
and Forrest County for the years 1941 through 1972 revealed no divorce for S.T. and
Louella W~. A record was located in Jefferson Davis County showing that S.T. W~ filed
a divorce action against Louella W~ in May 1949. The cause (Case No. 3323) was dismissed
without prejudice on May 22, 1950. No other record could be found.
Your memo queries whether, under Mississippi law, the presumption of the validity
of the last marriage is rebutted by the finding that no divorce occurred at any place
of residence on either Louella W~ or the number holder during their life times; or,
whether the ruling in Alma L. Blackwell v. Flemming, (U.S. District Court, Southern District of Mississippi, CCH ~14,118 (5/01/61)),
prevents a rebuttal of said presumption because of the possibilities of error on the
part of officials in recording all proceedings or in searching the records, or of
a refutation of the certificate of the preacher who performed the number holder's
It is our opinion that the ruling in Blackwell does not preclude a rebuttal of the presumption of the validity of the last marriage.
This presumption is very strong and can be rebutted only by proof so cogent and conclusive
as to fairly preclude any other result; however, the holding in Blackwell appears to have been based on a finding that the first wife was estopped by her conduct
from rebutting the presumption of the validity of the last marriage. Blackwell is not, however, characteristic of the holdings in cases in which the validity of
the last marriage is at issue absent reasons for estoppel.
In the 1980 case of Smith v. Weir, 387 So.2d 761, the Mississippi Supreme Court addressed the presumption of the validity
of the last marriage and considered the degree of proof necessary to rebut the presumption,
Where there is proof of a marriage ceremony, the law will presume the capacity of
the parties, consent of the parties, and all essentials to the validity of the marriage.
The presumption was early recognized by this court in Hull v. Rawls, 27 Miss. 471 (1854), and has been consistently applied ever since.
The rule of law was perhaps best stated in Anderson-Tully Co. v. Wilson, 221 Miss. 656, 74 So.2d 735 (1954) as follows:
It is well-established that when a person has entered into several successive marriages,
a presumption arises in favor of the validity of the second or last marriage. And
this presumption of validity is applicable to a subsequent common-law marriage, as
well as to a subsequent ceremonial marriage. Anno., 14 A.L.R.2d 7, 19; 55 C.J.S. Marriage ~43, pp. 887-892, 896. A subsequent marriage
in fact raises the presumption that a former marriage has been terminated by divorce
or by the death of a prior spouse. These presumptions are based upon public policy.
The burden of adducing evidence to the contrary rests on the party who attacks it.
55 C.J.S. [Marriage, ~43], pp. 890-891. Of course this presumption can be rebutted
by evidence excluding the possibility of a divorce or death of a prior spouse, 14
A.L.R.2d 45, but that burden of proof is a difficult one: "It has been declared that,
an existing marriage being shown, the presumption of its validity is so strong that
proof of a former subsisting marriage, in order to be sufficient to overcome this
presumption, must be so cogent and conclusive as to fairly preclude any other result."
(221 Miss. at 662, 74 So.2d at 737).
In Pigford Bros. Construction Co. v. Evans, 225 Miss. 411, 83 So.2d 622 (1955) ... the court in considering the kind of proof
necessary to overcome the presumption stated:
The practical course of proof in such a case would be to show where each party to
the prior marriage had resided up to the time of the second marriage, and then to
procure from the clerk of the proper court in each such county a certificate of search
showing that no divorce or annulment had been granted by the court of which he is
clerk. (225 Miss. at 421, 83 So.2d at 625).
See also, In re Estate of Erwin, 317 So.2d 55 (1975); Ramphrey v. Ramphrey, 243 Miss. 184, 137 So.2d 902 (1962). We consider the Smith v. Weir, supra, holding to be controlling as to the degree of proof necessary to rebut the
presumption of the validity of the last marriage in Mississippi.
The facts in the record indicate that subsequent to their 1941 marriage and prior
to the wage earner's later marriage in 1953, Louella W~ lived in Lawrence and Jefferson
Davis Counties. During the same time period, the wage earner lived in Lawrence, Forrest,
and Lamar Counties. Apparently, at no point in time during the period in question,
was the whereabouts of either Louella or S.T. W~ unknown. A search of the records
in Lawrence, Lamar, Jefferson Davis and Forrest Counties has revealed no final divorce.
It is noted that the strong suggestion of the court was that it was best to procure
certificates of search showing that no divorce or annulment was granted; however,
in this claim, report of record searches would appear to be in compliance with the
Nonetheless, we do not find that Louella W~ is entitled to benefits on the account
of S.T. W~. Although we concluded that Louella W~ has produced evidence sufficient
to rebut the presumption of the validity of the last marriage, we further conclude
that Louella W~ is estopped from asserting her claim under the Mississippi Supreme
Court's holding in Tillman v. Williams, 403 So.2d 880 (1981). In Tillman, the court did not apply the doctrine of estoppel
to prevent a husband from inheriting from his wife even though they had separated
15 to 20 years before the wife's death and the husband had moved his abode to an adjoining
county. The court declined to apply estoppel against the husband's petition inasmuch
as there was no evidence of any attempt of remarriage or disclaimer of marriage by
either party during the years of separation or that either attempted to obtain a divorce.
The Tillman court clarified earlier holdings made in Walker v. Mathews, 191 Miss. 489, 3 So.2d 820 (1941) and In Re Marshall's Will, 243 Miss. 472, 138 So.2d 482 (1962), where there appeared a sentence indicating
that "desertion or abandonment is held to estop a spouse from inheriting from the
other." The Tillman court noted that the Mississippi legislature had not seen fit to enact any legislation
on the abandonment question, therefore, inheritance statutes were to be strictly construed
absent a clear desertion and abandonment of the marriage relation.
In Walker, supra, the surviving wife had engaged in a marriage ceremony with another man, and
her deceased husband also had married another. There was a clear abandonment of the
In Rowell v. Rowell, 251 Miss. 472, 170 So.2d 267 (1964), the court held that even an adulterous affair
did not amount to desertion "in the absence of a statute or showing of a bigamous
In Baugh v. Brimage, 242 Miss. 459, 135 So.2d 701 (1961), a surviving husband was held estopped to inherit
from his deceased wife's estate when he had entered into a bigamous marriage and was
living with still another woman with whom he had several children.
In Re Marshall's Will, supra, the surviving wife lived with various men after leaving her husband. Furthermore,
the husband, prior to his death, had married another woman. The abandonment of the
marriage relationship was clear.
It is our opinion that the assertions contained in the decedent's 1949 Bill for Divorce
to the effect that Louella had deserted him in 1943 and Louella's statement that she
thought they were divorced would tend to indicate that Louella W~ presumed that she
was single and had abandoned the marriage relation. On the basis of her abandonment
of the marriage relation you would be warranted in finding that Louella W~ is estopped
from asserting her claim as the widow of S.T. W~. If, however, Louella W~ were able
to produce evidence tending to indicate that she had not abandoned the marriage relation
(for example, records showing her status as married, records indicating S.T. W~ as
her husband, representation to third parties that Louella was currently married to
S.T. W~) she then would not be estopped from asserting her claim as the widow of S.T.