*1 SUPBEME COUBT OF MISSOURI, Perkins v. Silverman. OLIVE Alias OLIVE PERKINS, KARSHNER, v. GER
SON B. SILVERMAN, Administrator of Estate PEARL Appellant. KARSHNER, D. Two, July 19,
Division 1920. Equitable 1. WIDOW’S RIGHT Proceeding. IN PERSONALTY: concerning rights personalty Controversies the widow’s in are equitable proceedings, judge triable court circuit alone, appellate proceeding and triable novo in the de court. A involving question whether the was the common-law wife of decedent and to the articles entitled statute allowed property, to the widow as her absolute or in lieu thereof to a rea- money, court, upon appeal sonable sum of tried in the circuit probate a disallowance in the court, is suit the nature of a equity, alone, suit in triable before court and triable in the n appellate ' ele novo. court Newly Newly 2. NEW TRIAL: Discovered Evidence: Cumulative. dis- evidence, presented support covered in the form of affidavits in trial, the motion for a new to the effect that ill- was of repute reputation chastity and bad for both before and after alleged making an contract of between de- her and cedent, reputation if evidence was offered at the trial that respects bad, merely cumulative, these and therefore con- ground stitutes new no trial. proceeding by plain- 3. FAILURE TO CALL WITNESS: Burden. In a right personal tiff to establish to share in decedent’s estate widow, as his is on her to establish burden mar- a common-law riage duty them, between it is her to call witness with familiar, testimony she is whose and no unfavorable inference can lawyer be drawn from the administrator’s failure to call the who previously pro- wrote decedent’s will and who testified in the proceeding. court bate same 4. MARRIAGE: Elements of Contract. constitute To mar- valid riage, law, be, statute common either under the there must first, capable contracting, second, and, one man one woman they contract, by must enter into assume re- joint lives, lation husband and wife must both neither, both, understand that nor can rescind the contract or de- stroy the relation. TERM, Vol. APRIL Presumption. Prior Relations: MARRIAGE: Illicit COMMON-LAW illicit the evidence relations had existed Where establishes prior *2 long their en- decedent for a time to and between marriage, alleged such contract of trance common-law into continue, presumed is the burden relation is and meretricious to satisfy a new to of the court that real her conscience and marriage thereafter, by relationship agreement, in of mutual' good faith, between them. entered into testimony girl, a Insufficient of
6. -: -: Evidence. seventeen, years age of and now that she time thirteen part casually and overheard a of a conversation between adjoining room, decedent, the effect de- an to that who were mother) plaintiff (her he her asked that and cedent told loved replied wife, mother she if be his which her her she would to agree wife, by to his followed a statement loved him and would presence by shortly at dinner decedent afterwards agreed he had wife and that her mother be his that mother personal apartment her trunk and other effects to would move his occupied day, did, they the next and thereafter alleged being person present, bed, no other at the time same gave particular place, no that she attention conversation took and anybody’s business, repeated it, and had did not think it was it years, only then it and told when the one for three or four to no right by her as widow to suit mother to establish share contemplated, is sufficient estate was to establish decedent’s marriage contract between her mother and de- of a common-law previously cedent, illicit relations with each had sustained who respect of serious for the whom had mar- and neither other riage relation. Repite. holding -: A out themselves as husband -: previously by wife, woman had their a man and who al- and marriage leged sustained contract illicit sexual common-law theaters, other, exhibitions, automobile each relations with among trades-people, repute reputable such his where hotels and peace necessary as a dealer in success auto- was mobiles, among places and his relatives and em- at all other and they wife, generally, ployees, were not husband and estab- and repute, and mottled is not sufficient to estab- at best a lishes state. matrimonial a lish Subsequent All facts and circum- Acts. Evidence: -:' by stances, done either the man said or or woman and competent by either, prior in the suit sur- death of are a relation between the existence of vivor to establish upon them, placed a common-law contract. reliance where SUPREME COURT OP MISSOURI, sign document,. 9. -: -: upon Settlement A written Document. acknowledged by plaintiff ed oath free act deed, in it had which was1 that she been decedent’s house stated right keeper property, they and claimed never no together and had lived as husband married paid that in him estate $200 consideration released and his demands, prior death, of all made claims and few months to his acceptance by money by her, preceded an followed by cohabitation, simply followed cannot be futile considered ignorance law, prior them, effort made in to dissolve alleged marriage, prior its execution shows contract together out of wedlock and continued to so do afterwards. -: Denial in Will. An
10. -: admission in a Decedent’s signed acknowleged written under free oath as her document woman, man in act a statement his last will hand, in full that death was at which both state consciousness single expressed unmarried, are in the clearest *3 impressive terms, of is evidence most character their re- the that lationships not and to each other of husband wife were those and had been. Appellate 11. Suit for Deter- -: Jurisdiction: Widow’s Allowance: Claiming decedent, Companion by Suit. the widow of mined to be probate against began separate proceedings plaintiff in the court prop- (1) to the to establish her claim absolute the administrator by erty given statute in lieu the and to choose thereof the widow (2) to establish her claim the authorized the statute and $400 debts, asserting personal estate, subject the to one-half pro- only Both denied in one claims were decedent child. the left appeals court, separate court, to the circuit and took bate and she agreed by parties that the her claim as'widow it was that court first, property the the be tried and the should issue absolute pro- judgment first. the the In both other claim ceedings abide should and relation of husband whether the the issue was real and decedent reason of between existed wife had marriage, court the and circuit found of the common-law contract decedent, death she “was at the of issue for decreed portion such his estate is entitled to receive judgment statutes,” provided by admin- and from the parties appeals. it was both trial admitted At istrator $20,000 that decedent left exceeded of the estate value probate only child, in evidence records one and the introduced $30,000, personal there to be worth over showed estate one for $30 allowed was and that claim no debts re-hearing, support Meld, the child. on month Supreme estate, personal is one-half amount involved appeal. jurisdiction Court has TERM, £PRIL
Perkins v. Silverman. Appeal from Jackson Circuit Court.—Eon. Daniel E. Judge.
