In re Imboden's Estate

• Citation: 111 Mo. App. 220,86 S.W. 263
• Parties: In re IMBODEN'S ESTATE. IMBODEN v. IMBODEN'S ESTATE et al.
• Decision Date: 21 February 1905
• Court: Court of Appeal of Missouri (US)

86 S.W. 263

111 Mo. App. 220

In re IMBODEN'S ESTATE IMBODEN v. IMBODEN'S ESTATE et al.

St. Louis Court of Appeals. Missouri.

February 21, 1905.

MARRIAGE — COMMON-LAW MARRIAGE — EVIDENCE—ACTS OF PARTIES—REPUTE AND CO-HABITATION — INSTRUCTIONS — WITNESSES— COMPETENCY — WAIVER OF INCOMPETENCY— APPEAL—QUESTIONS REVIEWABLE.

1. A deposition not read or offered in evidence cannot be considered on appeal, although the substance thereof is set forth in the abstract.

2. Under Rev. St. 1899, § 4652, declaring parties incompetent to testify to transactions with deceased persons, a woman seeking to establish a claim as widow of a deceased person is not a competent witness to prove a common-law marriage between herself and deceased.

3. A stipulation permitting the taking and use of depositions subject to objections to competency, relevancy, and materiality of any of the evidence contained therein, constitutes a waiver of the incompetency of the witnesses whose depositions are taken.

4. The incompetency of a witness to testify to a contract between herself and a decedent is waived, and cannot be raised on a trial de novo in the circuit court, where the witness was permitted to testify without objection in the probate court.

5. It is error for the court, in excluding testimony on the ground of the witness' incompetency, to refuse to hear a statement as to what the party offering the witness expects to prove by him; but such statement should be heard, so that the appellate court may determine whether the exclusion of the evidence was prejudicial error.

6. On the issue of a common-law marriage, the evidence showed that the parties occasionally cohabited, but did not live together uninterruptedly as man and wife, or in such a way as to establish a reputation as being married. The evidence to show marriage was of an express contract of marriage per verba de præsenti, followed by occasional cohabitation, the furnishing of provisions and money, and the taking of occasional trips together. Held, that evidence of oral and written declarations made by the alleged husband, though not in the presence of the wife, that he was single and unmarried, was competent to rebut the evidence of marriage; but further testimony that the husband conducted himself towards other women and girls as a single man, and passed among his old friends and associates as an unmarried man, was incompetent.

7. The intention of the parties to an alleged contract of marriage is to be gathered from the circumstances attending the making of such contract, and not by the mental reservations or secret intentions of either of the parties, and such matters are ineffectual to avoid the marriage when not participated in by the other party.

8. The fact of a common-law marriage may be proved by testimony of witnesses to the agreement of the parties at the time of the marriage, or by admissions of the parties, or by such other facts and circumstances with respect to the actions of the parties and their conduct towards each other as tend to show such fact.

9. On the issue of the fact of a common-law marriage, a charge that such marriage may be proved by testimony of witnesses to the agreement of the man and woman at the time "if such testimony satisfies the jury of the fact of marriage," or by the admissions and conduct of the parties, "provided the jury are thereby satisfied of the fact of marriage," is subject to the objection of indicating a disbelief by the court of the testimony offered to prove the fact of marriage.

10. On the issue of a common-law marriage, the court charged to find against the marriage unless it was proven that on or about a certain date it was agreed that the parties should become man and wife. A subsequent and distinct charge stated that the fact that the parties took frequent trips together, registered at hotels as man and wife, and other similar facts, did not constitute marriage, and that the jury should find against the marriage unless they believed in the establishment of the agreement before referred to. Held, that while the instructions were individually correct, yet they were collectively objectionable, as segregating the two portions of the evidence showing marriage; and the court, to obviate the objection, should have added to the second instruction a clause telling the jury that the facts therein recited should be considered as corroborative evidence of the marriage.

11. On the issue of a common-law marriage, where there was no evidence of such cohabitation as raises a presumption of marriage, but merely of occasional instances of cohabitation, instructions on cohabitation and repute of marriage were improper.

12. Comments on the evidence and insinuations and intimations of the court as to the weight of the evidence or credibility of the witnesses should be avoided in instructions.

