235 N.W. 529 | Minn. | 1931
This is a contest between the appellant above named and the respondent, Henrietta Ommang, as to who is entitled to administer the estate of one Nick Ommang, a resident of St. Louis county, in this state, who died intestate at Duluth in said county on March 13, 1929. Appellant is a half sister of the decedent and claims to be one of his heirs at law entitled to the estate and to be entitled to have an administrator appointed. Respondent claims she is the widow of the deceased and his sole heir and entitled to have an administrator appointed. The probate court of St. Louis county found against the respondent and held she was not the lawful wife of the deceased prior and up to the time of his death. On appeal to the district court, that court reversed the probate court and held *94 that respondent was the lawful wife of the deceased prior to and at the time of his death, his sole heir at law, and entitled to have an administrator appointed.
The decisive question here presented and argued is whether the trial court erred in holding that respondent was the lawful wife of Nick Ommang at the time of his death. Some other matters are assigned as errors in the brief but, as we view the case, are not important or decisive.
1. In 1907 Nick Ommang and respondent, whose name was then Mrs. Seligman, were residents of Superior, Wisconsin. Respondent had secured a divorce from her husband on January 2, 1907. On August 7, 1907, respondent and Nick Ommang went to Duluth and were there lawfully married. They returned to Superior immediately after the marriage and lived there together as husband and wife for about two years. They then separated and decedent moved to Duluth late in 1909 and there resided until his death. Respondent remained in Superior for about two more years, then moved to Duluth and resided there for three or more years. She then came to St. Paul to live with a daughter of her prior marriage and has since resided there. After their separation decedent met and visited the respondent from time to time, but they did not thereafter live together. After respondent moved to St. Paul decedent visited her there many times. At one time he took her out to entertainments there. He gave her money at times. He asked her to come back and live with him. One time, at his request, respondent came to Duluth and stayed with decedent in his room over night. He wanted her to remain, but she did not like the place or surroundings where he was living and left the next day. This evidence, while it does not clearly prove cohabitation by the parties in this state, does show that decedent recognized the marriage relation existing between them and acknowledged respondent as his wife after both parties had become residents of this state. We do not hold that actual cohabitation in this state, under the circumstances shown, was necessary.
The marriage of the parties in this state, more than six months after respondent had obtained a divorce from her former husband, *95 was a valid marriage under our laws. Its validity, at the time of the death of one of the parties in this state, after both parties were and had been residents of this state for many years, is now attacked. The marriage has never been set aside or adjudged invalid.
2. The general rule, that the validity of a marriage must be tested by the laws of the state or country where the marriage ceremony was performed and that a marriage valid where performed is valid everywhere, as well as the exceptions to the general rule, has been argued. The general rule is followed in this state. Earl v. Godley,
3. The ground urged by appellant for holding the marriage invalid is that the law of Wisconsin, wherein the parties resided at the time of the marriage, provides that it shall not be lawful for a divorced person to remarry within one year after the judgment of *96
divorce was entered, and declares any such marriage, within the year, null and void. The Wisconsin court, in Lanham v. Lanham,
4. This court, as stated, has consistently followed the rule that the validity of a marriage is to be tested by the laws of the state or country where it was performed. In McHenry v. Bracken,
In Lando v. Lando,
The Meisenhelder case,
The case of Cummings v. U.S.
Other decisions cited by appellant have reference to cases where the marriages were performed in states other than those wherein the actions were tried. They are decisions from the minority group of courts, which hold that where residents of the forum go to another state to be married, with intent to evade the law of the state of their residence, and the law of the forum expressly declares such marriages invalid, the court will enforce the law of its own state and hold such marriages invalid. The decisions of this state point rather to the majority rule. We have no law like Wisconsin and Illinois, declaring that where residents of this state go to another state to be married, with the intention of evading the marriage laws of this state, such marriage in another state shall be here invalid. *98
5. The case of State v. Yoder,
6. Counsel urge that the parties came to Minnesota to be married with the intention of avoiding the Wisconsin law, and therefore the marriage should be held invalid here. We are not prepared so to hold. The marriage was legal in this state, and the parties did not evade or seek to evade any of our laws.
Counsel cite the later Wisconsin statute, enacted several years after the marriage of the parties. That can have no application to prior marriages and adds nothing to the Lanham case,
Order affirmed. *99