Collard v. Burch

• Decision Date: 31 May 1909
• Citation: 119 S.W. 1009,138 Mo. App. 94
• Parties: COLLARD v. BURCH.
• Court: Missouri Court of Appeals

119 S.W. 1009

138 Mo. App. 94

COLLARD v. BURCH.

Kansas City Court of Appeals, Missouri.

May 31, 1909.

1. APPEAL AND ERROR (§ 1010)—REVIEW— FINDING OF COURT—SUFFICIENCY OF EVIDENCE.

In a proceeding to establish a claim against the intestate's estate for an allowance as the widow of the intestate, the finding of the court that plaintiff was not the widow of intestate will not be reversed on appeal, where there is substantial evidence to support such finding, as the finding of the trial court in a law case will be treated as the verdict of a jury.

2. WITNESSES (§ 159)—COMPETENCY—PARTIES TO CONTRACT WITH DECEASED PERSONS.

Under Rev. St. 1899, § 4652 (Ann. St. 1906, p. 2520), relating to evidence of transactions with a decedent, in a proceeding to establish a claim against the estate of a deceased person as the widow of deceased, she cannot be allowed to testify as to her marriage with deceased.

3. MARRIAGE (§ 47)—ADMISSIBILITY OF EVIDENCE.

In a proceeding to establish a claim against the estate as the widow of intestate, where the point in issue was the marriage of plaintiff to the intestate, plaintiff's application to be appointed a notary public in her maiden name and her appointment and bond were admissible in evidence as tending to show that, during the period she claimed to be the wife of intestate, she held herself out to the world as a single woman, and also as in the nature of an admission.

4. WITNESSES (§ 159)—COMPETENCY—TRANSACTIONS WITH DECEDENT.

The court also properly refused to permit her to testify as to her reasons for applying for a commission as notary public in her maiden name, as this would have afforded her an opportunity to testify to the existence of a marriage contract, and thus evade a prior ruling of the court that she was an incompetent witness; the other party to the alleged marriage contract being dead.

Appeal from Circuit Court, Cole County; E. W. Hinton, Special Judge.

Action by Anna C. Collard against Nelson C. Burch, administrator of the estate of J. D. Collard, deceased. Judgment for defendant in the probate court, and plaintiff appealed to the circuit court, where defendant again recovered judgment, and plaintiff appeals. Affirmed.

W. S. Pope, J. B. Harris, and L. H. Waters, for appellant. A. T. Dumm, for respondent.

JOHNSON, J.

Plaintiff began this proceeding in the probate court of Cole county by filing a claim under the statute for an allowance as the widow of J. D. Collard, who died in Cole county in March, 1907. The administrator with will annexed resisted the claim on the ground that plaintiff was not the widow of the decedent. The probate court tried this issue and decided it in favor of the administrator. Plaintiff appealed to the circuit court, a jury was waived, and a trial of the cause to that court resulted in judgment for the administrator. No declarations of law were asked or given. Plaintiff brought the case here by appeal.

Plaintiff endeavored to prove her marriage to Mr. Collard in 1904. In the opening statement of her counsel, the claim was made that a marriage ceremony was performed by the probate judge at Leavenworth, Kan., but this claim was not suported by formal proof, and the evidence adduced by plaintiff consisted of facts and circumstances which tended to show that, from 1904 to the date of Mr. Collard's death, the parties lived together as man and wife in a manner to indicate the existence of a marriage either by formal ceremony or at common law. On the other hand, the evidence offered by the administrator strongly tended to prove that the cohabitation of the parties was illicit. We see no occasion for reciting the facts. Suffice it to say that the contention of each party was well sustained by evidence—so well and evenly sustained that, were we sitting as triers of facts, we would find it difficult to decide on which side lies the weight of the evidence. Being a law case, the finding of the trial court on the issues of fact should be treated as the verdict of a jury, and, since we find it supported by substantial evidence, we must accept it as a final adjudication of such issues and affirm the judgment, provided we further find that the case was tried without error prejudicial to plaintiff. As there was no issue born of the...