129 Iowa 542 | Iowa | 1906
Luther E. 'Colton died intestate, October 30, 1903, leaving forty acres of land and personal property worth about $1,000. He was married to Eliza A. Shaw on the 4th day of September, 1886, and lived with her up to the time of his death. She applied for an allowance for support March 4, 1904, the consideration of which was deferred, owing to a similar application by Frankie Colton April 12th following and a claim of ownership of all exempt property and an undivided one-third of the estate. The pleadings were such that the issue as to which of these women was the lawful wife of Colton at the time of his death was raised. Prior to the trial Eliza died, and the administrator of her estate, Etta Mattausch, filed petition claiming the allowance sought by her decedent. N. E. Colton, administrator of the estate of Luther E. Colton, denied knowledge or infor-. mation sufficient to form a belief. That Frankie Boon was .married to the deceased at Parsons, Labette county, Kan., December 1, 1875, is conclusively established by the evidence. Indeed, this is conceded. She was his second wife. They remained there about two weeks, when he left for Des Moines, and she followed him in about two months, and they lived there more than a year. A child was born, and shortly afterwards she returned to Parsons on a visit. According to her story this was at his instance, and after a brief stay she wrote him of her readiness to return, to which he responded by saying he did not intend her to come
In Goodwin v. Goodwin, 113 Iowa, 319, it was said that the presumption in favor of the validity of the last
In the case at bar it appears affirmatively that deceased had no ground upon which to obtain a divorce from bis second wife, Frankie Colton, and for this reason the cited cases are directly in point. To obviate this conclusion appellee insists that she deserted her husband, but no evidence to this effect was introduced. Her testimony, that she went back to Kansas on a visit and offered to return, is undisputed, and was received withoxit .objection. Even if she did leave him on her own motion, however, no divorce