Bird, (with Reversed directions.) BoJiling é
Lamm,
'E.
Lamm, John
Burden and Ger-
appellant.
B.
son
Silverman for
(1)
re-
distribution'
This
obtain
is a suit to
spondent
alleged
of an
widow’s share
1909,
under
R. S.
estate
Secs.
de-
alleged
wife; the
an
of husband
establish
status
deceased,
respondent
widow
fense was that
having
(a)
is that suits
better doctrine
personal
well as
purpose
estates, as
the distribution
set-
and final
pertdining
administration
to both the
suits
jury,
of an
are
not triable
estates, are
tlement of
appeal here, this
equitable
therefore,
nature,
facts
both on the
the case,
court hears
determines
equity.
precisely
inwas
as if the suit-
and on the law,
Largue v.
In re Estate
Perlrins 229 Bishop Co., Brittain Inv. public. v. relatives and the Topper Jones, Perry, Nelson v. 545; 197Mo. 727; v. Mo. ;Mo. 536; Wil- 149 Mo. Galbraith, 597; v. 245 Banks Kennedy, 207 252: v. 259 State Williams, Mo. liams v. Pegg, Pegg In re Smith’s 572; Iowa, 138 536; Mo. v. Supp. . Y. 730. 133 N. Estate, ^ ' respondent. Kyle Harry G. not impeaching does evidence (1)
r or Cumulative v. Folding Co. Bed grounds new trial. constitute Eailway, 167 Mo. v. Eailway, 484; 148 Mo. Gardner App. Eoth Eailway, 144; 183 Mo. App. v. 605; Stahlman Lyons App. Eail- v. 429; Grocery 183 Mo. Hotel, v.Co. App. Storage Mo. 138 Co., way, 143; Ford v. 253 Mo. App. Park- 249; Stamping 144 Mo. Wicks, 512; Works v. Eoyal Insurance, Blake 1073; v. 109 S. W. Louis, er St. v. (2) Devoy 192 Mo. Louis, v. St. 1000; 112 S. W. is- marriage The valid Missouri. is A common-law marriage cere- license the celebration suance mony of a marriage. necessary constitute valid marriage woman man A when common-law exists agreement husband and wife, an to be enter into together pursuance agreement, live cohabit of such out each other to the as husband hold public Butterfield Ennis,. and wife. 193 husband v. 'Ey. Pope App. 955; Pac. Co., 175 S. W. 638; Mo. v. Mo. App. 193 Mo. v. Kan. Eotter, 110; v. Jordan & State Mo. App. Bishop Inv. Mo. Britton 192; Tel. 136 v. Co., Co., App. Ill 229 Mo. Imboden Trust Mo. Co., 699; v. 220; Topper persons Perry, (3) Mo. When live together reputed to be and cohabit are married, presumed presumed are as will not to be it married, presumption have violated where law, marriage has once so arisen, it can be overthrown cogent only by proof. presumption the most arising circumstances, strong- under such is the presumption est known law. Evidence, Jones *6 MISSOURI,
244 COURT OP Perkins v. Bishop Jack-
p.
699;
Inv.
229 Mo.
Co.,
Brittain
v.
101;
Mo.
222
879;
Brock,
140 S. "W.
Maier-v.
Phalen,
son v.
(4)
App.
A valid
116
405.
Plattner,
74; Plattner v.
Mo.
'agreement
into,
entered
once
of common-law
together
cohabiting
parties
living
‘the
thereto
holding
each
out
husband and wife
public
other
or dis-
as husband and
be rescinded
cannot
competent
only
jurisdiction
them;
solved
court of
Bishop
can dissolve
Brittain
Co.,
contract.
v.
Inv.
App.
699;
229'Mo.
Tram-
Co.,
192;
Tel.
Mo.
Jordan v.
136
Vaughan,
Coy Humphreys,
mell
142
222;
v.
158
v.
Mo.
App.
proved
(5) marriage
A
may
Mo.
92.
contract
App.
contracts.
;
other
v.
Mo.
Stouffer,
Davis
132
555
App.
Imboden v. Trust
Ill Mo.
Co.,
220; Plattner v.
App.
(6)
116
Plattner,
suf-
Mo.
The
was
evidence
marriage.
ficient
show
v. Ennis,
Butterfield
193 Mo.
App.
Pope
App.
638; State
193
v.
Rotter,
110;
v.
Mo.
Mo.
S.
