14 Wash. 242 | Wash. | 1896
The opinion of the court was delivered by
The matters presented for determination in this case arose out of an application filed in the superior court of Skagit county, by Sarah J. Wilbur, ad-ministratrix of the estate of John T. Wilbur, deceased, for the allowance of her final account as such administratrix therewith presented, and for a decree of distribution of said estate and decreeing to her as' the surviving widow of said deceased, the whole of said estate and for her discharge as such administratrix. To this application three separate protests were filed, one by an Indian woman known as Kitty Follansbee, claiming to be the lawful wife of said deceased, and one each by John David Wilbur and Charles Andrew Wilbur, claiming to be legitimate sons of said deceased. In each of these protests objections were made to the final account of said administratrix, to the distribution of said estate as prayed for by her and to her ■discharge as such administratrix, and, in addition to such objections, each of said protestants set up her and his claim to share in the distribution of said estate according to their respective claims as heirs of. said deceased. To these protests Sarah J. Wilbur filed her reply denying the allegations therein contained touching the heirship of said protestants and their right to share in the distribution of said estate. Upon the issues thus formed a trial was had on the 21st day of May, 1895, before the Honorable Henry McBride, judge of said superior court.
The material findings as to the questions presented were in substance as follows: The court found as a
The court further found that said John T. Wilbur continually, openly and publicly acknowledged said boys to be his legitimate sons.
As conclusions of law the court found that the so-called marriage was void under the laws of the territory, and that said Indian woman was not entitled to share in the estate, but found that the two surviving children aforesaid, were legitimate, and were entitled to take as heirs of said John T. Wilbur.
Two appeals were taken and are contained in the one record as follows: The Indian woman Kitty Fol-lansbee appeals as against Sarah J. Wilbur and Sarah J. Wilbur appeals as against John David Wilbur and Charles Andrew Wilbur.
For a former appeal in this same estate see 8 Wash. 35 (35 Pac. 407), which has some bearing upon the questions now before us. It is contended that Kitty Follansbee was not bound by the decision there rendered because she was not a formal party to that proceeding. It is evident, however, that Bingham applied in her interests, as well as the children’s, for appointment as administrator, and she testified in support of his application upon the contest. But without referring to that question further, we will consider the matters involved in her case now presented, first directing our attention to the finding of fact as to the time the
Furthermore, conceding that the marriage took place as late as June, 1868, and that there were no miscegenation acts then in force in the territory, the case would fall within the rule announced in In Re McLaughlin’s Estate, 4 Wash. 570 (30 Pac. 651), and Kelley v. Kitsap County, 5 Wash. 521, (32 Pac. 554), and the same would be true if it took place in 1867. Counsel for Mrs. Follansbee have attacked the correctness of these decisions as applied to marriages or such attempted marriages, which took place while we were a territory, and contend that the supreme court of the United States has directly sustained them in Meister v. Moore, 96 U. S. 78, which was referred to in the McLaughlin case. But we have regarded that case as following a construction of the supreme court of Michigan of a Michigan statute and not expressly going beyond that.
• In relation to the appeal of Sarah J. Wilbur we do not find it necessary to examine many of the acts of the territorial legislature cited by counsel relative to the legitimatizing of, children born of parents living together as husband and wife, who in fact had never been lawfully married, as the judgment in relation to John .David and Charles Andrew Wilbur can be affirmed under the provisions of an act passed November 12, 1875, relative to adoption. Laws 1875, p. 110. The proof was sufficient to sustain the finding of the lower court in this respect in that said children had been legitimatized by adoption. It is contended by counsel for Sarah J. Wilbur that this
Affirmed.