56 Neb. 729 | Neb. | 1898
Lead Opinion
Hans C. Sorensen died intestate February 3,1895, leaving both real and personal property situate in Valley county, of which he was an inhabitant. Lars Sorensen and others, children of a deceased brother and sister of Hans C. Sorensen, made application to the county court for letters of administration of the estate of said Hans C. Sorensen, alleging that Hans had died intestate, leaving no widow nor issue, and that they, his nephews and nieces, were his next of kin and only heirs at law. A Mrs. Ellen Sorensen, or Ferguson, appeared in that proceeding and alleged that she was the widow of Hans C. Sorensen, deceased, and claimed the right to nominate an administrator. The result of the proceeding in the county court was a finding and judgment that Mrs. Ellen Sorensen, who will hereinafter be called Mrs. Fer
1. It appears from the record that Hans 0. Sorensen lived for a number of years prior to his death in Ord, Nebraska; that he was a bachelor,—lived alone, doing his own housekeeping. Mrs. Ferguson was a widow, and lived in the same town and, if not on the same block, very close to where Hans C. Sorensen lived. The two parties had been quite well acquainted for a number of years. Mrs. Ferguson was a poor woman, and, it seems, did Sorensen’s laundry work, and occasionally cleaned house for him. On the trial in the district court she testified that about the middle of October, 1894, while she was at the house of Sorensen, he made a verbal proposition of marriage to her, which she then and there accepted; that she and Sorensen then and there agreed henceforth to be husband and wife to one another. Mrs. Ferguson also testified that after this verbal marriage contract between her and Sorensen, and in pursuance thereof, they had sexual intercourse, the result of which was a son born to her. She further testified that it was agreed between her and Sorensen at the time of their marriage that it should be kept secret for an indefinite time. The marriage was kept secret. The record contains no evidence of either Sorensen or Mrs. Ferguson having ever told or claimed to any one that they were married. At no time or place did either one of them introduce, speak of, or hold out the other as husband or wife. The parties did not cohabit together after their
'Thus far it appears that Mrs. Ferguson testified to a transaction and conversation had between her and the deceased; gave this testimony in a civil proceeding in
2. We have' not been referred to, nor have we been able to find, any case where the precise question under consideration here has been decided, under a statute like ours, in such a proceeding as this. That the testimony of Mrs. Ferguson was competent has been ably and in
Roberts v. Yarboro, 41 Tex. 449, was a suit for conversion against two copartners. Pending the suit one of the partners died, the action proceeding against the surviving partner only, and it was held that the plaintiff might testify to declarations of the deceased. The statute of Texas prohibited a party to the suit from testifying to a conversation or transaction with the deceased, where the adversary was the executor, administrator, or guardian of the deceased. The court gave the statute a literal and strict interpretation, and held the testimony of the plaintiff competent upon the ground that the deceased party was not a party to the suit nor represented in the suit by an administrator, executor, or guardian.
Markham v. Carothers, 47 Tex. 21, was an action of ejectment brought by Carothers’ administrator against Rountree and Bowden. The parties made defendants disclaimed all title in themselves, and Bowden, as guardian for Irene Rountree, intervened in the action and claimed title to half the property sued for in behalf of his ward; and the court held that Rountree might testify to conversations and transactions between himself and Carothers’ intestate. The decision was placed upon the ground that after Rountree’s disclaimer he was no longer a party to the suit, and the statute only rendered the testimony of witnesses incompetent who were parties to the suit.
Eisenlord v. Clum 27 N. E. Rep. [N. Y.] 1024, was an ejectment suit brought by an alleged forced heir of the deceased against persons who claimed to be the heirs at
Cole v. Cole, 38 N. E. Rep. [Ill.] 703, was a contest over the partition of real estate of which one George Cole had died seized. Cole was lawfully married to Emma Cole in England, lived with her for about a year, and then deserted her and came to Illinois, and there married Amelia Hahn, with whom he lived for about twelve years, until she obtained a divorce from him. Cole then went to Indiana, and there married Katherine Cole, and soon after died. Emma Cole, the English widow, claimed dower in his lands, and the Indiana widow also claimed to have been lawfully married to him and therefore entitled to dower in his lands. On the trial there was positive proof by other witnesses that Cole’s English wife was living when he married Amelia Hahn, and the court held that Amelia Hahn was competent to testify that Cole admitted to her during the time she lived with him that he had not been divorced from his English wife. The case does not militate against the conclusion reached by us in the case at bar. If Cole’s English widow was living when he married Amelia Hahn, then that marriage was absolutely void, and she had no interest, direct, legal, or otherwise, in the result of the suit on trial.
