Spencer v. Pollock

• Citation: 53 N.W. 490,83 Wis. 215
• Parties: SPENCER v. POLLOCK ET AL.
• Decision Date: 25 October 1892
• Court: United States State Supreme Court of Wisconsin

83 Wis. 215

53 N.W. 490

SPENCER

v.POLLOCK ET AL.

Supreme Court of Wisconsin.

Oct. 25, 1892.

Appeal from circuit court, Douglas county; R. D. MARSHALL, Judge.

Action by Herbert R. Spencer against Martha Pollock and others. From a judgment for defendants, plaintiff appeals. Affirmed.

The other facts fully appear in the following statement by WINSLOW, J.:

This was a proceeding commenced in the county court of Douglas county, under the provisions of chapter 286, Laws 1881, to determine the descent of certain lands in said county owned by Jeremiah C. Tullis in his lifetime, who died intestate at his residence in Cincinnati, Ohio, March 9, 1878. The application was made by the appellant, Spencer, who, by his petition, set up the facts required by sections 2 and 3 of said chapter 286. He alleged that said deceased left a widow, America Tullis, and one adult daughter, Georgia Benhouse, surviving him, as his heirs at law, and that he (Spencer) was the grantee of said widow and daughter, and the owner of all said lands. Upon the hearing Martha Pollock and Mary Ann Ludlow, the respondents, who are sisters of the deceased, appeared and denied that Jeremiah Tullis was married or left any issue, and claimed to be the sole heirs at law of deceased. Upon this issue trial was had in the county court, and upon appeal in the circuit court, both courts holding that Jeremiah Tullis was never married to America, and decreeing that the title to the lands in question was in the respondents, Martha Pollock and Mary Ann Ludlow. No question was raised as to the residence or death of Tullis, or his ownership of the lands in question, nor in fact as to any of the jurisdictional facts which must exist to entitle the court to entertain the application. America Tullis (so called) was a quadroon or octoroon, with whom Jeremiah C. Tullis, who was a white man, lived and cohabited from about the year 1861 up to the time of his death, in 1878, and Georgia Benhouse was the fruit of this cohabitation. The question litigated was whether this union was the union of husband and wife, or simply the maintenance of illicit relations. The circuit court found upon this question as follows: “That America Tullis became the mother of one or more illegitimate children when quite young, and thereafter was lawfully married to one William Redman, in the city of Cincinnati, aforesaid, in 1856 or 1857; that she lived with said Redman as his wife for a year or a year and a half; that said Redman then left her and went south, since which time he has not been heard from; that, about two years after said Redman left said America Tullis, relations of an illicit character commenced between her and Jeremiah C. Tullis; that such relations continued for some time, when the parties commenced living and cohabiting together as man and wife; that no marriage ceremony was performed between said America Tullis and Jeremiah C. Tullis before they commenced living and cohabiting together, pretending to be man and wife; that there is no direct evidence or competent evidence in the case that they entered into a matrimonial contract; that it does not clearly appear, from the evidence, at what date the parties commenced living together, pretending to be man and wife, as aforesaid, but it was not later than 1861; that William Redman was alive when his wife and Jeremiah C. Tullis commenced living together as aforesaid; that said America and J. C. Tullis, without any belief on their part that Redman was dead, but with the knowledge that he was the lawful husband of said America, commenced living together as aforesaid, and so continued to live and cohabit until March, 1879, at which time he died; that, as the fruit of such living and cohabiting together, a daughter, known in these proceedings as Georgiana Benhouse, was born about 1870; and that said America Tullis and Georgiana Benhouse, at the time of the filing of the petition herein, resided at Cummingsville, Ohio; that said America Tullis was a colored woman, and J. C. Tullis was a white man; that she w...