Phillips v. Wilson

• Decision Date: 06 April 1923
• Parties: LATTIE PHILLIPS et al., Appellants, v. DOVIE WILSON et al
• Court: Missouri Supreme Court

250 S.W. 408

298 Mo. 186

LATTIE PHILLIPS et al., Appellants, v. DOVIE WILSON et al

Supreme Court of Missouri, First Division

April 6, 1923

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

Affirmed.

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.

OPINION

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 children were born to them, the oldest of whom was eighteen years old at the time of the trial, and the youngest eight years, the oldest being married to Henry Wisecarver. The children were all born and raised on this farm, and all of them, except the married one, lived with their mother on the farm at the time of the trial. No one in the neighborhood, until this suit was instituted, ever questioned that they were man and wife, and always referred to and treated them as such.

The plaintiff Lattie Phillips testified for plaintiffs, and it was admitted by defendants, that she was married to Warren Wilson in 1895 in Prairie County, Arkansas. That the plaintiff Luella Williams was her daughter, and the daughter of Warren Wilson, as the fruit of that marriage. Said Lattie Phillips then testified: She and her husband, Warren Wilson, lived in Prairie County, Arkansas, and separated in 1902, when Wilson went to Missouri. The separation took place in June, 1902. Before the separation, Wilson sold all the livestock and personal property he had on the farm; he also took all the household goods, except a sewing-machine, cookstove and some old chairs, which the witness received. He also gave her ten dollars in money, and she went back to reside at her mother's home in said county. Wilson realized about nine hundred dollars from the property he sold. Wilson left their home in Arkansas with Samanthia Johnson (defendant, Dovie Wilson). "She is my niece, and I have known her ever since she was a little baby. She has visited with us, but never lived with us. She was at our home when my husband and I separated, and was still there when I came back after my things. There was familiarity between her and my husband before our separation. They were all the time together, off to themselves, always with one another, they were out with each-other. I was away about a week. I was at Little Rock, during the first part of June, staying with my mother; some one stayed with him. She was at my home when I went to my mother's, and they stayed there alone until they left in the fall. She was also there when I got back from my mother's, although she did not say she was there during my absence. I was never divorced from Warren Wilson, nor was I ever served with process incidental to his getting a divorce. I never knew or heard of him getting a divorce. We had four children, Three of them died in infancy."

On cross-examination, the witness testified: "I was married to J. G. Phillips by a man named Sanders, who was a justice of the peace in Prairie County, Arkansas, in 1904, and have lived with him as his wife ever since. We have lived in Prairie County, Arkansas, in the same county where Warren Wilson and I lived, since 1904. Warren Wilson and I agreed to separate in May, 1902. I went to my mother's at Little Rock to wait on her. I came back and then left again in June. She [defendant, Dovie Wilson] came to our house in February on a visit, and when I went to wait on my mother she stayed there until I came back. The day he took me to the railroad station, he told me that he didn't intend to live with me any more, and I went to my mother's in Little Rock, as I had no other place to go. He lived there at the same place where we had both lived, after I had gone to live with my mother. That was in the spring of 1902. He left early in that fall, and I only saw him twice before he left. I went there to get what he was to let me have, which was...