Pac.,
The administrator annexed filed a probate putting paper in court said issue claim each denying respondent especially filed ever was of or Karshner. the wife widow said probate court The due course heard the evidence holding plaintiff’s and denied claims, that she was of the wife said his widow or entitled -to allowance interest his estate such. appeal parties agreed
On court, the circuit personal property claim under 114, Sections COURT MISSOURI, OF ^ 115 and claim 116, would be tried the second first, and under plaintiff Section on the issue whether of judgment widow of on decedent, should abide the the first claim. The an as to circuit court made order accordingly. -the trial of said The claims cause was there- upon up by jury taken being and tried no call- court, party. ed for testimony, either At the close asked for two declarations which law, of given, and the defendant asked for demurrer testimony, The which was refused. case was taken subsequently under advisement, filed a the court' finding written of facts, review of the law*, also a pursuance plain- found of the court issues judgment tiff, rendered that she the wife said Karshner at the death, time as such was en- portion provided titled to receive such of his estate as moving unsuccessfully the statutes of Missouri. After appellant appealed for a new trial,'the this court. day evidence on showed the 4th June, by was divorced B. F. husband, Perldns, County, a decree Court Circuit of Jackson thirteen-yeai’-old ground daugh- and the desertion, the ter, given Fay custody Beatrice into Perkins, *8 day 12th father. That on the of the 1912, December, Pearl I. the wife of Karshner, Josie D. ob- in tained divorce said court from him, circuit and she custody twelve-year-old the was awarded son. Both the Karshners and the Perkinses had in resided City years. for some Kansas There was statutory or between ceremonial and claim is, however, Karshner. The said there agreement July, made on about the 10th verbal be husband and 1913, wife, would and that cohabited as times thereafter husband all and wife reputed out and were themselves to and be held husband up till Karshner’s the time death. and wife Karshner eight years business for in the automobile or ten July 15, died He death. before APRIL TERM, support verbal in said direct evidence agreement plaintiff’s given Fay Perkins, said eighteen daughter. At was about the time of trial she years That testified: old. On she direct-examination, Benjamin That her father’s Franklin Perkins. name was City and moved to Kansas her father mother and herself years she when attended was six old. That she public Agnes’ and schools, and St. Theresa also, St. City, years four of her convents in and last Kansas Academy school life Heart at Cedar attended Sacred Rapids, Rapids, she come Iowa. at Cedar While would spend City sum- home to Christmas Kansas always with mer her mother. vacations. That she 4, That June 1913, her father and mother divorced were together years living about three had not been traveling man. and her before. Pier father was a She July 1913. She 8, moved mother 1425 Central Street met Pearl 1910. She her mother D. Karshner. living Washington then Hotel. Karshner were night upon she them at 1425 Central Street called and he was there there, and her mother moved July evening 10th. while 10th, 9th That dining Karshner mother and her room, she was part of a. conver- she overheard kitchen, Mr. Karshner tell mother them. heard sation between “I quite some her, and had loved had loved agree would know she be his if time, and wanted ‘Yes,’ loved -would him, mother said, during agree And dinner Karshner his wife. to he Mr. agreed wife that he to be that she told me things day. next down there the Mother move his would happy we would to- him and that loved said she night .July gether.” On the occupied brought clothes the same bed his trunk occupy They plaintiff. continued to the same bed with night’that witness summer, until returned every *9 Rapids. came back When she Christmas, school at Cedar living were Karshner at the mother and Cor- her MISSOURI, COURT OP
Perkins v. When, her June, 1914, dova Hotel. she came home living mother at and Karshner were West 13th in a Kenilworth. Karshner and Street flat known as the occupied place until her mother bed this the same at July came home from he died, time Witness ' part May, academy Karshner in the latter hospital. he was there was taken she until When postal away letters school, addressed cards to her mother Mrs. P. D. 305 West 13th Cards dated addressed, Street. so March April, April, 1915, and 1916, were introduced evi- Her mail dence. mother’s was addressed to her at that People number as Mrs. P. D. Karshner. her called telephone Mrs. mother The bills over Karshner. expenses place mostly were household order- paid her mother and for Karshner. ed At one time Karshner’s brother was at 305 13th West Street and calling introduced him her mother, her mother, Mrs. Karshner. Karshner’s sister was there for dinner her Her with brother. .name was Mrs. Black. Mrs. Both Black addressed her mother as Mrs. part Blacks south Karshner. The of Kansas City, mother them at Karsh- visited home. her bring occasionally acquaintances ner would business house. and her to the mother would ride out She with go and also men, Karshner and these hotels They with them. addressed her dine clubs mother as among Karshner. them Chief Others, Mrs. Henderson Department, City Fire and his sister-in-law They niece, called her mother Karshner. Mrs. also Oglebay, always visited Chief Henderson’s house. Mr. spoke garage mother when around Karshner’s and addressed her as Mrs. Karshner.
On witness cross-examination, stated that she and Chicago in They mother moved to December, 1916. some time, not ever since. there Her mother supported money Pier mother her. had a little after *10 Yol. 284] AP.KIL TEEM, Silverman.
Perkins v. her, Karshner’s death. Also diamonds she sold Company Oppenheims’ Typewriting worked for in Chi- cago, money from' did not received work, Witness Eapids. noat her worked father in Her mother Cedar (cid:127)place Oppenheims four months. other than for three Chicago. places They at in lived three or four different Rapids, her Witness visited her while father Cedar Chicago; mother in a month. Her father staid there Eapids. again to was married at Cedar and lived As relating contract that the conversation ‘‘ Mr. I remember Karshner said heard, said, she had she her for to mother he loved had loved some her, agree if she time, wanted know be his would to it. she That exact as can She wife. I said come agree I wife. was as much as would to be his That pay it.” heard. I attention to Witness much didn’t anyone conversation to until she never mentioned that Kyle’s mother. It was no- in with her Avas Mr. office body’s other She never knew ten- business. witness flat at 1425 Central Street. Here ants Perkins endorsed on a check name Olive identified the Commerce, Bank dated on SouthAvest National handwriting City, 5/1/1916, as the of her Kansas Mo. payable made It was for the order $200 mother. signed by check was Karsh- Perkins. of Miss Olive Company, D. Karshner. It P. Motor Car .ner They “paid, May 1916.” continued: Witness marked Washington Hotel she first when became acquainted Her with and mother Karshner. father separated for about three or before divorce were ga- years. Karshner at called on Her four mother rage, him Avith meals town res- took down places with him to went around different taurants, frequently City, other’s each Kansas company, her From her father divorced mother. before Washington her she and moved to the Hotel, mother garage was then BrunsAvick Hotel. Karshner’s Brunswick. He for her to take block next called mother’s not come to while she room, did a ride, but COURT MISSOURI, OP was there. Prom her mother she and Brunswick, moved to 923 Penn then moved to the John Street, St. 10th Street. West there Karshner While used riding come over and take her mother the wit- with out That ness also alone. father before her divorced her mother. Prom St. mother John, *11 Wyandotte They moved to the year Hotel. a there lived Karshner called her or'two. for mother at the Wyandotte just the he at Hotel, did the other same places. During time, all of this and her mother would she garage. Wyandotte call on Karshner at Prom the his they Hotel moved to Central and from Street, there, they with Cordova Hotel. Then got moved to 305 13th West Street. home in Witness May, 1916; Karshner at time had trunk at the slept Bray Hotel, but he there, but had room She mother there. and her there and twice went called on up. They Karshner. Pie them to went come with