139 P. 458 | Mont. | 1914
delivered the opinion of the court.
Robert G. Huston, a resident of Butte, died intestate in Seattle, Washington, on November 1, 1912. Thereafter two petitions were presented to the district court of Silver Bow county, each asking for the appointment of an administrator of the estate— one by a person claiming to be the surviving wife and the other on behalf of a nonresident sister of the deceased. Pending the final determination, appellant was appointed special administrator. The two petitions were heard together, and the result of the trial was an order granting the petition of respondent, denying the petition of the sister and revoking the special letters theretofore granted to appellant. There is an appeal from the order, and the only question for determination is the sufficiency of the evidence to warrant it. There is not any substantial dispute as to the facts.
In the fall of 1910 Huston and Mrs. Annie B. King—a divorced woman—left Butte together for the national encampment of the G. A. R. at Atlantic City, New Jersey. They stopped in
At the time the marriage ceremony was performed in Toledo Huston had a wife—Elizabeth—living in Portland, Oregon. He
Section 3612, Revised Codes, provides: “A subsequent marriage contracted by any person during the life of a former husband or wife of such person, with any other person than such former husband or wife, is illegal and void from the beginning, unless: 1. The former marriage has been annulled. 2. Unless such former husband or wife was absent, and not known to such person to be living for the space of five successive years immediately preceding such subsequent marriage, or was generally reputed and was believed by such person to be dead at the time such subsequent marriage was contracted; in either of which cases the subsequent marriage is valid until its nullity is adjudged by a competent tribunal.”
So far as the Toledo ceremony is concerned, it is of no aid to respondent in her attempt to establish her claim as the surviving widow of Robert G-. Huston, deceased, by a marriage contracted prior to the trip to Seattle in October, 1912. Whatever may be said of the evidence as to their conduct to each other in Butte after May, 1911, when Huston’s disability was removed, this fact is indisputable: that their assumption of the marital relationship—their cohabiting as husband and wife— was clandestine.
Section 3607, Revised Codes, provides: “Marriage is a personal relation arising out of a civil contract, to which the consent of parties capable of making it is necessary. Consent alone will not constitute marriage; it must be followed by a solemnization, or by mutual and public assumption of the marital relation.” At the time the. ceremony was performed in Toledo,
Section 3614, Revised Codes, provides: “All marriages contracted without the state, which would be valid by the laws
In 1892 the question of the validity of a common-law marriage in Washington was presented to the supreme court, apparently as one of first impression in that jurisdiction. An elaborate opinion was prepared and the conclusion reached that the statutes contemplate a ceremonial marriage only, and that a common-law marriage is not valid there. (In re McLaughlin’s Estate, 4 Wash. 570, 16 L. R. A. 699, 30 Pac. 651.) That decision is referred to in Smith’s Estate, 4 Wash. 702, 17 L. R. A. 573, 30 Pac. 1059; in Kelley v. Kitsap County, 5 Wash. 521, 32 Pac. 554, and in Wilbur’s Estate, 14 Wash. 242, 44 Pac. 262.
In Summerville v. Summerville, 31 Wash. 411, 72 Pac. 84, very slight evidence that a ceremony had been performed in British Columbia was held sufficient with evidence <?f cohabitation by the parties as husband and wife to establish a marriage.
In Shank v. Wilson, 33 Wash. 612, 74 Pac. 812, the date of a marriage was the question in issue. Appellants proved a ceremonial marriage celebrated on June 4, 1900. Respondent offered evidence that the parties had lived and cohabited together as husband and wife and held themselves out as such for sev
In Nelson v. Carlson, 48 Wash. 651, 94 Pac. 477, there was not any evidence whatever that a marriage ceremony had ever been celebrated between John Nelson' and Christina Alida Carlson. The only evidence was that for several years before the woman’s death they lived and cohabited as husband and wife, were recognized as such by their neighbors, that they joined in conveyances as husband and wife, and upon the death of the woman, Nelson had a headstone erected at the grave upon which her name was inscribed as Mrs. Nelson. The court held that this evidence was sufficient to establish the marriage. A somewhat similar case, with the same result, is McDonald v. White, 46 Wash. 334, 89 Pac. 891.
