107 S.W. 400 (Mo.App. 1907), In re Estate of Imboden

Citation:107 S.W. 400, 128 Mo.App. 555
Opinion Judge:BLAND, P. J.
Party Name:In the Matter of Estate of LUTHER E. IMBODEN, Deceased, LILLIE PIERCE IMBODEN, Appellant, v. UNION TRUST COMPANY, Executor, Respondent
Attorney:Joseph Wheless, W. W. Henderson, James M. Sutherland and Barclay & Fauntleroy for appellant. J. D. Dalton and A. H. Roudebush for respondent; Jones, Jones & Hocker of counsel.
Judge Panel:BLAND, P. J. Nortoni, J., concurs in the result, Goode, J., not sitting.
Case Date:December 17, 1907
Court:Court of Appeals of Missouri
 
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Page 400

107 S.W. 400 (Mo.App. 1907)

128 Mo.App. 555

In the Matter of Estate of LUTHER E. IMBODEN, Deceased,

LILLIE PIERCE IMBODEN, Appellant,

v.

UNION TRUST COMPANY, Executor, Respondent

Court of Appeals of Missouri, St. Louis

December 17, 1907

Page 401

[Copyrighted Material Omitted]

Page 402

Appeal from St. Louis City Circuit Court.--Hon. Daniel G. Taylor, Judge.

AFFIRMED.

STATEMENT.--Luther Imboden being dead, and having by will appointed the defendant trust company executor of his estate, plaintiff, on July 3, 1903, filed in the probate court of the city of St. Louis, her petition for an allowance out of the estate in lieu of one year's provision not on hand at the death of Imboden, claiming to be his widow. Judgment was against the petitioner in the probate court and she appealed to the circuit court, where she again failed to establish her widowhood, and the cause was appealed to this court, where the judgment of the circuit court was reversed and the cause remanded for new trial ( Imboden v. Trust Company, 111 Mo.App. 220). The cause was again tried in the circuit court and the jury found plaintiff was not the widow of Imboden, and she again appealed to this court.

It was admitted at the threshold of the trial, that if plaintiff is the widow of Imboden, she is entitled, under the statutes of this State, to an allowance of four hundred dollars in cash against the estate. Plaintiff, to establish her widowhood, relied upon evidence of a common law marriage entered into between herself and Imboden in the year 1898. Her father testified, in substance, as follows: "About the fourth or fifth of August, Mr. Imboden called me downstairs in the evening; I was upstairs and he said, 'Sergeant, I am about to leave the city, and I want to tell you that your daughter and I are married. She is my wife, and we want this thing kept secret. I promised by wife on her dying bed not to bring a stepmother into the house to my daughter until she was married;' that was in the evening, maybe half past six or seven, in the parlor at 1525 N. Taylor. Mr. Imboden, my daughter and myself were present. I asked my daughter, 'Lillie, is that so.' She said, 'Yes, Daddy.' I told Mr. Imboden I would keep the secret so long as she asked me to. Mr. Imboden said he would make the marriage public when his daughter was married. I said, 'That being so I will agree.' After Mr. Imboden continued coming to my house time and time again up to the time of his death; when he was not in the city I would not see him; sometimes he would not be there for a week or two, but he would be there every evening, every day sometimes, very often in the morning. I would get up in the morning and find him there; I saw him sometimes come and stay all day, stay the entire day. He was there the evening before he died; he died on Monday. He was there Sunday evening at my house. Mr. Imboden frequently took his meals at the house with the family I have known him to be there as late as eleven o'clock or later, and he has taken breakfast there in the morning, both at the house on Taylor avenue and Evans avenue. Mr. Imboden furnished provisions for her use, meats, vegetables and groceries, beginning in 1898 right after he announced he was married to my daughter up to the time of his death; once he gave her a check which I cashed for her. He provided her clothing, a proportion he did. Mr. Imboden gave my daughter a ring, flat band ring some time in the latter part of September, 1898. He called my attention to a ring on my daughter's finger, and he said, 'Sergeant, that is my wedding ring,' and I looked at the ring (witness identifies ring worn by plaintiff shown him). In June, 1903, I had a conversation with Mr. Imboden at the Fair Grounds race track in regard to the public announcement of the fact of his marriage; after some other conversation, Mr. Imboden said, 'Sergeant, the time will soon come when I can make our marriage public.' I have heard Mr. Imboden call her 'my little wife, and 'little girl,' etc., such names as that. I have seen him come into the house, put his arm around her, kiss her, take her into the parlor. Sometimes on leaving the house it seemed he could not tear himself away; he hugged and kissed her like it was murder for him to go away. I have seen him at the house asleep on the lounge, at both houses. He made a trip with her to Hot Springs in the latter part of October, 1901, also a trip to French Lick, in September, 1902." Witness further stated that Imboden said he and Lily entered into the contract of marriage on July 27, 1898.