Appeal from St. Louis Circuit Court; Daniel D. Fisher, Judge.

In the matter of the estate of Luther E. Imboden, deceased, the Union Trust Company, trustee. From a judgment of the circuit court on appeal from the probate court disallowing the claim of Lillie Pierce Imboden as widow of said deceased, claimant appeals. Reversed.

On the 15th day of June, 1903, Luther E. Imboden died in the city of St. Louis testate. By his will he left all his property in trust to Eleleka Imboden, his daughter and only child by a former marriage. The appellant, as soon as the will was probated, claiming to be the wife and widow of Imboden, commenced proceedings in the probate court to establish her status and right as the wife and lawful widow of Imboden by petition for an allowance under the statutes for the sum of $500 in lieu of provisions not on hand at the time of the death of Imboden. The executor of the will, the St. Louis Union Trust Company, resisted the allowance on the ground that the appellant was not the wife and lawful widow of the deceased. Her claim was disallowed by the probate court, and she appealed to the circuit court, where, on a trial de novo to a jury, the verdict was against her. After an unavailing motion for new trial, she perfected her appeal to this court.

Her evidence shows that Imboden's former wife died in December, 1896, leaving an only child, a daughter, then about 12 years of age, and that Imboden promised his wife on her deathbed that he would not bring a stepmother into his family to rule over their daughter; that he would not marry again until after his daughter should marry. Appellant's maiden name was Pierce, and she and her family, consisting of herself and her father and mother, were neighbors of the Imbodens. In 1898 Miss Pierce gave Eleleka some instruction in elocution, and through the daughter Imboden was introduced to Miss Pierce in the month of April, 1898. From that time on Imboden, sometimes accompanied by his daughter, but oftener alone, called on Miss Pierce at her home. These calls continued through the months of April, May, June, and July. About June he began to speak to the mother of Miss Pierce about being in love with her daughter, and of his wish to marry her, and of the promise he was under to his wife, and of his desire for this reason to marry her daughter with the least possible publicity on account of the promise he had made to his former wife. Toward the latter part of July he stated to Mrs. Pierce that he was going away, and that he would "like to leave a little wife behind, and would like to provide for her." At this time Miss Pierce was in delicate health. Prior to this he had on several occasions spoken to Mrs. Pierce of secret marriage, and asked her what she thought of he and Lillie forming a secret marriage, and on the afternoon of July 27, 1898, Mrs. Pierce testified that Imboden called her into the parlor of her dwelling, and said to her: "Well, Lillie and I have come to the conclusion we will enter into a marriage contract. We have mutually agreed we will enter into a marriage contract. Have you any objection?" That she answered, "I don't know; it is not what I would like." Then he replied: "It is out of the question. I could not make the marriage public at this time. But Lillie and I have come to the conclusion we will enter into a marriage contract. From this time forth we will be husband and wife. Have we your consent?" That she said: "Well, I could not very well say anything else. Both of you are of legal age. You are not school children. Lillie knows her own mind, and I think you ought to know yours." He said: "It has got to be kept secret until such time as I can reveal it." She further testified that they were standing in the parlor at the time, Imboden with her (Miss Pierce's) hand in his, and she said to him: "Will you make it public?" He replied: "Well, I can't. Have I your consent?" And she said: "I will give you my consent upon these conditions: as a man of honor that you will rectify this in public;" and he said, "Well, I will when I can." While they were standing there, at this same time, with Lillie's hand in his, Imboden said to Lillie, "I take you as my wife," and she said, "I take you as my husband." Afterwards he gave Lillie a ring, and said to witness, "You see this ring; that makes her my wife." A few days afterwards, and after spending the night with Lillie and taking breakfast with the family, Sargent Pierce, father of Lillie, testified that Imboden said to him that he "was about going away, and wanted to inform him that he had married his daughter, Lillie, and that she was his wife, and that they had entered into a contract, and would keep it secret until after his daughter was married"; and that Imboden on several occasions afterwards—once as late as June preceding his death—talked about making his marriage public, and as soon as his daughter was married to Dr. Parrish, to whom it seems she was then engaged, he would make his marriage to Lillie public. Plaintiff's evidence further shows that Imboden stated to several persons that he was married to Lillie...