86 S.W. 263 (Mo.App. 1905), Imboden v. St. Louis Union Trust Company

Citation:86 S.W. 263, 111 Mo.App. 220
Opinion Judge:BLAND, P. J.
Party Name:IMBODEN, Appellant, v. ST. LOUIS UNION TRUST COMPANY, Executor, Respondent
Attorney:Joseph Wheless, W. W. Henderson and Adiel Sherwood for appellant. John D. Dalton and A. H. Roudebush for respondent; James C. Jones of counsel.
Judge Panel:BLAND, P. J. Nortoni, J., concurs; Goode, J., not sitting.
Case Date:February 21, 1905
Court:Court of Appeals of Missouri
 
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Page 263

86 S.W. 263 (Mo.App. 1905)

111 Mo.App. 220

IMBODEN, Appellant,

v.

ST. LOUIS UNION TRUST COMPANY, Executor, Respondent

Court of Appeals of Missouri, St. Louis

February 21, 1905

Page 264

Appeal from St. Louis City Circuit Court.--Hon. Daniel D. Fisher, Judge.

REVERSED AND REMANDED.

STATEMENT.

On the fifteenth 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 five hundred dollars 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 twelve years of age and that Imboden promised his wife on her deathbed that he would not bring a step-mother 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 him and Lillie forming a secret marriage, and on the afternoon of July 27th, 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 that 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 a 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 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 Pierce and on divers occasions he was seen to kiss and address her as his little wife. They made a trip to French Lick Springs and there registered as man and wife, but under the name of Pierce; that when he was in the city he spent most of his nights at the Pierce residence, took his meals with the family and furnished most of the supplies for their table; that he furnished Lillie with money and clothing, and on numerous occasions he promised the mother of Lillie to make his marriage public as soon as his daughter married Dr. Parrish. There are other facts shown in evidence tending to corroborate the fact that a contract of marriage was entered into between Imboden and Lillie Pierce on July 27, 1898. There is much countervailing evidence found in the record, to the admission of the greater part of which the appellant objected and excepted.

Judgment reversed and cause remanded.

Joseph Wheless, W. W. Henderson and Adiel Sherwood for appellant.

(1) Petitioner was a competent witness in her own behalf. Petitioner was offered as a witness on the trial to prove her status and the fact of her marriage with Mr. Imboden; and was excluded by the court. Under the statute to show the marriage, petitioner is a competent witness to prove the fact of her marriage with deceased. Marriage is a status. Marriage itself, and a proceeding to establish or annul it, is a proceeding in rem. It is in this sense a matter dehors the statute, not covered by its intention. Ellison v. Martin, 53 Mo. 578; 1 Bishop, Marriage and Divorce, section 11, n-2; McClurg v. Terry, 21 N.J.Eq. 225. In action to establish the marriage the survivor is a competent witness though its purpose is to secure a share of the estate. Green v. Green, 126 Mo. 17, 28 S.W. 752, 1008; Ashford v. Ins. Co., 80 Mo.App. 638; Meier v. Thieman, 90 Mo. 442, 2 S.W. 435; Garvin's Admr. v. Williams, 50 Mo. 206; Spradling v. Conway, 51 Mo. 51; Berry v. Hartzell, 91 Mo. 135, 3 S.W. 582; Hoyt v. Davis, 30 Mo.App. 309; Brandon v. Dawson, 51 Mo.App. 237; Lynn v. Hockaday, 162 Mo. 111, 61 S.W. 885; Drinkhouse's Estate, 151 Pa. St. 294; Smith v. Smith, 52 N. J. L. 207; Greenawalt v. McEnelley, 85 Pa. St. 352; Ingersol v. McWillie, 9 Texas Civ. App. 543; Lorimer v. Lorimer (Mich.), 83 N.W. 609; Commonwealth v. Dill, 156 Mass. 226; Commonwealth v. Hayden, 163 Mass. 453 (47 Am. St. Rep. 468); Bailey v. State, 36 Neb. 808; Bissell v. Bissell, 55 Barb. (N. Y.) 325; Van Tuyl v. Van Tuyl, 57 Barb. 235; Christy v. Clark, 45 Barb. 529. (a) Because her incompetency, if it existed, was waived by the stipulation permitting petitioner to testify. Pending the trial of the proceeding in the probate court, depositions of witnesses on behalf of petitioner were taken, and were filed and used in the probate court, and partly in the circuit court. Adair v. Mette, 156 Mo. 507, 57 S.W. 551; In re Est. of Soulard, 141 Mo. 655, 43 S.W. 617. (b) Because of the waiver of incompetency, if it existed, by cross-examination. Upon petitioner testifying to certain facts in her deposition, counsel for defendant entered into a course of cross-examination entirely beyond the scope of the examination in chief, and developed every detail of her marriage and relations with deceased. Hume v. Hopkins, 140 Mo. 75, 41 S.W. 784; Hickman v. Green, 123 Mo. 165, 22 S.W. 455, 27 S.W. 440; Carney v. Carney, 95 Mo. 358, 8 S.W. 729; Ess v. Griffith, 139 Mo. 322, 40 S.W. 930; Borgess Inv. Co. v. Vette, 142 Mo. 560, 44 S.W. 754; Rice v. Waddill, 168 Mo. 119, 67 S.W. 605; Nichols v. Nichols, 147 Mo. 403, 48 S.W. 947. (c) Because her incompetency, if it existed, was waived by filing and using deposition in the probate court. Tierney v. Hannon, 81 Mo.App. 488. (2) The court erred in refusing counsel for petitioner the opportunity to state the substance of the evidence in the absence of the jury, which it was expected would be proved by petitioner. Abbott's Trial Brief, pp. 288-231; Best v. Hoeffner, 39 Mo.App. 682; Jackson v. Hardin, 83 Mo. 175; McCrew v. Railroad, 109 Mo. 582, 19 S.W. 53; Ruschenberg v. Railway, 161 Mo. 70, 61 S.W. 626; In re Bischoff & Stumpf, 10 Mo.App. 474; Reynolds v. Reynolds, 45 Mo.App. 622. (3) The court erred in admitting testimony to show that the reputation of Mr. Imboden was that of a single and unmarried man. The reputation of the parties, whether married or unmarried, could not be an issue in the case--petitioner did not base her claim to marriage on repute, but on a contract with admissions of deceased and the sole purpose of this evidence was to disprove the marriage. Badger v. Badger, 88 N.Y. 554-6; Gall v. Gall, 114 N.Y. 119; Northrop v. Knowles, 52 Conn. 522; Bartlett v. Musliner, 28 Hun (N. Y.) 235; Henderson v. Cargill, 31 Miss. 417; Nathan's Case, 2 Brewster (Pa.)...

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