asked They him after some of his clothes. took the clothes back why to 305 13th Street. did not West Witness know Bray Karshner went Hotel. “It was kind some ’’ something. quarrel good aof or Karshner awas friend Oglebay. sister Karshner’s their house two or testify times. Asked whether witness did not three be- Judge (Judge Court), fore of the Probate Guinotte May, when she came home she was informed Bray living replied,. Hotel, Karshner was she guessed “Yes;” she that she said that he lived there apartments died, her until he but he was at mother’s apartments quite came her time, bit into garage, from the rear from his on the afternoon he was up very taken sick. He came there to down; lie he was day sick. there a then two, He staid taken hospital. away to the Witness said she testified before Judge and her she mother went to the Guinotte, Bray Karshner asked them Hotel, because to come down, just she did remember what talk, about. About died, she her Karshner week after mother went to bright show. mother dressed the automobile Her. TERM, APRIL clothes and In yellow Judge wore sweater. G-ttinotte’s after summer, court she was That dressed black. her clothes bought Karshner’s death, mother her wear black then, she could not afford to summer, and dia- some She had bought black for winter. her $1,000, gave worth Karshner possibly monds gave He her good were all stones. also diamonds; clothing. going her Before jewelry, paid all of and her mother Hotel, up Bray up went together, witness to eat had been out them clothes took home. After and-got some mother to Miss 1st check (when got May payable slept with her mother as Perkins) Olive of his death. At this point, until the before, time up signature “Olive Perkins” witness identified signature as the and'affidavit, document following mother: May, day agreement into this 1st made entered “This *12 part, D. Perkins, party by first Pearl of and Olive the and between City, part, Karshner, Jackson party Kansas both of of the second County, Missouri. performed “Witnesseth, certain ser- Perkins has that said Olive caring party keeping of said house and about vices and right, party any other title or part; neither claims that the second personal; other, property that real or of whether in the interest wife; together that husband they or never married and were any part, party not other especially does make first the said of the except part, against party of of the second that claim said by party second her said of the above rendered value services dollars, part, two of the sum of hundred in consideration and now hereby acknowledged by party receipt the said of the first of which is part, Perkins, now this Olive Perkins instrument Olive said any party, from said Pearl D. and claims releases second any and character and now disclaims nature claim and any whatever assigns party, heirs releases second forever said may future, may now or have that hereafter claim she have against party. second now, party parties especially “Further both second that denies any against party, party party second has first claim second any obligation any way party, he is under first denies that adjust party party that first claims
better differences second owes part, her, first after the from and the party execution MISSOURI, COURT OE Perkins v. Silverman. party nothing claims first instrument second and that all owes ker against party has in full. second is satisfied Perkins. “Olive Missouri, “State County of Jackson. personally party appeared, “Before described me Olive Perkins foregoing acknowledged instrument, 'the executed duly foregoing deed, being as her free act Olive said (hat upon says sworn or oath she is now and claimed to be the wife of the Pearl said D. Karshner. “Olive Peeicins. “Acknowledged and 1st subscribed and sworn to before me this day May, “Geo. Hokn' “Notary County, Public, Jackson Mo. (Seal) “My expires March, day commission on the 7th 1920.”
Continuing, by- the witness said on re-examination Kyle: employed Mr. That mother was never housekeeper, Karshner as Geo Horn was Karsh- lawyer. ner ’s plain-
A number of other witnesses testified tiff took the to several automo- City Indianapolis, bile Kansas shows also to the Joplin. State Pair at Sedalia, also to At all of parties, they shows, these as well as at some attend- City, ed and clubs in hotels Kansas was introduced Karshner as his lie also intro- persons Indianapolis, duced her as his wife he met at Joplin, going returning Sedalia and on the cars or registered from places there, at the hotels in those and wife. generally as husband That reputed, among *13 least automobile at dealers Kansas City, plaintiff to and wife. be husband Also that told employees, manager of Karshner’s one and also the of apartments prior one of where she lived the al- leged marriage, that she was married to Karshner; she this at the time lived with told them she Karshner in the manager Plat. The Kenilworth of Brunswick Hotel, good while that, there, lived she was she re- testified, APEIL TEEM, Perkins
pute. Karshner while Several witnesses testified plaintiff was Hotel, and lived at the Cordova they May, when 1914, until 8, October about reputation at their moved to the Kenilworth' Flat reputed good, they be husband hotel and were . Kenilworth Also or tenants three four .wife. janitor negro including Flat, wives, n agent, they there, while lived testified, the rental reputed they wife. at to he husband While were operation Kenilworth Flat Karshner had an performed Joseph’s Hospital, intro- he at St. surgeon ato as his and also wife, duced the physician .to wife or times who attended his two three which she had. She was known some ailment also they at line Karshner while lived had a credit Mrs. grocery, furniture, the Kenilworth at different Flat, clothing charged stores; the bills and music always paid. generally, Karsh- he Karshner, which if a number these tradesmen as ner introduced her to frequently his or Mrs. Karshner. He also drove wife City Kansas with and boulevards of over the streets people introduced her as wife. different whom .appellant’s showed, evidence hand, On other at which was Street, while Central alleged plain- marriage, date flat, also after other that she Mrs. told one of the tenants, tiff and roomed Karshner boarded During who time, a man this same told house. formerly him, that he was not married worked for marry plaintiff, and would not under eight employees, or ten work- who circumstances. Also garage, part years or all Karshner at five ed for that the death, testified, was never preceding his as Mrs. them introduced garage reputed at the to Karshner’s or
known always Perkins, Mrs. most known as of them but was garage was known as a woman of that at the said employees ill-repute. of these testified that Several bad-repute, places alone with other saw her *14 COURT OP MISSOURI, on bach her, prostitution, men. took Two of them that testified one left her at a house of occasion, and daughter, (But plaintiff’s while lived with Karshner. Pay, was these houses in rebuttal, testified one that respectable her mother whom the home of a woman plaintiff, visited). who knew the customers, Some of of, employees, complained because to one Karshner’s garage. permitting And to around latter Joplin, in who one Karshner’s branch house customer of questionable places plaintiff in said that he had seen complained the man City men, in Kansas with other charge when chances that should there Karshner take Joplin. registering his at the hotel wife the ap- Karshner had room 19, 1913, On November hotel Edward. clerk of that testified The Hotel midnight pellant, was informed Karsh- about he n ner registered had his room. He a woman in had up Karshner over the The clerk called there alone. telephone, would that he have dis- and told him liouse protest, simply company, without did miss saying, right.” Shortly afterwards, “All elevator, stepped left the hotel alone. out Karshner was habit The testified clerk against bringing rules, that on women there one registered room, in another woman but was occasion a both were dismissed room, from in his found or two after That about week when hotel. time reprimanded Karshner on the occasion when the clerk applied again Karshner for a room there, permanent quarters up at the hotel, in which take but guest was an undesirable him that he told the clerk account of his against violating bringing the rules wom- registering them, Karshner without en claimed there brought told his wife. He that he excuse. clerk did not old an understand plaintiff, he inferred wife whether who Karshner’s woman room on the other found both them dismissed occasion when hotel. Yol. 284] APRIL TERM, 1920.
