Boyer ex rel. McGee v. Dively

• Decision Date: 31 January 1875
• Citation: 58 Mo. 510
• Parties: FRANCIS BOYER and JAMES CHARLEY, Jr., by their next friend M. W. MCGEE, Respondents, v. MICHAEL DIVELY, Adm'r de bonis non, with will annexed, of WILLIAM GILLIS, and BERNARD DONNELLY and F. M. BLACK, Ex'rs of the last will of MARY A. TROOST, Appellants.
• Court: Missouri Supreme Court

58 Mo. 510

FRANCIS BOYER and JAMES CHARLEY, Jr., by their next friend M. W. MCGEE, Respondents,

v.MICHAEL DIVELY, Adm'r de bonis non, with will annexed, of WILLIAM GILLIS, and BERNARD DONNELLY and F. M. BLACK, Ex'rs of the last will of MARY A. TROOST, Appellants.

Supreme Court of Missouri.

January Term, 1875.

Appeal from Johnson Circuit Court.

F. M. Black, with Brown & Case, for Appellants.

I. There is no cause of action stated in the petition. It is not stated, that the former executrix or the present administrator have, or ever had, anything for distribution, nor that there will be anything after the payment of debts. It does appear, that this suit was commenced within three months after the death of the testator, and before the debts could be ascertained, or any distribution had. The petition describes no property, real or personal, nor can any judgment for money or property be had. There is no subject matter stated upon which the Court can render any judgment or decree known to the law. (Garner vs. McCullough, 48 Mo., 318; Riddle vs. Boyce, 13 Mo., 532; Smith vs. Turner, 4 Ired. Eq., 437.)

II. Again: The 47th section of statute of wills (Wagn. Stat., 1370,) under which it is claimed this suit is brought, furnishes no authority for such a proceeding as this. That section expressly provides for cases where the devisees, legatees or heirs have received something which they are required to refund.

No adjudicated case has been found where intestacy has been declared, when no specific relief was asked and no defined judgment or decree could be given.

III. Nothing short of an agreement between two persons of opposite sexes to live together during their lives as man and wife, to the exclusion of all others, and without the power to dissolve the same at their own volition, constitutes a marriage as known to our laws and Christian communities. (Bish. Mar. and Div., 32; Self. Mar. and Div., 1; Schouler on Dom. Rel., 22); and defendant's third instruction should have been given.

IV. The general rule, that a marriage, valid where celebrated, is valid everywhere, is a matter of comity of nations and States; and when an alleged marriage does not contain the essential elements of a marriage as known to our laws, it ought not to be enforced. It is no marriage. (Roche vs. Washington, 19 Ind., 53; Hyde vs. Hyde, Law Rep., 1st Courts of Prob. and Div., 130; Story on Con. Law, 7 e, sec. 114.)

While the forms of the contract, the rights and ceremonies for a due celebration, are governed by the law of the place of the contract or celebration, yet the essentials of the contract depend upon the lex domicilii, the law of the country in which the parties are domiciled, and in which the matrimonial residence is contemplated. (Story on Con. Laws, (7th Ed.,) 124. b; Brock vs. Brock, 7 Jur., N. S., 422; Also, reported in 9 House of Lords Cases, p. 192.)

Such marriages, where the contract does not contain the essential element, as measured by our laws, and where the parties or either of them, or the territory in which they reside, are subject to State laws, are held no marriages at all. (Roche vs. Washington, 19 Ind., 53; State vs. Ta-cha-na-tah, 64 N. C., 614.)

Philips & Vest, Tichenor & Warner, with D. A. N. Grover, for Respondents.

I. The form of proceeding adopted by plaintiffs is the proper one. The descent of plaintiffs, and all the facts necessary to give them their right, were denied by Mary A. Troost, who, as executrix and sole legatee, was in possession of the estate of Wm. Gilliss, deceased, and proceeding to execute the will according to its terms, when this suit was commenced. This suit is instituted under the 9th section of 2 Wagn. Stat., (ch. 145,) in regard to wills, and which was the 30th section of the chapter on wills in the statutes of 1835. (Hill vs. Marin, 28 Mo., 78; Block vs. Block, 3 Mo., 407, Hockensmith vs. Slusher, 26 Mo., 237; Beck vs. Metz, 25 Mo., 71; Bradley vs. Bradley, 24 Mo., 311; Levin vs. Stephens, 7 Mo., 90; Guitar vs. Gordon, 17 Mo., 408.)

II. The court properly submitted the issues of fact to the jury. (Wagn. Stat., 1040-1, §§ 12, 13; Morris vs. Morris, 28 Mo., 117; Weil vs. Kume, 49 Mo., 158: Looker vs. Davis, 47 Mo., 140; Curtis vs. Sutter, 15 Cal., 263; Weber vs. Marshall, 19 Cal., 447; McCarty vs. Edwards, 24 How. Pr., 236.)

III. The evidence clearly shows a valid marriage between William Gilliss and Kahketoqua, the mother of Nancy, and grand-mother of plaintiffs. (Johnson vs. Johnson, 30 Mo., 88.)

