Appeal by defendants from Roda, Judge. Judgment entered 2 February 1981. Heard in the Court of Appeals 12 November 1981.
Martin (Harry C.), Judge. Judge Clark concurs. Judge Hedrick dissents.
At the outset, we note that this action was brought under the Declaratory Judgment Act, article 26 of Chapter 1 of the General Statutes of North Carolina. Although the allegations might be more artfully stated, we find them sufficient to state a
claim under the statute. Plaintiff alleges facts that could support a finding that she is the widow of Joseph James Bowlin and thus entitled to share in his estate along with his son, Jeffrey James Bowlin. Jeffrey James Bowlin, through his guardian ad litem, denies those allegations, seeking to exclude plaintiff from participating in his father's estate. These allegations present a justiciable controversy between the parties over the status of plaintiff as the widow of Bowlin and their respective rights in the estate of Bowlin. Lide v. Mears, 231 N.C. 111, 56 S.E.2d 404 (1949). Plaintiff and defendant Jeffrey James Bowlin have adverse interests in the matter in dispute, i.e., the marital status of Bowlin at the time of his death. They are not merely fishing in the judicial pond. Id.
Turning now to the merits of the appeal, although we are cognizant of the fact that this Court has recently decided a case on strikingly similar facts in Parker v. Parker, 46 N.C. App. 254, 265 S.E.2d 237 (1980), we nevertheless find it necessary to review the law respecting common law marriages in South Carolina in order to determine its effect on the facts of this case.
In Davis v. Whitlock, 90 S.C. 233, 73 S.E. 171 (1911), the wife entered into a second marriage believing that, after seven years of absence, her first husband was dead. He was, in fact, still living. Mr. Davis did not know of the former marriage. However, plaintiff and defendant continued to cohabit after the first husband's death, at which point their marriage became a valid common law marriage. The court provided the following insight into its holding:
[W]here the relation began as meretricious, it cannot be converted into a marriage by the mere removal of the obstacle to marriage without some subsequent agreement to be husband and wife. But the authorities are unanimous in holding that if a man and woman enter into a contract of marriage believing in good faith that they are capable of entering into the relation notwithstanding a former marriage, when, in fact, the marriage is still of force, and after the removal of the obstacle of the former marriage the parties continue the relation and hold themselves out as man and wife, such action constitutes them man and wife from the date of the removal of the obstacle.
Page 103} Id. at 246, 73 S.E. at 175.
Distinguishing Davis from later cases, including Bannister v. Bannister, 150 S.C. 411, 148 S.E. 228 (1929), upon which defendants rely, is the fact that the marriage in Davis was contracted for in good faith. Neither civil nor criminal law forbade remarriage where the defendant wife's first husband had been absent for seven years. In Bannister the husband, Ivory, entered into a second marriage without obtaining a divorce from his first wife, Carrie, whom he knew to be alive and with whom he continued to have contact after the second marriage. Carrie later died. The court held that "[t]he second marriage being thus meretricious in its inception, the status thereby created continued, even though the obstacle was removed by Carrie's death, unless changed by some subsequent agreement on the part of Ivory and Mary to be husband and wife." Id. at 414, 148 S.E. at 229.
The South Carolina Supreme Court had an opportunity the following year, in Lemon v. Lemon, 158 S.C. 71, 155 S.E. 285 (1930), to further refine the "good faith""subsequent agreement" dichotomy advanced in Bannister. The court wrote:
Under our view of the evidence in the case, we cannot escape the conclusion that, at the time of the alleged marriage of the woman, Sally, to Henry Lemon, Sally had a living husband, Elias Washington, to whom she was lawfully married several years prior to the time of the alleged marriage with Henry Lemon. Therefore, the marriage of Sally to Henry Lemon was unlawful. Later Elias Washington died, and it appears from the record that Sally and Henry Lemon continued to live together as man and wife for some time after the death of Elias Washington, but, so far as the record discloses, there was no subsequent marriage contract and no subsequent agreement between Sally and Henry to be husband and wife. Furthermore, there is nothing in the record tending to show that at the time of the alleged marriage of Sally and Henry these parties acted in good faith, believing that they were capable of entering ...