.
Perkins v. Silverman. Llyod, book-keeper, Mrs. had been Karshner’s who *15 employ many years, his such that testified part plaintiff latter her her former that 1915, told again, husband, felt Perkins, had married and that she very badly, always go thought back as she could that she with and live him and now she' time wanted to, she gone. felt that Sutherland, she was Also witness years at 1316 Central constable, who had 32 garage, which was within a few Karshner’s feet of Street, testified plaintiff Karshner that told him that the was him, not name Perkins. related and her was that Mrs. May, engaged About 8th Karshner a room 1916, Bray Hotel, at the which he retained where he lived, up part at least until the time went to the time, he Hospital (University day on 1916. On that he June violently garage, ill only taken at his which was was few from the doors Kenilworth Plat. He went over to lie thereafter down, there a few hours was taken Hospital, University to the where he remained he until plaintiff July accompanied 1916. The him died, hospital and to the room to which he taken there. was operated upon day, appendicitis, he On the was next operation performed had second about three weeks during afterwards. Three nurses attended Karshner his hospital. stay five of them weeks’ One served plaintiff day; first him she testified that was hospital. only known as Mrs. Perkins at the The nurse testified that Karshner told her, who succeeded days during plaintiff the first that he was ten that there, was his he did not want her to not wife and him, visit Dr. for her tell Perkins so. Dr. She told Perkins, plaintiff, says, Perkins, Dr. a witness for the that he subject, Karshner on interviewed Karshner told preferred plaintiff him he that that not admitted to also see him. Dr. Perkins testified that he had seen garage, although around the no one had told him she Karshner’s he wife, knew Was her as until the nurse told him Karshner, Mrs. she was not. during nurse who Karshner The last attended his illness COURT OP MISSOURI, Perkins v. was told her
testified. him. her to see he did not desire his and that hospital, book-keeper Brown was the Mrs. slip and said that out the entrance she made pnt which she Karshner, information from received stating slip, wife his married, was on the down relative, and residence 305 West nearest that, plaintiff also testified Brown Street. Mrs. 13tff hospital known around the time as Mrs. There arose a until Karshner’s death after put hospital controversy down residence Street.” The bill “Residence West 13th stated, bill. Oglebay Mrs. Brown’s attention Horn Mr. Mr. called his residence should have been the matter, *16 “Bray pencil Bray accordingly Hotel, wrote in and she place slip, residence on the entrance Hotel” as the of let which, erase, Dr. told her to however, Perkins entry original Oglebay that testified Dr. Perkins stand. en- the information him that received told plaintiff, Dr. but slip Perkins, Mrs. from trance this. Perkins denied hospital nearly plaintiff visited Karshner at
The days day every he there. She first ten that was for the brow, called him “dear,” his hand, his smoothed held responsive her not ministrations. On one he was but you get occasion, her, he said here?” “How "did plaintiff days, did not call so the first ten After about life his did visit about the last week of not often, and him at all. days, ten Karshner’s divorced
After first hospital. visited him at the Karshner, She came I. Josie day nearly every until he died. He told the nurses that coming. objection no to her had She told he also that plaintiff was wife. that the his nurses June, mother, 18th of his who came from About hospital. him, went to visit bedside, to his Ohio' plaintiff room, his there,' arrived at was When her his as mother Mrs. introduced Perkins. present as witness testified ^mother 1920: APRIL TERM, y. heard both trials. never said she had She that n plaintiff had associated never son knew that her before, from any him or with never heard manner, her family, daughter, her that or her Black, Mrs. plain- when That son or married to her. lived with was Perkins, Mrs. by Karshner to her as tiff introduced nothing. said head and She .her nodded invited her never her, visited never daughter she had Her told visit her. plaintiff, said she had visited visited brother. hospital Karshner made will,
While naming gave brother- her, Ms mother, $2,000, which he note of further Black, interest, in-law, obligation $750 interest, he wished both which $150 and fourth clause of his will cancelled. The follows: as George my City, friend Horn, “Fourth: of Kansas To my attorney Mo., his services me rendered past may my request executor for such services my give, him in I the settlement will and estate, bequeath sum him and $1,000 the fifth his heirs forever.” By clause, property the remainder of his gave to his Kenneth “beloved M. son, Karshner,” single it stated, “I am want known I man and my said unmarried; M. son, Kenneth my I no child; have other children de- ’’ appointed *17 scendants. last clause of the will Frank Olgebay City, M. Missouri, Kansas his executor with- sighed duly out bond. The will was and witnessed on the duly subsequently 26th of 1916, probated. June, , days few before A the will was made, Karshner sent Oglebay, rough for and showed him draft of a will, he said he intended to make, Oglebay and asked if he would as act executor, to which Oglebay as- Oglebay sented. rough then examined the draft of the will, and told ought he to write his explained mother’s name gift full. Karshner 284 Mo.—17 MISSOURI, COURT OF - Perkins v. why- made it. Black, to Ms He also "brother-in-law, he lawyer, Oglebay and he that Horn wanted was his told give past for his services, him and' services $1,000 he taking Oglebay then told him care of the estate. ought terms definitely will be- to state in the of his says Oglebay quest asked Karshner Horn. he then single, whether was he married or he said he rough single. will He left the draft of the with was it he saw in hands of Mr. Karshner, but afterwards Oglebay Horn. also known testified he had Karshner, years. plaintiff, as well some Knew as by sight when lived with Perkins. Had husband, known Karshner about That since had he never always known Mrs. Mrs. Perkins. That he had never had talk with Karshner, prior just he him with conversation before making toas whether will, his married Or not. was bought he had That number of cars Karshner, and kept garage. plain- at Karshner’s cars He called tiff Karshner. Mrs. opened May a bank
