229 P. 812 | Okla. | 1924
This is an appeal from an order allowing final account of the administrator of the estate of Mary Miles Crowther Schoonover, deceased, including a family allowance to defendant in error, and determining heirship. Such administrator, in his final report prayed the county court to determine and find the heirs, alleging that he was informed and believed that Grover C. Schoonover, husband, and Marie Versa Crowther, the minor daughter of deceased by a former marriage, were the only heirs, and each entitled to one-half of the estate, praying also for order of distribution accordingly.
The guardian and next friend of said minor daughter, plaintiff in error herein, filed objections to said report on the ground that said Grover was not the lawful husband of said Mary at the time of her death, because of their marriage within six months from the date of her divorce; objected to the family allowance of $500 to said Grover, and prayed that the entire estate be decreed and distributed to said minor daughter. The county court overruled such objections and held that said Grover was the lawful husband of said Mary at the time of her death, and decreed distribution of the estate, one-half to said daughter and one-half to him, approving said allowance. In trial de novo in the district court the county court was affirmed, from which judgment appeal to this court was duly lodged. The question is whether Grover C. Schoonover was the lawful husband of said Mary at the time of her death and as such one of her legal heirs.
Said Mary, a full-blood Osage, on August 7, 1916, obtained a divorce from her last former husband, Eugene Crowther, in Osage county. She was the mother by Crowther, of the little daughter, Marie Versa Crowther. On January 9 1917, about 28 days before the expiration of the statutory six months prohibition to marry, she and the defendant, Grover C. Schoonover, went to Muskogee, Muskogee county, procured a marriage license and celebrated ceremonious nuptials. They soon returned to Pawhuska in Osage county. It is a fact and it is admitted that the parties hereafter held themselves out to the world as husband and wife. They bought and occupied a homestead, taking the legal title in her name as Schoonover. She did business at the bank and stores in that name. In September, 1917, domestic perturbations caused them to separate for a few days. Mr. Schoonover convinced Mary that he had not been unduly friendly with other women. They agreed to cease quarreling. She said she would live with him and be a good wife and he told her "alright." Thereupon they resumed the marriage relation living together in their *30 own home until May 20, 1918, when Mr. Schoonover was induced into the military service of this nation. While in France, fighting for the flag, several letters passed between him and said Mary, couched in the most endearing terms and disclosing mutual connubial bliss. Grover took out $10,000 of war risk insurance payable to said Mary as his wife, and duly allotted and caused to be paid to her part of his pay, also contributing $5 per month to the said little daughter of said Mary. When re returned to his native land, said Mary had departed this life.
1. 2. The pretended marriage of said Grover and Mary at Muskogee within six months from the date of her decree of divorce was absolutely void under the express language of our statute and the decisions of this court. If said Grover was the lawful husband of said Mary at the time of her death, and thereby one of her heirs, he became such because of a common-law marriage, recognized in this state, consummated between them after such impediment was removed.
Under Clark et al. v. Barney et al.,
We do not feel called upon to pass upon the numerous questions raised in the lengthy and able briefs of counsel. If the burden of proof was upon defendant in error, under Brokeshoulder v. Brokeshoulder et al.,
3. The record shows that an allowance was made by the court and paid by the administrator for the maintenance of said minor daughter in the settlement of this estate. The family allowance of $500 to defendant in error, Schoonover, is assigned as error. Section 1227, Comp. Stat. 1921, authorizes family allowances for the support of widow and children. The allowance for said child was authorized by said statute. The husband is not specifically named in said statute and does not come within the classes designated. The term "widow" does not include widower. 24 C. J. 244; In re Bowen's Estate (Wash.) 163 P. 379. There is no statutory authority for the family allowance of said $500 to said Schoonover, and said final account should not have been approved as to this item. The defendant in error should be required to account for the same. *31
The judgment of the trial court should be modified as to said allowance of $500, and as so modified, the same should be and is affirmed.
By the Court: It is so ordered.