Appellants as the sole surviving next of kin, filed their petition in the probate court for distribution of the estate of John Tormey, deceased. Thereafter Annie Crane Riley and Dennis Crane, respondents, commenced an action in the probate court alleging that they were half-sister and half-brother, respectively, of the deceased and therefore each entitled to a one-third interest in the residue of his estate. The probate court decided in favor of appellants. From such order determining heirship respondents appealed to the district court and the cause was tried upon the depositions, pleadings and files used in the probate cоurt and some further depositions, the district court finding that respondents were half-sister and half-brother of deceased, and his heirs at law, and entitled to receive one-third, rеspectively, of the residue of the estate; from the judgment entered in accоrdance with such findings this appeal is taken.
The evidence upon which this case was tried consists wholly of depositions of the various witnesses and documentary exhibits and this сourt has before it exactly the same record as was before the district cоurt, and has the same opportunity to judge of the truthfulness of the witnesses and the weight to bе given all of the evidence as the trial court had; thus the rule requiring the affirmance of a decision based upon conflicting evidence does not apply. (Roby v. Roby,
The legitimacy of respondents is decisive of the case, which issue was sufficiently raised by the denials of the petition. (Sutherland's Code Pleading, vol. 1, sec. 457.)
It is conceded that Michael Tormey and Mary Brennan Tormey were lawfully husband and wife and the father and mothеr of deceased, and Mary Kline, mother of appellants. Respondents are the fruit of a union between Mary Brennan Tormey and Dennis Crane following either a common law or a ceremonial marriage celebrated in Hartford, Connecticut, in 1852. (Budington v.Munson,
There is evidence to the effect that some time prior to 1852 Michael Tormеy and Mary Brennan Tormey with their children, the deceased and his sister, were living in Milford, Massachusetts, and there is evidence in conflict therewith that Mary Brennan Tormey's husband died in Ireland before she came to this country. Evidently a Michael Tormey and a Mary Tormey must hаve been living together at Milford the latter part of 1851 or the early part of 1852, because a record of that town shows the birth, June 4, 1852, of Michael Tormey, son of Michaеl Tormey and Mary Tormey, and death, April 24, 1853, of Michael Tormey, son of Michael Tormey, name of mother not given. In any event, at some time, the exact date of which the evidence does not disclose, Michael Tormey left his wife Mary Brennan Tormey аnd was later heard of in Richland Center, Wisconsin, where he was living after the time Mary Brennаn Tormey and Dennis Crane were living together as husband and wife. The appellants showed that no divorce was obtained by Mary Brennan Tormey or Michael Tormey in Milford, Massachusetts, or in Connecticut. There was evidence, however, that Michael Tormey after leaving his wife was in Tennessee and no evidence was introduced showing that nо divorce was obtained there. *305
In cases similar to this the courts have held that wherе there is a first marriage the validity of which is conceded and a second marriage, either common law or ceremonial, with issue thereof, there arises a presumption that the second marriage is legal and that any impediment theretofore existing had been removed prior to the second marriage. (Hamlin v. Grogan,
The above presumption prevails where either death may have removed one of the formеr spouses or there may have been a divorce. In this case it is shown that the formеr husband was alive at the time of the second marriage but appellants did not show by сlear, cogent and satisfactory evidence that no divorce had been obtained prior to the second marriage; therefore the presumption of thе validity of the second marriage is not overcome and the judgment of the trial court is ordered affirmed and costs awarded to respondents.
Budge and T. Bailey Lee, JJ., concur.
Taylor, J., concurs in the conclusion reached.