Plaintiff account payable date of the $200 check to Miss Olive Perkins made Karshner heretofore depositing mentioned, in the Southwest National $200 Bank of Commerce. opened She account said name of Olive Perkins, and afterwards numerous signed, drew small checks, deposit “Miss Olive until Perkins,” was exhausted deposit July, slip 1916. The produced, was it handwriting admitted to be in the' of Karshner. present hospital Mr. at the Karsh- Horn when arranged presence ner executed his will, for the He did not read the witnesses. the witnesses, will to signed nor did see Karshner it it. read before he very He weak at sign the time, but was able party name. Neither called Horn as a witnéss in the circuit court. He seems, to have been however, called appellant probate as a witness court. *18 TERM, APRIL transcript cross-ex- his Plaintiff offered to read the objected, appellant prohate amination hut court, plain- City ground on the in Kansas Horn was testimony. subpoena his tiff if could him, desired objection Karshner’s This was Neither sustained.. sister, brother, lived in nor Ohio, who State in Oklahoma, Mrs. lived Black, nor her who husband, by party. an There is were called as a witness either question indication, one however, asked by plaintiff’s present witnesses Black counsel/ at the trial the circuit court; in while with Karshner, said she witness Black testified, ill-repute. testimony was a woman of of other present witnesses showed Mrs. Black was probate testify. trial in the court, but did Oglebay qualify failed to Josie I. executor, 'appointed Karshner was and she dur- died stead, appeal. ing this The cause revived in the name successor. \her
Among grounds urged newly new for a trial was relating discovered evidence to the character of the bad chastity, for virtue and both before and after alleged marriage grounds with Karshner, which supported by many affidavits. Plaintiff one affi- filed repuation opposition, davit effect that good while she lived the Brunswick Hotel. question presents
I. The first itself, is whether proceeding strictly this is case at law, so that the find ing upon binding the lower of facts court, us, as ordinary jury, law cases tried the court without a equity whether it is in the of an nature case, ail(t here novo. triable d& We think it has Equitable Proceeding settled been court that such cases are chancery in the nature triable suits as such in probate circuit court, court and de novo as upon appeal to this court. In such Howard v. Strode, *19 MISSOURI, COURT OE Silverman. v. the, 242 Mo. distribution 210, this court held that the by the triable settlement of were by the estate decedent’s judge jury, probate court, and not upon appeal, judge were triable de novo jury. c. circuit The court l. said, and not court, appear 221: “It cases does not in like this right by given by jury trial It was not existed before 1875. granting
the common it. law. no statute is There providing for We have above the statutes ruled ap- admeasurement court of dower circuit do not ply personalty. interest in uniform the widow’s The practice try unbroken in been con- this State has probate growing troversies out of final settlements rights concerning personalty, court, and widow’s jury. [Hastings Myers’ the court without v. Admr., supra; 24 Hayden McFarland v. Baze’s Mo. Admr., 156; Bryant Hayden’s Mo. Admr., 23 v. 398; v. 49 McCune, Cummings Cummings, Dowry Mo. v. 51 Mo. 546; 263; v. In 155; Mo. re 62 Mo. Bauer, 68 450; Davis, Booker v. Armstrong, Myers Myers, 49; 93 v. Mo. 98 262; Mo. Holliday, 106 Mosher, Hitchcock v. Mo. Clover v. 578; 144 109 Mo. Clark v. 108; Bettelheim, Mo. ;258 In re App. 45 In Estate of Mo. Meeker, re 186; Estate Dan (The App. ours.) 586.]” 66 italics forth, Mo. are See In re Estate Schooler v. 73 App. Stark, also Mo. Haydel, App. Pearson v. 87 Mo. therefore, rule that We, this case was triable and equity case tried an circuit court is triable de in this court. novo newly urged
II. As to the discovered evidence grounds to-wit, for new trial, á one reputation ill-repute chastity for bad, of July and after both before 1913, the date Newly making claimed as time of the contract Discovered Evidence. between and Karshner. ground Plaintiff contends that this not well is there was taken, because trial evidence at that such reputation, plaintiff’s alleg- therefore, and that, APE1L TEEM,
Perkins v. simply cnmnlative. newly evidence was discovered ed character. of that much evidence shows record subsequently discovered Merely evidence cumulative Mo. [State Stewart, 127 trial. ground newa no plaintiff’s rule brief.] We cited many cases plaintiff. point ap unfavorable to inference no hold that III. We put Horn, failure-to from the drawn pellant can Plaintiff stand. attorney, on< witness Karshner’s testimony he *20 fully possessed of the give, been witness because would Failure to Call Witness. probate court. He could trial in at the the plaintiff, had she desired called have been testimony. upon proof being burden of Indeed, duty 252), l. it was her 259 Mo. c. (Williams Williams, v. true as The same a witness. Horn as is called to have calling them burden witness. The any absent other to plaintiff. upon the IV; plain facts, statement of It is long plaintiff relations sustained illicit and the alleged July common-law when it' is 10, 191.3, before marriage entered be contract of into circumstances, the tween them. Under such Prior Illicit Relations. re that their meretricious well law is settled proof presumed continue, and the burden lation is upon satisfy of the court the conscience is relationship of husband and real wife was new, that a agreement good by mutual faith entered thereafter 514.] [Cargile l. them. v. 63 Mo. Wood, c. into between frequently has had occasion to This define, Y. court it seem that it late date would should be this and definitely settled, what constitute elements a A contract this State. short of Contract again approve, which we is found definition, Elements Cooper, l. Mo. c. where State v. marriage, we said: “To constitute valid either under there or must law, first, statute common be, one MISSOURI, COURT OF Perkins v. second, capable contracting;
man and woman one they assume contract which must enter into a joint lives, relation of husband ivife for neither, both, nor one, must both understand (Ital- destroy relation.” can rescind the contract or ours). are ics question is, there- court decide
