202 Mass. 500 (1909), Turner v. Williams

Citation:202 Mass. 500, 89 N.E. 110
Opinion Judge:RUGG, J.
Attorney:[89 N.E. 111] Johnson & North, M. M. Johnson, and G. N. Merritt, for plaintiff. J. J. Harvey and J. J. Pickman, for defendant.
Case Date:June 22, 1909
Court:Supreme Judicial Court of Massachusetts

Page 500

202 Mass. 500 (1909)

89 N.E. 110




Supreme Judicial Court of Massachusetts, Middlesex.

June 22, 1909


[89 N.E. 111] Johnson & North,

Page 502

M. M. Johnson, and G. N. Merritt, for plaintiff.

J. J. Harvey and J. J. Pickman, for defendant.



This is an action of contract to recover money alleged to have been had and received to the use of the plaintiff's testator because obtained through the fraud of the defendant's intestate. The fraud claimed was that the defendant's intestate, under the name of Emma E. Ingalls, induced the plaintiff's testator, Joseph Turner, to marry her and settle property upon her by falsely representing herself to be a single woman. There was evidence tending to show that the defendant's intestate under the name of Emma E. Ingalls was from 1858 to 1870 the wife of Nelson N. Ingalls, living with him at Lowell in this commonwealth; that in or before 1870 he had deserted her; that his place of residence was thereafter for some time unknown to her, and that at one time he had lived in New

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Hampshire, but never afterwards in Lowell; that in 1870 she filed a libel for divorce against Nelson, which was dismissed in 1873; that in 1874 she was married to Joseph Turner, having represented to him that she was a divorced woman, and lived with him in Lowell until his death on September 19, 1895. One Marsh testified that on September 5 or 6, 1888, he 'knew from information from the defendant's intestate that her first husband' was at Bridgeport, Conn. 'She said something about his being down there' and that he thought he told the plaintiff 'something about his stepmother's telling me about Ingalls being in Bridgeport, and she asked me to inquire him out when I went there.' There is no evidence that he was ever heard from after that date. In the superior court a verdict was directed for the defendant.

The point at issue as the case was tried was whether the defendant's intestate, at the time of her marriage with the plaintiff's testator, was capable of entering into a valid marriage. The decision hinged upon the question whether at that time her former husband was living and undivorced. This was a fact to be determined upon all the evidence. Plainly there was sufficient evidence to support a finding that he was then alive. He was living in 1870, three years before, and there was the testimony of the witness Marsh to the effect that he received information from the defendant's intestate in 1888 that her former husband was then living in Connecticut. This evidence made it impossible for the court to rule as matter of law that her first husband was not living in 1874 at the time of the second marriage of the defendant's intestate.

It is said in the exceptions that the plaintiff's testator, before the marriage now questioned, 'stated to his children, and others, that said Emma was a divorced woman and that she had told him she was a divorced woman.' This appears to have been admitted without objection, and, being then in, was entitled to its natural probative force. Neither party has argued before us that this evidence was admitted under Rev. Laws, c. 175, § 66, as having been made in good faith upon the personal knowledge of the declarant, and the ruling in the superior court does not seem to have been based upon this consideration. But attributing its full evidential value to this testimony, still the direction of a verdict for the defendant was not warranted. The

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question to be decided was whether the prior marriage of the defendant's intestate was dissolved at the time of her marriage with the plaintiff's testator. Proof that it was valid and subsisting was the burden assumed by the plaintiff, and this burden rested on him...

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