IV. General reputation and cohabitation are evidence of marriage. (Wm. Johnson vs. Wm. Johnson, 1 Des., 595; Weaver vs. Cryer, 1 Dev. Law, 337; Fetts and wife vs. Foster, 1 Tayl., 72; Allen vs. Hall, 2 Nott & McCord, 438; Ford vs. Ford, 4 Ala., 144; Wall vs. Williamson, 8 Ala., 48; Wall vs. Williamson, 11 Ala., 838; Morgan vs. McGhee, 5 Humph., 13; Chesseldine's Lessee vs. Brewer, 1 Harris & McHenry, 152; Fornshill vs. Murray, 1 Bland Ch., 482; Taylor vs. Shewwell, 4 B. Mon., 576; Crozier vs. Gand and Wife, 1 Bibb., 357; Stover vs. Boswell's Heirs, 3 Dana, 232; 1 Penrose & Watts, 450; Johnson vs. Johnson's Adm'r, 30 Mo., 85; Buchanan vs. Harvey, 35 Mo., 276; Johnson vs. Johnson, 46 Mo., 597; 23 N. Y., 91.)

V. Marriages, among Indian tribes, must be regarded as taking place in a state of nature; and if according to the usage and customs of the particular tribe, the parties are authorized to dissolve it at pleasure, the right of dissolution will be considered a term of the contract. This applies to marriages between persons of pure Indian blood, or between white and Indian races. (Wall vs. Williamson, 11 Ala., 839; Johnson vs. Johnson's Adm'r, 30 Mo., 72; Morgan vs. McGhee, 5 Humph., 13.)

VI. In Wall vs. Williamson ( supra), which decision is quoted and approved by this court in Johnson vs. Johnson, it is held that though the act of 1832 extended the jurisdiction of the State of Alabama over the Indian territory; yet it does not take from a marriage among the Choctaws, made according to their customs, dissoluble quality at the pleasure of the parties; nor can the asking a reservation under a treaty, nor the acceptance of a patent from the United States, nor the continued residence and cohabitation in the State for more than five years, after the ratification of the treaty, and the departure of most of their tribe to the west, have that effect. Their usages and customs are abolished only by positive law.

VII. Abandonment of wife, according to the custom of a tribe, has the same effect as a decree of divorce. (Wall vs. Williamson, 8 Ala., 48.)

VIII. It is clear, both upon authority and upon general principles of public policy and natural equity, that when the legitimacy is called in question, especially after the death of the children, and after a great lapse of time, every reasonable presumption is indulged in favor of legitimacy. The jury are bound to make every intendment, in favor of the legitimacy of the children, and not necessarily excluded by the proof. (Johnson vs. Johnson's Adm'r, 1 Des., 595, supra.)

IX. This suit is brought under section 9, (Wagn. Stat., ch. 145,) and is in accordance with Hill vs. Martin, 28 Mo., 81; Guitar vs. Gordon, 17 Mo., 408.

X. When a question of legitimacy becomes involved in controversy, in a court of chancery, it is said to be usual to make up an issue and have the matter tried by a jury. Fornshill vs. Murray, 1 Bland Ch., 485; Johnson vs. Johnson's Adm'r, 1 Harris & McHenry, 152, supra.)

The appellants say respondents bring their suit under section 47 of chapter on wills, and that said section contemplates cases only, where devisees, legatees or heirs have received and are required to refund. This court has passed upon this very point, against the position of appellants, in Levin vs. Stephens (7 Mo., 90); and the statutes of 1835, which that decision interprets, are identical with present statutes.

NAPTON, Judge, delivered the opinion of the court.

This suit was brought under the 9th and 47th sections of the act concerning wills (Wagn. Stat., 1365). The plaintiffs in their petition state that the decedent William Gilliss and Kahketoqua, an Indian wowan, child and daughter of Laharsh, a chief of the Piankeshaw nation or tribe of Indians, in the life-time of said Gilliss, and in the Indian country, about the year eighteen hundred and thirty, were married as husband and wife, and for a long time thereafter cohabited and lived together as such husband and wife, that there was issue of said marriage, to-wit: Nancy Gilliss; that said Nancy was the only issue or child of said marriage; that said Nancy was twice married, first, to Joseph Boyer, who, having died, she was secondly married to James Charley. That plaintiff, Francis Boyer, is the sole child and issue of said first marriage, and plaintiff, James Charley, Junior, is the sole child and issue of said second marriage. That said Nancy afterwards, in the year 1862, died leaving plaintiffs her only children, issue and heirs. That said Kahketoqua, wife of said Gilliss and mother of said Nancy, died about the year 1863, having had an only child and issue, the said Nancy. That William Gilliss, said decedent, about the 19th day of July, 1869, died, having first made his will. That said Gilliss died, leaving, then living, no child or children or descendant of any child or children except plaintiffs, children, as before stated, of said Nancy and grand-children of said Gilliss, and so died leaving no widow, and that plaintiffs are the only heirs of said testator, Gilliss. Plaintiffs file the will of said Gilliss and make it part of their petition, and state that by said will defendant, Mary A. Troost, was appointed executrix thereof; that said Mary A. Troost caused said will to be admitted to probate in the Probate Court of the county of Jackson, and took out from said court letters testamentary as the executrix of said will, and was proceeding to administer the estate and execute said will according to the terms and...