105 N.W. 1008 (Iowa 1906), In re Colton's Estate

Citation:105 N.W. 1008, 129 Iowa 542
Opinion Judge:LADD, J
Party Name:IN RE ESTATE LUTHER E. COLTON, Deceased
Attorney:Miller & Russell, for appellant. E. W. Dingwell, for appellee Colton. White & Clarke and E. E. Byrum, for appellee Mattausch.
Case Date:February 07, 1906
Court:Supreme Court of Iowa
 
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Page 1008

105 N.W. 1008 (Iowa 1906)

129 Iowa 542

IN RE ESTATE LUTHER E. COLTON, Deceased

Supreme Court of Iowa, Des Moines

February 7, 1906

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.

OPINION

[129 Iowa 543] LADD, J.--

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,

Page 1009

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 [129 Iowa 544] 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...

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