In the McLaughlin Case above the court said: “In all cases, whether common-law marriages are recognized or not, evidence of cohabitation and repute is admissible as tending to show a valid marriage; holding each other out as husband and wife to the public, and continued living together in that relationship has ordinarily, if not universally, been held sufficient proof, unless contradicted, to establish it, even within those states where common-law marriages are mot recognized. This presumption could always be rebutted, however, by showing that the parties intended their connection to be illicit, and, if it was so intended at its commmencement, it is presumed to continue, unless evidence is produced of a change of mind.” It then quotes, and apparently with approval, sections 970-975 and 979 from 1 Bishop on Marriage, Divorce and Separation.
In the Summerville Case above, the court quotes from 1 Bishop on Marriage, Divorce and Separation, section 956, as follows: “Every intendment of the law leans to matrimony. When a marriage has been shown in evidence, whether regular or irregular, and whatever the form of the proofs, the law raises a strong presumption of its legality; not only casting the burden of proof
In Shank v. Wilson the court said: “It is well-established law, not necessitating the citation of authority, that the proof of continual cohabitation of a man and woman, and of a continual assertion that the marriage relation exists, and proof of such conduct as is consistent with the marriage relation, raises the presumption in those states where the common-law marriage itself is not held to be a legal marriage, that the ceremonial or legal marriage has preceded the acts mentioned.” It also reaffirms the doctrine announced in section 956 of Bishop as quoted in the Summerville Case.
In Potter v. Potter, 45 Wash. 401, 88 Pac. 625, the question whether there had been a marriage ceremony performed was in sharp dispute. The court again refers to the decision in the Summerville Case and says: “In a conflict of testimony such as is shown by the record in tMs case, it is well established that a ceremonial marriage may be proven by circumstances, such as the cohabitation of persons as husband and wife, their reputation and recognition as such in society, and that, when such circumstances are shown, the presumption of marriage exists, and the
In Sloan’s Estate, 50 Wash. 86, 17 L. R. A. (n. s.) 960, 96 Pac. 684, the court said: “The presumption of marriage, from a cohabitation, apparently matrimonial, is one of the strongest presumptions known to the law. This is especially true in a case involving legitimacy. The law presumes morality and not immorality; marriage and not concubinage; legitimacy and not bastardy. Where there is enough to create a foundation for the presumption of marriage, it can be repelled only by the most cogent and satisfactory evidence.”
In Thomas v. Thomas, 53 Wash. 297, 101 Pac. 865, the language of section 956 from Bishop, quoted in Shank v. Wilson, añd in Summerville v. Summerville, is again reproduced with approval.
Finally, in Weatherall v. Weatherall, 56 Wash. 344, 105 Pac. 822, all the preceding eases are reviewed at length and the court sums up its conclusion upon the status of the law in Washington, as follows: “We have reviewed the cases in this court for the purposes of showing that there is no real conflict between the earlier and later ones on this subject. We have seen that in the McLaughlin Case it was stated by Judge Scott that, in the states where common-law marriages are held invalid, a lawful ceremonial marriage may be presumed from cohabitation and reputation. The logic of that case has been liberally applied to the facts in the later cases to uphold the marriage relation, where the parties have lived together as husband and wife, and held themselves out to the public as sustaining that relation. * * * Whilst language may be found in some of the earlier cases which tends to support the judgment, the uniform and unbroken current of opinion in this court, as we read the cases, has been that, while a common-law marriage is invalid in this state, evidence of cohabitation and reputation is admissible for the purpose of raising the legal presumption of a prior ceremonial marriage.” While in the earlier eases it was held that there could not be a common-law marriage in Washington, in Willey v. Willey, 22
The same authorities cited by the Washington court in the cases above were cited and relied upon by this court in Hadley v. Rash, 21 Mont. 170, 69 Am. St. Rep. 649, 53 Pac. 312, where was called in question the validity of the second marriage of Daniel Rash. The court held that evidence that Rash had married the second wife and had lived and cohabited with her would raise the presumption of a divorce from the first wife and a valid second marriage. “That a man and a woman deporting themselves as husband and wife have entered into a lawful contract of marriage” is one of the presumptions declared by section 7962, Revised Codes (30).
Because in our opinion the evidence is sufficient-to disclose a marriage valid in Washington at the time of Huston’s death, we are compelled to recognize this respondent as his surviving widow. For this reason the order above is affirmed.
Affirmed.