21 Ky.L.Rptr. 1460
Court of Appeals of Kentucky.
March 10, 1900.
ACTION: Affirmed.

Appeal from circuit court, Harlan county.

"Not to be officially reported."

Action by the administrator of Wiley Belcher against Rachel Belcher and others to recover personal property.

Judgment for defendants, and plaintiff appeals.

William M. Howard and Rachel Fee were married April 11, 1861. They separated in 1862, and soon thereafter he filed a suit against her for divorce in the Harlan circuit court, Harlan county being then her place of residence. In 1865 he married again, and has reared by his second wife a family of children, the oldest of whom is now 32 years of age. The records of the Harlan circuit court were destroyed during the Civil War, and the records of the clerk's office from 1862 to 1865 are gone. In 1884, Rachel Howard married Wiley Belcher. She then had an infant child, Bathsheba, begotten by Wiley Belcher under promise of marriage, but born before the marriage took place. This child was recognized by him, both before and after the marriage, as his child. He died November 4, 1896. After his death his children by his first wife, recognizing Rachel as his widow, and the infant Bathsheba as his child, set apart to them the property exempted from distribution, and an agreed division of the land owned by him was had. After all this was done, this suit was brought by the administrator of Wiley Belcher to recover from her the property so set apart, on the ground that she had never been divorced from her first husband, William M. Howard; that the marriage to Belcher was therefore void; and that her child Bathsheba was a bastard, and entitled to no part of the estate. The jury to whom the case was submitted returned a verdict for the defendant.

The court instructed the jury that if they believed from the evidence that Rachel Belcher was divorced from her husband, William M. Howard, and afterwards married Wiley Belcher, they should find for her. It is insisted that there was no evidence, or at least no competent evidence, to sustain this instruction. The records of the Harlan circuit court from 1862 to 1865 being destroyed, it was proper to admit parol evidence to show that a divorce was granted. The proof shows clearly that the suit was brought, and that William M. Howard received what purported to be an official copy of the judgment divorcing him from his wife. This copy, after the lapse of so many years, has been lost, as might be expected. It also appears that Howard and his former wife continued to live not far apart; that he married, and has raised a family, and she married, and no question for over 30 years was raised as to the validity of their divorce. Under such circumstances, the presumption of regularity is well-nigh conclusive. The suit for divorce had to be brought in the county of the wife's residence, which was Harlan county, and we know of no proper way of removing such a suit, without her knowledge, to another circuit. The fact, therefore, that there was no record of this suit in Clay county is immaterial. The impression on the mind of Howard that he got the copy of the judgment of divorce from Clay county no doubt arises from the fact that his attorney resided there, and the copy was sent by him.

The evidence not only sustains the verdict of the jury, but it would not have warranted any other finding. This conclusion makes it unnecessary for us to examine the other questions discussed by counsel. William M. Howard was a competent witness for appellee to prove that she was not his wife.

Judgment affirmed.

Ky.App. 1900.


55 S.W. 693, 21 Ky.L.Rptr. 1460


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