259 Mo. 242 | Mo. | 1914
This is a suit in equity by which plaintiff seeks to establish her dower interest in certain land, at one time owned by her alleged common-law husband, Walter J. Williams, now deceased,'and to set aside, on the ground of fraud, a certain conveyance of said land made by her said husband to one of the defendants herein. The answer contained a general denial and also denied that plaintiff was, at any time, the wife of said Walter J. Williams and further alleged that in the year 1904 said Walter Williams was the owner of the real estate described in the peti
This case was tried as a suit in equity and while we are not bound by the findings or conclusions reached by the learned trial court, where we find the evidence does not warrant such finding, yet it is fully recognized by all the authorities that, since the trial court has an opportunity to see the witnesses in person, while we see but the printed record, consid
Plaintiff’s evidence to the effect that plaintiff’s little girl called Williams father, and that plaintiff introduced him as her husband and he referred to her as his wife, in conversations occurring at the house where they lived’, does not carry much weight when it is remembered that the plaintiff’s little girl between ten and fifteen years old was living with them. It is not likely that plaintiff or even Williams would desire to have this little girl of tender years know that they were living together unlawfully, and such statements are just as consistent with the theory that they didn’t want the little girl or their neighbors to know of their illicit cohabitation as with the theory that they were declarations of an existing fact. The same could be said as to the testimony that they referred to each other as husband and wife while talking to the hotel keeper and his wife and a few other people with whom they came in contact while stopping for a few months at the hotel in Louisiana. It appears from the evidence that the hotel was a respectable ace and therefore their being able to find lodgment there undoubtedly de
The only public declaration made by Williams, the authenticity of which is not questioned, is contained in the deed which plaintiff seeks to set aside. In acknowledging this deed, about one week prior to his death, plaintiff declared himself to be single and unmarried. It further appears from the evidence that Williams’ work kept him away from home the greater portion of the time; that upon his returns to the city, he spent a portion of a day or sometimes two days with plaintiff and then would go to the home of his father and mother for a short time. His mother testified that during this, time he was making his home with them. He was at the home of his father and mother prior to being moved to the hospital. Plaintiff under the name of Mrs. Bertha Bauman applied to deceased’s father to secure the job of helping nurse him. Plaintiff nursed him during the daytime for about two weeks next prior to his death. She attended the funeral and later called at defendant’s home to receive pay for her nursing. She received a cheek for fifty dollars from defendants, payable to the order of Miss Bertha Bauman, and executed a receipt for the same signing her name as Bauman. Later she presented the check to
It is true that some of plaintiff’s testimony, when standing alone, tends to prove the existence of the marriage but when all the evidence is considered it strongly appears that the greater weight of the evidence is on the side of the contention that they were not husband and wife.
The subject of common-law marriage was fully discussed by this court in the case of Topper v. Perry, 197 Mo. 531, and in the case, of Bishop v. Brittain Investment Company, 229 Mo. 699. It is therefore unnecessary that the subject he further discussed herein.
The judgment is affirmed.
PER CURIAM. — The foregoing opinion of Williams, C., is adopted as the opinion of the court.