Plaintiff's evidence tends to show that from a short time after Imboden was introduced to plaintiff, he was a constant visitor at her father's house where she resided; that he took a great many meals there after July, 1898, until the day of his death, July 15, 1903, had a key to the front door of the residence, spent a great deal of his time there and remained there over many nights, and on divers occasions was seen in plaintiff's room; that he furnished the groceries for the family, was very attentive toward plaintiff and manifested great love for her, called her pet names, gave her a wedding ring and other jewelry, spoke of and to her as his wife in restaurants, in the city of St. Louis, and in other public places, took her to French Lick Springs and there registered himself and her as man and wife, under the assumed name of L. Pierce, took her to Hot Springs and there introduced her to an old acquaintance as his wife; that he frequently presided at the table in plaintiff's home and, as some of the witnesses put it, "acted as the man of the house." But there is no evidence showing, or tending to show, they gained the reputation of man and wife, in the neighborhood where plaintiff lived.

Imboden was a widower and had an only child, who was about thirteen years of age at the time he became acquainted with plaintiff. He had and maintained a residence at No. 4596 Garfield avenue, in the city of St. Louis (quite a distance from plaintiff's residence), where he made his home from the date of his acquaintance with plaintiff until the day of his death. His daughter testified: "My father died June 15, 1903, at 4596 Garfield avenue, St. Louis, aged 53 years. He was very regular in his habits, about coming home at night; he used to come in about ten o'clock at night; sometimes he would be later, when he went to theaters, when he would never come home until twelve o'clock; this was very seldom as I was alone, and when I had company he always liked to be there and see that I was there all right. In regard to his habits about his meals, he used to take his breakfast there, he never came for lunch, but was there occasionally; he never left the house until ten o'clock on the morning; six o'clock dinners he missed a few, very few; he never spent a night away from his home while I was in the city. I know the petitioner in this case; I have known her a number of years. I think it was about 1898, that I first met her; I think it was in the spring. I was thirteen years old at that time. In the spring of 1898, my father and I, walking, met the plaintiff, Miss Pierce, and her mother on the street. I introduced papa to her. I sometimes called on Miss Pierce, not frequently, in 1898 and part of 1899; I think it was about the first of January that I stopped. My father was really not in any business, dealing in real estate; he had no down town office at all, his office was at his home; he dealt in real estate entirely for himself."

A number of Imboden's intimate friends testified to conversations they had with him at different periods after July, 1898, in respect to his status as a married man. Their evidence is that when the subject was mentioned, Imboden would speak of his daughter, saying he had been both father and mother to her; that he had no one else to provide for and had no intention of ever marrying again; that the memory of his dead wife seemed to be very dear and sacred to him and he would speak of her in the most reverent and sacred terms, and said he was "too old to think of marrying again."

A chambermaid at the Hurst Hotel Junior testified that Imboden and plaintiff, for four or five...

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