95 S.W. 203 (Mo. 1906), Topper v. Perry

Citation:95 S.W. 203, 197 Mo. 531
Opinion Judge:GANTT, J.
Party Name:ANNA D. TOPPER et al., Appellants, v. PERRY et al
Attorney:William B. Skinner and Henry Brumback for appellants. John T. Burgess and French & Mayhew for respondents.
Judge Panel:GANTT, J. Burgess, P. J., and Fox, J., concur. Burgess, P. J., and Fox, J., concur.
Case Date:June 19, 1906
Court:Supreme Court of Missouri

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95 S.W. 203 (Mo. 1906)

197 Mo. 531

ANNA D. TOPPER et al., Appellants,


PERRY et al

Supreme Court of Missouri, Division Two

June 19, 1906

Appeal from Lawrence Circuit Court. -- Hon. Henry C. Pepper, Judge.


William B. Skinner and Henry Brumback for appellants.

(1) The court erred in admitting in behalf of defendants declarations of Ambrose G. Topper to the effect that he was not married to plaintiff, alleged to have been made in her absence to witnesses. Such declarations were not against the interest of declarant, but were self-serving and were such in their nature as decedent could not have introduced in his own behalf in his lifetime, and did not become competent after his death. Rice v. Waddell, 168 Mo. 121; Gentry v. Field, 143 Mo. 411; Tucker v. Tucker, 32 Mo. 468; Perry's Admr. v. Roberts, 17 Mo. 36; Armstrong v. Johnston, 93 Mo.App. 500; Johnson v. Burke, 103 Mo.App. 231; Hutchinson v. Hutchinson, 63 N. E. (Ill.) 1027; Criddle v. Criddle, 21 Mo. 522; Darrett v. Darrett, 38 Mo. 495; Teller v. Patten, 20 How. 125; Wood v. Carpenter, 166 Mo. 485; Railroad v. View, 156 Mo. 618. "A reputed husband's declarations in denial of his marriage cannot be admitted to disprove it." Hill v. Hill's Admr., 32 Pa. (8 Casey) 511; In re Moore's Estate, 9 Pa. Co. Court Rep. 338; Greenawalt v. McEnnelley, 85 Pa. St. 352. "The declarations of husband and wife are subject to the same rules of exclusion which govern their testimony as witnesses." 1 Greenleaf, 341; Gaines v. Reef, 12 How. 534; Hoffman v. Hoffman's Exr., 126 Mo. 496. These declarations were inadmissible, too, as against the minor plaintiff, Ambrose Topper, Jr. Wood v. Carpenter, 166 Mo. 485. (2) The court erred in rendering judgment in favor of defendants. The judgment is not supported by the evidence, but is contrary thereto. Dyer v. Brannock, 66 Mo. 391; Cargile v. Wood, 63 Mo. 51; Adair v. Mette, 156 Mo. 496; Green v. Green, 126 Mo. 17; 1 Bishop, Marriage and Divorce, sec. 229; Orthwein v. Thomas, 21 N. E. (Ill.) 431; Ashford v. Ins. Co., 80 Mo.App. 643; Adger v. Akerman, 115 F. 124.

John T. Burgess and French & Mayhew for respondents.

