Brisbin v. Huntington

• Decision Date: 12 April 1905
• Citation: Brisbin v. Huntington, 128 Iowa 166, 103 N.W. 144 (Iowa 1905)
• Parties: JOSEPHINE TALBOT PARKER BRISBIN, Appellant, v. CHARLES S. HUNTINGTON and HADLEY M. HENLEY, Trustees under the will of James Monroe Parker, deceased; FRANK FRAISSINET, now known as and called FRANCIS TADMIR PARKER, a minor; PAULINE FRAISSINET, guardian of said Frank Fraissinet; ALEXANDER TULSI PARKER, a minor, and WALTER A. HANSEN, his guardian
• Court: Iowa Supreme Court

103 N.W. 144

128 Iowa 166

JOSEPHINE TALBOT PARKER BRISBIN, Appellant, v. CHARLES S. HUNTINGTON and HADLEY M. HENLEY, Trustees under the will of James Monroe Parker, deceased; FRANK FRAISSINET, now known as and called FRANCIS TADMIR PARKER, a minor; PAULINE FRAISSINET, guardian of said Frank Fraissinet; ALEXANDER TULSI PARKER, a minor, and WALTER A. HANSEN, his guardian

Supreme Court of Iowa, Des Moines

April 12, 1905

Appeal from Scott District Court.--HON. P. B. WOLFE, Judge.

ACTION to construe a will. Both parties appeal--that of plaintiff being first perfected.

Reversed.

Lane & Waterman, for appellant.

Hamilton & Maxwell, Chamberlain & Petersen, and Cook & Dodge, for appellees.

OPINION

LADD, J.

J Monroe Parker departed this life in 1892, leaving, him surviving, three children. One of these died unmarried and without issue shortly after the father, and by the terms of the latter's will his interest in the estate passed to the other two, William Frederick Parker and the plaintiff. William Frederick died in 1902, and the important questions involved are whether he was ever married, and, if not whether the defendants Francis Tadmir Parker and Alexander Tulsi Parker, or either of them, are entitled to one-half of the income derived from the estate of J. Monroe Parker. His will is somewhat lengthy, and only those portions directly involved need be set out. By the tenth clause the testator gave and devised to three trustees, and "to their successors in the trust here created, in trust for the uses and purposes hereinafter specified," numerous tracts of land in Iowa and Nebraska, and directed that they manage the same and lease the several parcels for terms not exceeding five years at any one time, or for longer periods upon the written consent of the cestuis que trust or their guardians, and that after the payment of taxes, insurance, and other necessary expenses, and certain charges thereon, the remainder of the net income to be paid by the trustees to his three children, "share and share alike, as long as they may live." The trust is to continue as long as any of his children live, and then terminate.

If any one of my said three children should die, not leaving lawful issue surviving, the share of the income which would go to such child, shall go to the surviving child or children, share and share alike. But if any one of said children should die, leaving lawful issue, then the child or children so surviving shall take the share of the income which the father or mother would have taken had he or she survived, including the share which would have gone to the said father or mother by reason of the death of any one of my said children without lawful issue.

Thereupon the said real estate pertaining to the said trust, including any accumulations or undivided income thereof, shall be taken and held absolutely in fee simple, by the surviving lawful issue of my said three children. The undivided one-third part of said property, shall be taken by the lawful issue of each one of my said children, share and share alike. If any one child or any children of my said children, shall have died before the termination of said trust, leaving lawfully begotten children, or more remote descendants, lawfully begotten, then such children, grandchildren or more remote descendants shall take the share which would have been taken by their parent had he or she survived. If any one of my children should die leaving no children, grandchildren or more remote descendants lawfully begotten, then the share which would have been taken by such child, or other descendant, shall be divided among the children, grandchildren or more remote descendants of my other children, on the same basis as hereinbefore provided.

