63 Wash. 526 | Wash. | 1911
This appeal involves two proceedings, consolidated in the court below and here for the purpose of hearing. In one, appellant sought in- an equitable suit to' establish a marriage between herself and Harry Weatherall, the testator of respondents, and to have her community interest in the estate fixed and determined; or, failing to establish the marriage, she prayed for a decree establishing a resulting trust in certain of the real estate. In the other, she sought in the probate proceedings to establish the marriage, and contested the will upon the ground of incapacity upon the part of the testator. These two proceedings are now before us for the second time. Upon the first appeal, we reviewed the ruling of the lower court in striking certain evidence by which it was sought to establish the marriage, and in granting respondents’ motion to dismiss, and we held (Weatherall v. Weatherall, 56 Wash. 344, 105 Pac. 822) these rulings of the lower court to be error, and remanded the cases, directing the lower court to receive the stricken and offered testimony, and to further proceed with the trials. This has been done, and we are now asked to review the final judgment of the lower court, which is adverse to appellant upon all her contentions.
The first appeal presented questions of law only, and having there fully determined the legal phases of the cases, nothing more need be said, further than that we still adhere to the views therein expressed, and proceed to the review of this appeal, which presents questions of fact only, with the law before us as therein determined. This review has been a laborious task, on account of the size of the record. Forty-four witnesses were examined and twenty-four exhibits introduced in evidence. Many errors are assigned upon the admission of evidence, some of which we regard as well taken, and have read the record accordingly. Others we overrule, but on account of the number of them, and the fact that they affect only the testimony submitted and involve no assertion or rejection of any particular rule of evidence, and thus are of
Illustrating this view, some witnesses testify that appellant and deceased kept their earnings in common, in charge of appellant; that appellant’s wages when picking and culling oysters were paid to deceased. While others, and more in number, testify that appellant was always paid by deceased by the sack for picking oysters, and specific instances of such payments are given by a witness who had charge of the accounts. Other testimony is to the effect that appellant was
The marriage is attacked by showing there was no license issued, nor any return made as required by law; and while the absence of license, or the failure to make return would not invalidate a marriage otherwise valid (In re Hollopeter, 52 Wash. 41, 100 Pac. 159, 132 Am. St. 952, 21 L. R,. A. (N. S.) 847), these are proper facts to consider, in view of the conflicting testimony here shown, as to whether or not there was a ceremony of marriage. The marriage is said to have been performed by Kettle Labatum, an Indian minister. Many witnesses testify he was not a minister, nor regarded or known as such by either the Indians or white people; and while again, as we said in the first appeal, if a ceremony was performed by one who professed to have authority, and the contracting parties believed in that authority, and consummated the marriage under that belief, the marriage is valid, still the lack of authority, when established by the great preponderance of the evidence, is a strong factor in determining it was not exercised.
Much other like conflicting evidence might be referred to. In so far as the business relations of the deceased appear in the record — and he seems to have been a man of affairs, acquiring some little property — it is all consistent with the belief that he was never married. He had many transactions
There is no evidence upon which any resulting trust could be established in favor of appellant, as to the oyster lands. Nor is there any evidence of the testator’s incapacity to make a valid will; the only evidence relied upon in this latter contention being that the testator was a hard drinker and, during the latter years of his life, frequently under the influence of intoxicants. It would take more than this for any court to hold a testator did not have sufficient capacity to make a valid will.
For these reasons, coupled with the uniform rule of this court that the decision of the lower court upon contested
The judgment is affirmed.
Dunbar, C.' J., Crow, Ellis, and Chadwick, JJ., concur.