250 S.W. 408 (Mo. 1923), Phillips v. Wilson

Citation:250 S.W. 408, 298 Mo. 186
Opinion Judge:SMALL, C. --
Party Name:LATTIE PHILLIPS et al., Appellants, v. DOVIE WILSON et al
Attorney:Gregory & Holtzendorff, Cope & Tedrick and E. G. Hammons for appellants. Henson & Woody for respondents.
Judge Panel:SMALL, C. Lindsay, C., concurs; Brown, C., not sitting.
Case Date:April 06, 1923
Court:Supreme Court of Missouri

Page 408

250 S.W. 408 (Mo. 1923)

298 Mo. 186

LATTIE PHILLIPS et al., Appellants,



Supreme Court of Missouri, First Division

April 6, 1923

Appeal from Butler Circuit Court. -- Hon. Almon Ing, Judge.


Gregory & Holtzendorff, Cope & Tedrick and E. G. Hammons for appellants.

(1) Respondents were permitted to introduce in evidence, over objection of appellants, an "order" refusing letters of administration and a "note and deed of trust" signed by Warren Wilson and Dovie Wilson. This was objectionable. These instruments did not tend to prove or disprove any of the issues in the case. (2) The court erred in rendering judgment for the respondents, and also in overruling appellants' motion in arrest of judgment. The questions of law that present themselves are (a) the validity of the so-called common-law marriage, (b) the status of the children of Warren Wilson and Dovie Wilson with reference to legitimacy, and (c) the right of Mrs. Lattie Phillips, the true widow of Warren Wilson, to participate in the distribution of decedent's estate. (a) The evidence conclusively shows there was never any marriage contract entered into between Warren Wilson and Samanthia Johnson, common law or otherwise. Warren Wilson never at any time obtained a divorce from Lattie Wilson nor she from him, and he was, therefore, incompetent to enter into a marriage contract. This fact was well known to both parties at the time they began living together, and their cohabitation cannot be construed to be a marriage for any purpose whatsoever. Cargile v. Wood, 63 Mo. 501; Payne v. Dotson, 81 Mo. 145; Hanz v. Sealy, 6 Binn. 405; Keen v. Keen, 184 Mo. 359; Topper v. Perry, 197 Mo. 531; Perkins v. Silverman, 223 S.W. 895. (b) The children born as a result of this illicit cohabitation are illegitimate. Their parents were never married, but merely lived together in adultery. Where one or both of the parties to the marriage contract acted in good faith the children are legitimate, notwithstanding the fact that there was no valid marriage. This is not true here. Both parties were aware of the fact that Warren Wilson had a wife living, from whom he had never been divorced and their subsequent cohabitation, in the face of this knowledge, was nothing more or less than adultery, and the children born as a result of this adulterous relation are bastards. Green v. Green, 126 Mo. 17; Nelson v. Jones, 245 Mo. 579; Stripe v. Meffert, 229 S.W. 762; Sec. 341, R. S. 1909. (c) Warren Wilson's true widow, Lattie Phillips, is entitled to her dower interest in his estate. No divorce was granted to either of them and their separation was not voluntary on her part. The fact that two years after their separation she married and lived with John Phillips is not such an act as to constitute "a going away and continuing with an adulterer," within the meaning of Sec. 365, R. S. 1909. Payne v. Dotson, 81 Mo. 145; Shaffer v. Richardson, 27 Ind. 122; Hoyt v. Davis, 21 Mo.App. 235; Coggswell v. Tibbetts, 3 N.H. 41; Sec. 365, R. S. 1909.

Henson & Woody for respondents.

(1) Where a marriage is contracted between a man and a woman, either ceremonial or common law, the presumption obtains that their conduct was in conformity to law, until the contrary is shown, and the burden is on the person asserting the contrary. Maier v. Brock, 222 Mo. 74; Jackson v. Phalen, 237 Mo. 142; Nelson v. Jones, 245 Mo. 579; Murray v. Scully, 259 Mo. 57; Johnson v. Railroad, 203 Mo. 381. (2) To constitute a common-law marriage there must be (a) a man and a woman competent to contract, (b) they must enter into a contract by which they assume the relation of husband and wife for their joint lives, (c) there must be a consummation of the contract by cohabitation, and (d) they must be reputed generally to be husband and wife. Perkins v. Silverman, 284 Mo. 238; Bishop v. Inv. Co., 229 Mo. 699; Topper v. Perry, 197 Mo. 531; Cargile v. Woods, 63 Mo. 501; Elzas v. Elzas, 171 Ill. 632; Plattner v. Plattner, 116 Mo.App. 405; Davis v. Stouffer, 132 Mo.App. 555. (3) The note and deed of trust executed by Warren Wilson and Dovie Wilson, as also the order of the Probate Court of Butler County denying letters of administration on the estate of Warren Wilson, were competent as proving the marriage between these parties. Bishop v. Inv. Co., 229 Mo. 699; Topper v. Perry, 197 Mo. 531; Plattner v. Plattner, 116 Mo.App. 405. (4) This being an action at law, the finding of the trial court, sitting as a jury, is binding upon this court, if supported by substantial evidence. Keen v. Keen, 184 Mo. 358; Topper v. Perry, 197 Mo. 531; Matthis v. Melton, 238 S.W. 806; Hunter v. Moore, 202 S.W. 544.

SMALL, C. Lindsay, C., concurs; Brown, C., not sitting.


Page 409

[298 Mo. 190] SMALL, C. --

Ejectment for 171 1/2 acres of land in Butler County.

Answer, a general denial, except admission that defendants are in possession. Further answering, defendants state that they and the plaintiff Luella Williams are the owners in fee simple, subject to the dower interest of defendant Dovie Wilson, of said property. That plaintiffs Lattie Phillips and J. F. Holtzendorff claim adversely, but have no rights in said property; wherefore, defendants pray the court to determine and quiet title between the parties, according to the statute in such cases made and provided.

The case was tried before the court without a jury. No instructions were asked or given. The court found a verdict and rendered judgment, that defendants and plaintiff Luella Williams were the owners of the property, as claimed by defendants, and the other plaintiffs had no interest therein.

Plaintiffs duly appealed to this court.

The evidence showed that both parties claimed through Warren Wilson, as a common source of title. He acquired ownership by deed dated March 27, 1902, and recorded March 11, 1904.

Plaintiffs' evidence tended to show that Warren Wilson moved onto said farm in October, 1902. That he was accompanied by the defendant Dovie Wilson, who lived with him as his wife. That they lived together as husband and wife, and always claimed, privately and publicly, to be husband and wife, and were so reputed generally in said community, from the time they moved there in 1902, until the time of his death in 1915. That when they moved to said farm they had no children, but afterwards five...

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