YI. The has to presump- overcome the has whether fore, proved,* against the,satisfaction of the her, and tion relations were court, after their illicit entered into a she and Karshner commenced, marriage Insufficient Evidence. having elements above contract, good [Cargile supra.] faith. mentioned, Wood, This is to be determined a consideration of all the facts and circumstances before the direct court. plaintiff’s testimony daughter, who years casually was then but thirteen over- old. She part heard of a conversation between Karshner and says adjoining who mother, paid were in an room. She particular nobody’s no it, that it was attention and never mentioned it business, one, thereafter contemplated brought until this suit was or three years plain- four when thereafter, she mentioned it to *21 attorney. tiff’s the witness So this mar- to that, riage unheeding contract was an unheeded, unin- paid particular vited no child, who attention to the words thought used, it little of afterwards that never so contemplated. any one, mentioned it to until this suit apace, grown now is an She, too, witness, interested vitally concerned the outcome of this suit. Her testi- mony, if it stood would be a frail alone, too structure, support proof, the burden of which law, weak upon plaintiff. casts circumstances, under the But plaintiff and Karshner intended to enter into any marriage by they words-that contract used at that great weight by if is shown used, were of time, testimony and circumstances in the record. facts place, record shows that In the first neither of them TERM, APRIL marriage respect re- any special regard had or no disregarded, little or lation. as Both them had previous consequence, obligations their their marital spouses. his They huntsman cast “as them aside, pack.” that both of find We from evidence also and thus others, with had illicit' relations them thereafter interpreted ifas no their own relations .existed general hold- between them. Nor was there thereafter living reputation ing general to- out them, and garage gether as At husband and wife. Karshner’s places, have been would where, real relations their been most intimately most have and would known, truthfully they as husband not known were declared, weight great wife, not claim be. The did Street, evidence to that At Central effect. they were it is made, where their contract was claimed reputed all' not hold themselves at did not be, out shown so far as evidence. husband wife, place, find denied that while at that that both But we they they lived at the were husband and wife. While people reputation among at Hotel, Cordova they But were husband and wife. that hotel was respectable place they not have was a where could represented they not themselves. all, at so living November Karshner 18, 1913, Even while there, Ed- room the at Hotel dismissed the midnight (and protested) ward, neither them after charge had a woman clerk, contrary room, 'demanded rules, her. Karshner dismiss place they was the
The next resided Kenil- repute, as whether or Elat, where their worth Among was divided. husband and trades- were exception, they generally but one known .with men, they appeared together wife. When as husband places, parties, public such automobile shows or or stopped or at hotels where the clubs hotels, *22 City, represent together did outside Kansas 264 COURT MISSOURI, OF
Perkins v. Silverman. public themselves as husband were all and wife. These testimony, places, weight given and little is l. c. Mo. as said 259 Williams, in v. Williams because^ 252: lodgment being un “Their there able to find doubtedly depended upon impression given out plaintiff’s getting them that married.” So, being depended among line credit the tradesmen represented as wife. Plaintiff’s statement Karshner’s Lloyd badly to Mrs. that she felt because 1915, again, former Perkins, B. F. was married husband, always thought any go him that she could back time she wanted also to; Karshner’s statement year same to the Sutherland, witness no relation of but Mrs. his, Perkins, name was change show that there never had been bona-fide original up their illicit relations to that time. So, being plain own mother never heard married going tiff. Without into further which are re details, up day ferred to in the statement of the case, 1st May, alleged marriage, Of and after the contract of repute holding themselves out as' husband and general, frag was not uniform or divided, mentary spots. repute and in A holding “mottled” prove out is not sufficient to state. matrimonial repute stringent requirements “Such does not meet the [Bishop of the law.” v. Brittain Inv. Co., 229 Mo. l. c. 730.] repute, “If there a conflict is it will marriage.” Topper establish the In v. J., [Gantt, Perry, Cargile 548.] l. c. Mo. In v. Wood, 63 Mo. l. c. this court said: “When the connection is illicit origin, presumption in its likely’ is that it con is alleged tinue if subsequently it so, that it was changed, it must be shown at what it time became lawful. [Clayton Wardell, 230.] v. Const. ‘When the connec notoriously tion at first illicit,’ said Lord Eldon Cunningham Cunningham, (2 482), Dow. P. C. ‘and change in the character oper connection must be employed purpose and the means ated, for that are such *23 APRIL TERM, Perkins Silverman. v. relations, the
as to leave donbt as half the world in other, thinking the half way and the other one-half one there be said that conld it circle, at what in what time, presumption repute the as was such habit and raised parties mutually ’be husband consented that the hdd as cohabitation that mere and wife? not admit He could husband and as was a cohabitation man woman ” wife.’ as to therefore, that evidence said, It cannot be May parties prior 1916, 1, these relations of the standing marital established existence alone, time. relation that circum- that all the hold, But we facts
VII. parties, until done was said and stances, must considered. death, Karshner’s May appears written the first evidence 1916, On parties. day, relationship between the On gave plaintiff payable check $200, Karshner Perkins, Olive which she
Miss endorsed Perkins,” check, “Miss and either that Olive Written Document. money deposited by her or from it, was or National Bank of Karshner the Southwest Commerce in the name Olive Perkins. She drew checks signed, “Miss until Perkins,” account Olive it was ex deposit being July last cheek hausted, handwriting. slip opening in Karshner’s the account was signed stating day, had, same she document On the she simply housekeeper, effect, aud been Karshner’s they right property; no were never claimed married, together never had lived husband and receipt and that consideration $200, acknowledged, she released Karshner from all signed claims and demands. She this document, signed-an time affidavit written on same it, signature stating foregoing that her instrument act and that deed, free is not “she now and claimed to be wife of said Pearl D. Karshner.” MISSOURI, OF COURT engaged at the room May 8, 1916,