Here is a case where plaintiffs sought to show that the deceased Topper was introducing plaintiff as his wife and holding her out to the world as such; this could only be refuted by showing the contrary, and instead of admitting the fact that she was his wife he was constantly saying she was not, and therein lies the distinction between this case and authorities cited by the appellants. Statements of the deceased were admissible to refute the reputation of his marriage. Cargile v. Wood, 63 Mo. 501. It is competent to show in defense of a common law marriage that the deceased made declarations, either verbal or written, that he was single and unmarried. Imboden v. Trust Co., 111 Mo.App. 220; Berkeley Peerage Case, 4 Camp. 415; Cope's Admr. v. Pearce, 7 Gill. 247; Craufurd v. Blackburn, 77 Am. Dec. 323, 17 Md. 49. When a man and woman are living together, in apparent matrimony, so they are accepted by the community as husband and wife, they are presumed, in the absence of counter presumptions of proof, not to be violating the due order of society, and breaking the law, but to be in fact married. 1 Bishop, Mar. Div. and Sep., sec. 932; Adair v. Mette, 156 Mo. 512. In this case it was quite to the contrary. Something like twenty of the near neighbors were called as witnesses, and all swore that they understood that they were not married, but on the contrary were living in adultery, so much so that some of them called on Mr. Topper and talked to him about it. Although the law does not admit hearsay evidence in proof of a fact which is susceptible of proof by witnesses who can speak from their own knowledge, yet questions of pedigree embrace not only descent and relationship but the fact of birth and marriage as well. 22 Am. and Eng. Ency. Law (2 Ed.), 640, 645, 647; Williams v. Williams, 46 Wis. 480; Spencer v. Pollock, 17 L. R. A. 850. Neither cohabitation nor reputation of marriage is marriage. Yardley's Estate, 75 Pa. St. 211; Hunt's Appeal, 86 Pa. 296; Richard v. Brein, 73 Pa. 140. Mere acknowledgment of the relation of husband and wife made idly or to ward off prosecution or to stifle inquiry or to evade criticism is of little or no weight. West v. State, 1 Wis. 186; Schouler on Domestic Relations (5 Ed.), sec. 26; Wolverton v. State, 16 Ohio 173. In establishing a common law marriage reputation as to cohabitation may be shown but this must be a general reputation of the parties being husband and wife, and a conflict in such repute will not establish a marriage. Ashford v. Ins. Co., 80 Mo.App. 638; Cargile v. Wood, 63 Mo. 501; 2 Greenleaf on Evidence (16 Ed.), pp. 526, 527, 528, 529; Stats v. Cooper, 103 Mo. 266; Dysart v. Perrage, 6 L. R. A. 715; Imboden v. Trust Co., 111 Mo.App. 220. What the parties by their actions deny the law will not affirm. Becken's Appeal, 2 Brewster 202. The relation of cohabitation and reputation of marriage must be undisputed at all times and in all places openly admitted by both parties. Terry's Estate, 58 Minn. 268; Powers v. Chamberry, 35 La. Ann. 630; Arnold v. Cheseborough, 58 F. 833; Ashford v. Ins. Co., 80 Mo.App. 638; Yardley's Estate, 75 Pa. St. 207; McKenna v. McKenna, 180 Ill. 577.

GANTT, J. Burgess, P. J., and Fox, J., concur.


[197 Mo. 535] GANTT, J.

This is an action brought to determine the title to certain real estate in Lawrence, Barry and Laclede counties, Missouri, under section 650, Revised Statutes 1899.

The plaintiffs claim title to said real estate: the said Anna, a life estate by way of homestead and dower as the widow of Ambrose G. Topper, deceased, by virtue of a common law marriage; and the minor, an estate by homestead and in fee simple as the only child and heir at law of said Ambrose G. Topper. The defendants are alleged to claim title to said real estate as heirs at law of said Ambrose G. Topper, deceased, but [197 Mo. 536] plaintiffs deny that they are such heirs and that they have title, estate or interest whatsoever in said lands.

The petition prays that the court shall ascertain and determine the title and interest of the said parties respectively in and to such real estate. In their answer the defendants admit that Ambrose G. Topper died intestate,

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leaving no bodily heirs, and assert that the defendants are the brothers and sisters of the deceased, the father and mother being dead, and that they are the next of kin and by virtue of the statutes of this State entitled to inherit said property. Further answering the defendants say that Ambrose G. Topper, deceased, was never married to Anna D. Topper, as she now subscribes her name, neither at common law or otherwise; that said pretended marriage on the part of plaintiff to said Ambrose G. Topper, deceased, is only a pretense, and only claimed for the purpose of obtaining the property of said Ambrose G. Topper, deceased, and further answering they state that they have no knowledge whatever as to the existence of Ambrose G. Topper, Jr., and deny that any child was born to Anna D. Topper of which Ambrose G. Topper, deceased, was the father. They deny each and every other allegation in the petition.

The cause was tried at the November term, 1902, of the circuit court of Lawrence county, and taken under advisement until March, 1903, when final judgment was rendered for the defendants. A motion for new trial was filed in due time and was overruled and exceptions duly saved and an appeal taken to this court.

The evidence in...

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