In re Colton's Estate
| Decision Date | 07 February 1906 |
| Citation | 105 N.W. 1008,129 Iowa 542 |
| Parties | IN RE ESTATE LUTHER E. COLTON, Deceased |
| Court | Iowa Supreme Court |
Appeal from Dallas District Court.-- HON. EDMUND NICHOLS, Judge.
CONTROVERSY as to who is entitled to share in the estate of Luther E Colton, deceased, as his widow -- Eliza A. Colton or Frankie Colton. Decree was entered declaring the former to have been his lawful wife, and the administrator of the latter appeals.
Reversed.
Miller & Russell, for appellant.
E. W Dingwell, for appellee Colton.
White & Clarke and E. E. Byrum, for appellee Mattausch.
Luther E. Colton died intestate, October 30, 1903, leaving forty acres of land and personal property worth about $ 1,000. He was married to Eliza A. Shaw on the 4th day of September 1886, and lived with her up to the time of his death. She applied for an allowance for support March 4, 1904, the consideration of which was deferred, owing to a similar application by Frankie Colton April 12th following and a claim of ownership of all exempt property and an undivided one-third of the estate. The pleadings were such that the issue as to which of these women was the lawful wife of Colton at the time of his death was raised. Prior to the trial Eliza died, and the administrator of her estate, Etta Mattausch, filed petition claiming the allowance sought by her decedent. N. E. Colton, administrator of the estate of Luther E. Colton, denied knowledge or information sufficient to form a belief. That Frankie Boon was married to the deceased at Parsons, Labette county, Kan., December 1, 1875, is conclusively established by the evidence. Indeed, this is conceded. She was his second wife. They remained there about two weeks, when he left for Des Moines, and she followed him in about two months, and they lived there more than a year. A child was born, and shortly afterwards she returned to Parsons on a visit. According to her story this was at his instance, and after a brief stay she wrote him of her readiness to return, to which he responded by saying he did not intend her to come back, and if she did she would not find him, and either in this or another letter he offered her money if she would not come and trouble his folks. As she was without means she did not return to him, but has resided in Labette county of that state ever since. She has neither applied for a divorce nor married again. They corresponded for a couple of months. She was willing to live with him whenever he wished, up to the time of his marriage to Agnes Masters in 1878, with whom he appears to have lived seven years. Through correspondence with friends she learned of this marriage, also of that to Eliza, and, though claiming to be the wife of Colton, she made no protest against the relationship assumed with these women. This omission is somewhat explained by her lack of means and distance from the transactions. No notice of any suit was ever served on her, and the principal issue to be determined is whether the presumption which the law raises in favor of the last marriage has been overcome by the evidence tending to show that the bonds of matrimony between Frankie Colton and deceased were never dissolved.
1. An attorney testified that he had examined the court records of Labette county, Kan., diligently, and found no decree therein dissolving the marriage of deceased with Frankie Colton. Another attorney gave like testimony as to the court records of Polk and Dallas counties, in this state. The administrators moved to strike this evidence, because incompetent, and on the ground that this could be proven by the custodians of the records only. Our statute authorizes proof of judicial records by duly certified copies. Sections 4644, 4645, Code. These must be furnished upon tender of statutory fees. Section 4638, Code. There is no statute however, authorizing the absence of any particular decree from the records to be proven by the certificate of the officer having the records in his custody, and, in the absence of such a statute, a certificate to the effect is not admissible in evidence. Wigmore on Evidence, section 1678. Of course, the best proof would be the introduction of all the records in evidence. But this would be impracticable, and the testimony of some one competent to and who has made a diligent search is admissible. The duty to make such diligent search is not imposed by statute upon any officer. An examination of this kind may require much time, and the clerical force in the several county offices of this state is limited by law. The officer is at liberty to decline to do such work. Moreover, the records are open to public inspection, and any competent person may ascertain the facts quite as well as the custodian of the books. Ordinarily the clerk of the court is not an attorney, and is not as competent to ascertain whether a particular decree is contained in the records as one learned in the law. While such proof may be made by the custodian of the records, no good reason has been suggested for saying that his testimony is better evidence than that of anyone else knowing the facts, and, as the records are open to public inspection, no question of public policy is involved. The only decision cited to the contrary is Sykes v. Beck (N. D.) 12 N.D. 242, 96 N.W. 844. There the testimony of an attorney to what the records of the county commissioners did not contain was declared not to be the best evidence; "that is, it is not the kind of evidence required to prove the facts, which are required to be officially recorded, do or do not exist." This was because the witness was not the official custodian of the records. The decision appears to have been planted upon the following authorities: 2 Jones on Evidence, section 556; Bullock v. Wallingford, 55 N.H. 619; Stoner v. Ellis, 6 Ind. 152; Smith v. Richards, 29 Conn. 232; and Burton v. Driggs, 87 U.S. 125, 20 Wall. 125 (22 L.Ed. 299). These cases merely hold that proof of the absence of any matter from voluminous records cannot be established by the certificate of the custodian, but must be proven by the testimony of a witness, who is subject to cross-examination. In the text of Jones on Evidence it is said "the proper mode is not by statements in official certificates, but by the testimony of the officer." This is proper, but whether the same proof may be made by some one else equally competent does not seem to have been considered by the author, as in neither Bullock v. Wallingford, 55 N.H. 619, nor Stoner v. Ellis, 6 Ind. 152, cited in support of the text, was the point determined. In the former, the court held a certificate by the assistant commissioner of patents that upon diligent search of the records it did not appear that a certain patent had issued was not admissible. Each of the three judges delivered opinions, one of them only suggesting that the custodian should have been called as a witness. Precisely the same question was determined in Stoner v. Ellis. In Smith v. Richards, 29 Conn. 232, the testimony of the secretary of a society that upon examination of its records he did not find that a certain vote had been taken was held admissible. Burton v. Driggs, supra, merely states the established doctrine that when it is necessary to prove the result of voluminous facts or the examination of many books and papers, and the examination cannot conveniently be made in court, the results may be proven by a person who made the examination. Sykes v. Beck is without support in the authorities cited therein, and does not meet our approval. We think the negative sought to be established may be proven like any other fact; that is, by one possessing the necessary information. That an attorney or abstracter of experience is quite, if not more, capable of ascertaining whether a particular record exists, as those ordinarily having custody of the records in the office of the clerks of court, or of other county officers, is a matter of common knowledge, and, when...
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