A statute of Missouri provided: “In actions where one of the original parties to the contract or cause of action in
In Re Drinkhouse’s Estate, 24 Atl. Rep. [Pa.] 1083, the holding was that on a claim of children to a share in the estate as grandchildren of the decedent their mother was a competent Avitness to prove the fact of her marriage to the decedent’s son, the father of the grandchildren. The case was an appeal from an order of the orphan’s.court distributing the estate of William Drinkhouse, deceased. It does not appear that the witness Avho testified to a marriage with William’s son, Joseph W., had any direct legal interest in the result of that proceeding.
A statute of New Jersey provided: “No party shall be sworn in any case when the opposite party * * * sues or is sued in a representative capacity.” (Revised Statutes, p. 378, ch. 1, sec. 3.) In Colfax v. Colfax, 32 N. J. Eq. 206, a son filed a bill for specific performance of a contract which he alleged he had made with his father in his lifetime for the con
In Palmateer v. Tilton, 40 N. J. Eq. 555, one William Harvey died, leaving a will in and by which he appointed one Abner Allen executor with power, it seems, to sell and dispose of the decedent’s real estate. The executor made a contract with Palmateer in and by which he agreed to convey to him certain of the decedent’s real estate,- and died before the. execution of the contract. Palmateer then brought suit for specific performance against Harvey’s administrator with the will annexed, and the court held that Palmateer might testify to the contract between himself and the deceased executor of Harvey. The court based its decision upon the proposition that the statute only forbade the witness to testify to statements made by á “testator or intestate;” that the statement made by Allen, executor, was not clearly within the rule.
In Hodge v. Coriell, 44 N. J. L. 456, Hodge brought replevin against Coriell. The latter pleaded non eepit, and property in himself as administrator of J. T., deceased, and the court held, construing the statute of 1880 just quoted, that it was competent for Hodge to testify that J. T., deceased, admitted that the property in ques
In Crimmins v. Crimmins, 10 Atl. Rep. [N. J.] 800, a widow brought suit against the heirs at law of her deceased husband to set aside a deed made by her husband in his lifetime and in the. execution of which deed the widow alleged her husband had induced her to join by the practice of fraud and the exercise of undue influence; and the-court held, construing this statute of New Jersey of 1880, quoted above, that the testimony of the widow as to the transactions and conversations between herself and husband was competent, basing its decision upon the ground that the heirs at law were not being sued as the representative of the deceased within the meaning of the statute.
In Smith v. Smith, 19 Atl. Rep. [N. J.] 255, it seems that Hezekiah B. Smith died testate, leaving a will in and by which he devised his property to certain trustees. Mrs. Smith, claiming to be his widow, brought an action against the devisees for dower. The defense was that' Smith and Smith had never been married, and the court held that Mrs. Smith was competent to testify to the facts constituting a common law marriage between herself and Smith, deceased, and based its decision upon the ground that the defendants to the action were sued as devisees under the will of Smith, deceased, and not as executors and legal representatives.
Ingersol v. McWillie, 30 S. W. Rep. [Tex.] 56, was a contest between certain parties as to which had the right to administer upon the estate of a deceased, and the court held that the Texas statute relating to transactions with the decedent did not prohibit a woman from testifying to the fact of a marriage between herself and the deceased in such contest, none of the parties to the contest claiming to be heirs of the deceased.
This concludes the review of all the cases cited by counsel for defendant in error in support of their contention that the testimony of Mrs. Ferguson to the fact of the marriage betAveen herself and Hans 0. Sorensen was competent, and our conclusion is that the authorities do not -sustain the contention for which they are cited. We must not be understood as deciding in this case that
Reversed and remanded.
Concurrence Opinion
I concur in the judgment just rendered on the ground that the findings of the district court are not sustained by the evidence. I express no opinion upon the questions discussed in the foregoing ojfinion.