Ellis v. Ellis
| Decision Date | 13 June 1882 |
| Citation | 13 N.W. 65,58 Iowa 720 |
| Parties | ELLIS v. ELLIS |
| Court | Iowa Supreme Court |
Appeal from Linn District Court.
THE plaintiff claims she was married to Myron Ellis, deceased, in 1862; that defendant is administratrix of his estate and falsely claims to be his widow and refuses to recog-the plaintiff as such. This proceeding was commenced in probate and the relief asked is that the court decree and declare the plaintiff to be the widow of the said Myron. The defendant denied the allegations of the plaintiff's petition, and alleged she was lawfully married to said Myron Ellis in 1878 and that she is the widow of said Ellis. Trial to the court finding and judgment for the defendant, and plaintiff appeals.
J. B Young, for appellant.
Hubbard Clark & Dawley, for appellee.
The plaintiff and Myron Ellis deceased were duly married in Perth, Canada, in 1862. They cohabited together as husband and wife for about three years when they separated and she went to Smith's Falls, Canada, to her parents, and he came west. There is no evidence tending to show any cause for the separation other than a desire to change their place of residence. After leaving Canada, Myron Ellis resided for a time in Illinois and afterward in Iowa where he died. It may be he resided for a short time at St. Joseph, Missouri.
About the year 1871 the said Myron and Jennie Meader were married in Linn county, Iowa and they cohabited together as husband and wife until her death in about two years after marriage. In 1878 the said Myron and the defendant were married in Linn county, Iowa and cohabited together as man and wife until his death in 1880. The plaintiff, after the separation, resided for a time in Canada, and then removed to Illinois, and has resided there and in Iowa since that time, except one or more visits to her relatives in Canada. The length of her stay on these occasions does not appear. From time to time she received letters from said Myron, the last being, we think, in September, 1868, and in which he enclosed her fifty dollars. In these letters he treated the marital relation as existing between them, and in no respect intimated he was dissatisfied with her or her conduct. In short, there is no evidence tending to show there ever was any disagreement between them. From the time he left her in Canada the plaintiff never saw the said Myron but once and that was at Council Bluffs, Iowa. The interview was brief, and he then advised her to go to her sister's at Clinton, Iowa. We are impressed there was not much evidence of affection exhibited on that occasion, nor was there any exhibition of ill feeling. Some of our conclusions are based on the evidence of the plaintiff, which we have examined with care, and see no reason to discredit her story. As to much of it she is corroborated. The material facts have been stated, and, as we understand, there is no material difference between the facts as found by us and the Circuit Court.
The only question to be determined is whether the plaintiff is, and should be declared to be, the widow of Myron Ellis deceased. That she is such must, we think, be true, unless under the circumstances a presumption should be indulged that Myron Ellis had, at some time prior to his marriage to defendant, procured a divorce from the plaintiff. On this ground the Circuit Court proceeded and held such a presumption existed, and therefore found for the defendant. We are informed by counsel that the court in justification of the...
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