About Bray there, trunk clothes Hotel, and took Flat. But there Kenilworth remained at the plaintiff’s other visited each evidénce night slept every together daughter testified, hospital from the flat on June until was taken to *24 testimony he, that is, however, There other slept part Bray The Hotel. at the time, least suggestion parties could not that these counsel learned May document and affidavit divorce themselves purpose implies papers for that 1 made that said st, parties thought they thus divorce that and could that the living, together, they as to contract, themselves. If had a they believing it, could that themselves thus dissolve marriage they contract at all. If such contract was not they believed they thus dissolved contract, had together illicitly thereafter, intended to cohabit be- plaintiff’s evidence shows that cause own did co- together yet thereafter, not habit sub- same, if stantially, did before. fact obvious is, shoy?s parties simply May 1st that these transaction of together and intended to continue to had live to- disposed gether, they felt so wheneve'r wedlock. —out of hospital arrival at his June 8th, VIII. On put plaintiff gave the information on the slip, was 13th his residence West Street entrance Flat), (Kenilworth he married that was that his wife shortly his nearest relative. But there- was , in Will. Denial a f plain- he told the ter nurses tiff and that he was his did not care to see although frequently during she visited him her, days stay hospital the first ten of his at the an guest. He also unwelcome introduced the to his came from to his bedside, mother who Ohio Mrs. Per- protest, made no nodded kins, assent His mother had never beard of thereto. her before, again. he married nor that Vol. APRIL TERM, began was near, feel that the end When Karshner Oglebay Oglebay and showed he called for his friend spoke provisions rough will and draft of his Oglebay if it. asked him he was married he said days duly will was not. His a few there- he executed making after after, June devise to his 26, 1916, attorney and his then states in mother, he son, ‘‘ single T it man will: want known that I am a un- my my married; son Kenneth M. Karshner is that I other or their child; children descend- have no ants.” most solemn
Thus, under the did circumstances, Karshner declare that marriage entered he into plaintiff. with the that, contract- So evi- plaintiff, dence that both the shows she under oath, waiting with death for him the door while impressive writing most revealed wrote, possible, clearest terms, manner their re- lationship each that of husband wife, and was.not *25 been. judgment must the rule,
We below should be with directions to the circuit court render reversed appellant judgment defendant, for the here, plaintiff the is widow of the effect, decedent, applications or a allowances, share and her' for widow, as such should denied. estate Ragland, (7(7., accordingly ordered. It Broivn is concur. foregoing opinion PER CURIAM: The of Small, opinion adopted court. All as the of the of the
C., is except judges Woodson, J., absent. concur, OF,MISSOURI, SUPREME COURT
ON MOTION FOR RE-HEARING-. re-hearing PER been CURIAM: A. motion for has amongst urging, things, filed, this court has other jurisdiction appeal, no amount in- because appellate volved not exceed $7,500, and, does therefore, jurisdiction City Ap- in the Kansas vested Court
peals. opinion original As shows, the our judgment upon plaintiff’s trial of claim Appellate Jurisdiction, property for the absolute widow’s under agreement statute by parties, also, of the to deter- mine her status as widow in the other claim she filed under personal the statute for property one-half upon of the Consequently, deceased, final' distribution. special required the trial plead- below, which form of no ing, having originated probate all court, purposes, plaintiff as between the and the administrator, personal who held property title of the estate, plaintiff’s to determine status or not the widow, plain- widow, of Karshner under both claims filed judgment tiff. The lower court rendered pursuance agreement. judgment of such Such was not plaintiff prop- recover a certain sum as her absolute erty widow, under the claim filed such absolute property, but that death “was of the de- ceased, and entitled receive such share or portion provided his estate as is made right of Missouri.” statutes It was the widow’s in under both claims filed Karshner estate under Missouri, which was statutes submitted adjudged by court, the lower and from to judgment appeal this cburt was taken. It is the *26 right, of such value therefore, our determines parties jurisdiction. record shows, both The ad- property personal that the of below, mitted the Karshner probate exceeding in value. The $20,000 records estate personal property introduced, showed to be worth nothing There any in value. is showing $30,000 over APRIL 1920. TERM, Steele v. Reid. in month except for judgment
indebtedness, per $80 favor I. Karshner’s of Josie for of support minor Kenneth. son, Mrs. Josie Karshner died since I. this case was court. brought Therefore, this amount in one-half controversy involved is absolute, value besides widow’s personal estate, It property. is this amount plain, exceeds $7,50*0, and that this has jurisdiction appeal. court grounds have also considered the other
We carefully in re-hearing in the motion and the presented for brief find thereof, nothing but therein support calling for opinion. of our original modification motion for re-hearing Respondent’s accordingly except Woodson, J., All absent. overruled. concur, STEELE THOMAS L. W. REID et JOSEPH ux.,
Appellants. One, July 19, Division Foreign Homestead: For CONVEYANCE: Another’s 1. FRAUDULENT exempt exchange homestead, Kansas exe- of a from Benefit. property, payment cution, part deeded to for Missouri liome- property wife, from render the Missouri immune does not steader’s liability debts, only if he real and she was the owner for his immunity him; for the Missouri title for holder subsequent owing by him, acquired property, to a debt whether, truth, debt, depends liability benefit, legal title, for her own the holder of the it held depends his, question, turn, good on the and not them. between transaction faith of the fact -: Antecedent Debt. The that the home- -: -: subject execution for the home- state was not stead another State, will the laws not save Mis- under debts steader’s foreign homestead, exchanged, for which homestead souri debt; pay antecedent and where in the ex- execution from change property properties the Missouri the two deeded to foreign been, homestead the homesteader’s