I. Whether these children, Francis Tadmir and Alexander Tulsi, shall take the share of the income which would have gone to William, had he lived, depends upon whether they are to be regarded as his lawful issue. If he was married to their mother in 1886 or 1887, as she contends, their right to take as such is not questioned. But a careful examination of the evidence has convinced us that she was never his wife. These parties lived at Florence, Neb., and, under the laws of that state, "marriage is considered a civil contract to which the consent of parties capable of contracting is essential." Section 1, chapter 52, Statutes of Nebraska, 1903. No particular form or ceremony was necessary. All required is that the minds of the parties met in mutual consent. University of Michigan v. McGuckin, 64 Neb. 300 (89 N.W. 778, 57 L.R.A. 917); McFarland v. McFarland, 51 Iowa 565, 2 N.W. 269. And this is accomplished if they lived together, and, in so doing, intend to sustain the relation of husband and wife. Eaton v. Eaton, 66 Neb. 676 (92 N.W. 995, 60 L.R.A. 605). But neither such intention nor consent can be inferred from cohabitation alone. Grimm's Appeal, 131 Pa. 199 (18 A. 1061, 6 L.R.A. 717, 17 Am. St. Rep. 796); McKenna v. McKenna, 180 Ill. 577, 584 (54 N.E. 641). "Consensus non concubitus facit matrimonium," is an ancient but generally accepted maxim.

Aside from cohabitation, the acts of the parties usually resorted to for proof of the status are singularly wanting in this case. They were never reputed among their acquaintances as married; never treated each other as husband and wife, nor spoke of each other as such in the presence of others; did not give the father's name to the offspring until shortly before his death; and, though affectionate to the elder, he appears never to have referred to him as a son until about eleven years of age. True, Mrs. Fraissinet testified that she had been secretly married to deceased in 1886 or 1887, but their conduct up to the time of his death, in 1902, completely refutes her claim. She worked at his house as a servant considerable of the time for several years, and in 1886 engaged to serve as his housekeeper at a weekly wage of $ 4. Parker's books indicate that she continued in this relation until his death. He was scrupulous in crediting her with wages, and charging her with all money paid or time lost, to the last. According to her story, she had become engaged to marry one Wendt, and, shortly after her return to Parker's house, induced him to allow the ceremony to be celebrated there. Not until the wedding guests had been invited was Parker's wooing said to have been begun. Two or three days sufficed, and Wendt was bidden to stay away, for she had agreed to take Parker in his stead. The guests came. The feast was served. If the groom was present, no one knew it, and no one was curious enough to inquire. There was no need of ceremony, and he did not believe in any, so she was informed, and they retired together. Francis Tadmir was born in 1888, but was known until 1901 as Frank Fraissinet. She continued as Pauline Fraissinet, and was never introduced as his wife, did not sit at his table--at least, when guests were present--and occupied a separate room. She never accompanied him in his travels or to entertainments. Possibly they were at the World's Columbian Exposition in 1893 together, but, if so, they traveled apart both ways. To no one did she ever resent herself other than Parker's employe, and as such she was treated by those at the house, whether guests or laborers. After 1894 she accepted a deed from him in which he described himself as single, and her as Pauline Fraissinet. In 1898, in a deed to one Peterson, he again recited that he was unmarried. And in 1901, in conveying the place where he lived, the grantee is named as "Francis Tadmir Parker, known as Fraissinet, son of William Frederick Parker and Pauline Fraissinet; said Francis Tadmir Parker being legitimate according to the laws of the State of Nebraska." This was given to Francis, with instructions to have his mother retain it for him, which she did, until the grantor's death. Even a bequest contained in his will is to "Pauline Fraissinet," without intimation of a marital relation. The evidence is conclusive, as it seems to us, that Parker did not suppose he was married, and the deed to Francis was manifestly intended as a written recognition of this boy as his son. It is inconceivable that he would have so referred to this woman or her son, had she been his wife, and he born in wedlock. To all this should be added the testimony of a credible witness of her admission, subsequent to his death, that they were never married. She denied this, and further explained that the reason for keeping the marriage secret was that Parker did not wish his father to learn of it. But she does not explain why the secret was kept for ten years after the father's death. Was it a matter of preference that she passed as William's mistress, rather than his wife? Two witnesses testify to statements of deceased shortly before his death to the effect that he was living with Mrs. Fraissinet under a common-law marriage, but these are so inconsistent with the solemn written declarations already referred to, and his entire course of life up to the very moment when he is said to have made them, as to seem utterly incredible. It has not been our purpose to detail all the circumstances found in the record, but to set out enough to indicate the grounds upon which we base our conclusion. Though these parties had lived in the same house, and doubtless cohabited, they never pretended to be husband and wife, did not treat each other as such, and were never so reputed among acquaintances. They were content even to have their offspring bear the mother's name as proof of their meretricious relation. They were never married, and their children, when born, were illegitimate.

II. The evidence mentioned sufficiently indicates that William Federick recognized Francis Tadmir Parker, in ...