Barnes v. Barnes

• Decision Date: 03 February 1894
• Citation: 90 Iowa 282,57 N.W. 851
• Parties: BARNES v. BARNES ET AL.
• Court: Iowa Supreme Court

90 Iowa 282

57 N.W. 851

BARNES

v.BARNES ET AL.

Supreme Court of Iowa.

Feb. 3, 1894.

Appeal from district court, Blackhawk county; D. J. Lenehan, Judge.

Action in equity for a partition of certain real estate of which Ezra Barnes died seised. The plaintiff claims to be the widow of said deceased, and, as such, entitled to a distributive share in said real estate. The defendant Mary E. Barnes claims to be the widow of said deceased, and to be entitled to all of said real estate, under the last will and testament of said Ezra Barnes, deceased. Decree was entered dismissing plaintiff's petition, and for costs, from which she appeals.Boies, Couch & Boies, for appellant.

O. C. Miller and Mullan & Pickett, for appellees.

GIVEN, J.

1. The contention is not as to which of these parties is the widow of Ezra Barnes, deceased, but whether the plaintiff is his widow. The defendant is entitled to take under the will, though she be not the widow of Ezra Barnes; but, if the plaintiff is such widow, then the defendant takes under the will, subject to plaintiff's right to a distributive share. Our single inquiry, then, is whether or not the plaintiff is the widow of Ezra Barnes. To be such widow, she must have been his lawful wife at the time of his death. The contention as to the plaintiff's rights rests upon the following facts, fully established by the evidence: On October 5, 1854, the plaintiff, then Emily Bruce, was married to John Weidman, at Monroe, Green county, Wis. At the time of this marriage, they were both residents of Stevenson county, Ill., to which they returned. From there they went to Ogle county, where they continued to live together as husband and wife for about two years after their marriage. For some cause that does not appear, they then separated, and never after lived together. After their separation, plaintiff came with her parents to Iowa, and soon thereafter Weidman went to Sauk county, Wis., where he continued to reside until April, 1861, when he enlisted in the army. Plaintiff filed her petition in the district court of Benton county, Iowa, asking a divorce from Weidman, on the ground of desertion, in which case the following entry was made: “Now, to wit, October 22, 1858, comes the plaintiff, and files proof of publication, and, upon the suggestion of the death of John Weidman, said plaintiff moves the court to dismiss said cause, which is accordingly done, at plaintiff's costs.” John Weidman was killed in battle, September 14, 1862. In September, 1858, the plaintiff and deceased, Ezra Barnes, were married, in Benton county, Iowa, and thereafter lived together and treated each other as husband and wife until 1869 or 1870, when a difference arose between them, and they separated, the plaintiff going to Missouri, and they ever after lived apart. In 1869 a child was born to plaintiff. In 1859 or 1860, John Weidman and Belle Coplin were married in Wisconsin, but it does not appear whether they afterwards lived together as husband and wife or not. It further appears that on January 2, 1870, the defendant Mary E. Barnes, then Mary E. Livingston, was married to the deceased, Ezra Barnes, at Blackhawk county, Iowa, and that they lived together as husband and wife, and treated and recognized each other as such, up to the death of Ezra Barnes, July 1, 1890. Ezra Barnes left a will, which has been duly probated, devising all his property, both real and personal, to the defendant Mary E. Barnes. It is shown in evidence in what counties the plaintiff and John Weidman resided after their marriage, and that no record of any divorce dissolving said marriage was found in the proper records of either of said counties.

2. It is entirely clear that, unless plaintiff's marriage to Weidman had been dissolved before her marriage to Barnes, the latter marriage was illegal, and, if so, that she was not the lawful wife of Barnes, and consequently not his widow, by virtue of that marriage. Plaintiff does not produce any evidence of a divorce having been granted dissolving her marriage with Weidman, nor is it claimed that Weidman was dead at the time of her marriage to Barnes. Plaintiff's first contention is that under the authority of Blanchard v. Lambert, 43 Iowa, 228, the law will presume a divorce dissolving the marital relation between plaintiff and Weidman prior to plaintiff's marriage with deceased, from the fact that both she and Weidman thereafter married. In that case the plaintiff and her former husband, Musgrave, separated in 1858, and the plaintiff married Blanchard nearly nine years thereafter. For several years prior, Musgrave was living with a woman who claimed and whom he claimed to be, and who was reputed to be, his wife. The plaintiff lived near by, and knew these facts. Upon these facts, the court says: “The law presumes that this cohabitation of Musgrave was legal, and not criminal, and that he had obtained a divorce from plaintiff.” The facts upon which that presumption was based are quite different from the facts in this case. In that, Musgrave had lived with and recognized the second woman as his wife, to the knowledge of the plaintiff, before her marriage to Blanchard; in this, the plaintiff's husband, Weidman, did not marry Belle Coplin until after plaintiff's marriage to Barnes, and it is not shown that he ever lived with Belle Coplin, or recognized her as his wife, or that this plaintiff ever knew of that marriage during the time she lived with Barnes. There was no evidence whatever in that case to negative the presumption that Musgrave had obtained a divorce, while...