Connors v. Connors

• Decision Date: 01 July 1895
• Citation: 40 P. 966,5 Wyo. 433
• Parties: CONNORS ET AL. v. CONNORS ET AL
• Court: Wyoming Supreme Court

40 P. 966

5 Wyo. 433

CONNORS ET AL. v. CONNORS ET AL

Supreme Court of Wyoming

July 1, 1895

Amended petition filed in District Court January 20, 1894.

ERROR to the District Court for Albany County, HON. JOHN W. BLAKE Judge.

This was an action brought on the probate side of the district court, in the matter of the estate of Charles Connors deceased, by certain children of a deceased brother of Charles Connors, deceased, claiming to be the only heirs at law to his estate. The petition alleged that said Charles Connors left neither mother, father, brother, sister, wife or children surviving him. The answer alleged a marriage between said Charles Connors and one Augusta Burke, their living together as husband and wife for many years, the birth of one child during the lifetime of the deceased, and a posthumous child about two months after his death. The claimants assailed the validity of the marriage, and the legitimacy of the children, attempting the latter by an endeavor to show that Charles Connors was impotent, and that his wife was unfaithful. The testimony of two witnesses who were present at the marriage, and that of the widow, disclosed that at Laramie City, Wyoming, on the 14th day of August, 1876, the said Charles Connors and one Augusta Burke (the latter now claiming to be the widow), were united in marriage by a Presbyterian minister, the pastor of a church at Laramie, and a certificate of marriage was presented and identified signed by the officiating clergyman. The records in the office of the county clerk did not show any book of marriage license records covering that period, except a book labeled "Index to marriage license record." In this book there was an entry as follows: "August 15, 1876, Charles Connors and Augusta Burke." The birth of the children was proven, and that said Charles Connors and Augusta Connors had lived and cohabited together from the time of the solemnization of their marriage until about the 3rd day of May, 1892. At that time said Augusta Connors went to Denver. On July 23, 1892, said Charles Connors died intestate, by suicide, leaving an estate consisting of real and personal property. Elmer T. Beltz was appointed administrator of his estate. A letter purporting to have been written to Charles Connors by his wife, from Denver, was offered in evidence and excluded. The letter addressed him as "Mr. Connors," and was signed "Augusta," and, among other things, stated, "As I know it is no use to try deny or excuse anything, so it is best to tell the truth; you know as well as I do how it is, because you took and opened the letter I wrote to Bob; you know from that the baby is not yours; so the truth might as well be told." She suggested in the letter that he procure a divorce, and that she was never coming back to him. Another letter from her to one Robert Cowper was also offered and excluded, wherein she addressed him as "My own darling husband," and referred to the fact that he had others to look after besides himself, and generally exhibiting much affection for him. Augusta Connors, as a witness, testified that the two children, and one other who had been born dead, were born to the deceased Charles Connors and herself. Considerable additional testimony was introduced touching the physical condition of the husband, the baptism of the child born during the lifetime of the deceased, and the relations existing between husband and wife during the time they lived together. The trial court found that a license had been issued, the marriage ceremony had been performed, that the parties had lived and cohabited together as husband and wife thereafter until May 3, 1892, that the child Carl was born May 3, 1891, and the child Robert on September 28, 1892. That said children are the issue of the marriage of said Charles and Augusta Connors and born in lawful wedlock, and are the legitimate children of said parties; and that Charles Connors was not impotent. It was also found that Augusta Connors was the widow of the deceased, and that she and the said two children are the only heirs at law of said decedent. The collateral claimants to the estate brought error. At the time of the marriage, 1876, the statutes in reference thereto were, so far as material, as follows: "In law, marriage is considered a civil contract, to which the consent of parties capable of contracting is essential." (Comp. L. '76, p. 478; R. Stat., sec. 1541.) "Previous to the solemnization of any marriage in this territory, a license for that purpose must be obtained from the county clerk of the county wherein the marriage is to take place." (Comp. L., p. 478; Rev. Stat., sec. 1544.) "Every judge and justice of the peace, and every licensed and ordained preacher of the gospel, may perform the ceremony of marriage in this territory." (Comp. L., p. 478; R. S., sec. 1548.) Two witnesses beside the minister or magistrate are required. (Comp. L., p. 479; R. S., sec. 1549.) Every person having authority to join others in marriage shall, within three months after the solemnization of any such marriage, make and deliver to the county clerk of the county in which the marriage took place, a certificate containing the particulars mentioned in the preceding section." (C. L., p. 479; R. S., sec. 1551.) The preceding section provides for the issuing of a certificate to the parties by the one performing the ceremony.

Judgment affirmed.

S. W. Downey and W. H. Fishback, for plaintiffs in error.

No presumption of marriage can exist in this State until the record is made and recorded in the county clerk's office. (R. S., secs. 1544, 1556.) Until recorded, no presumption exists that a license was issued. The statute is mandatory, and no legal marriage can be performed without a compliance with it. There is no evidence that the one performing the ceremony was a licensed or ordained minister of the gospel, and the findings are silent on that matter. The certificate of marriage was erroneously admitted in evidence. (R. S., sec. 2221; L. 1890, p. 294; People v. Slack, 15 Mich. 193; Waymire v. Jetmore, 22 O. St., 271; McDeed v. same, 67 Ill. 545; People v. Bennett, 39 Mich. 208; Wightman v. same, 4 Johns. Ch., 343.) When the contract essential to the validity of a marriage is wanting because a party is unable to give the required assent, or does not really consent, being induced by fraud, or duress, such party becoming free to consent, or upon exposition of the deception, may or may not recognize the marriage. A failure to consent is a sufficient dissent. (Shatter v. State, 20 O., 1; Jinkins v. same, 2 Dana (Ky.), 102.) The marriage was void because of the impotency of Connors. (2 Bouv. L. D., 109; 2 Kent's Com., 40; Powell v. same, 18 Kan. 371; Patterson v. Gaines, 6 How., 550; Rawdon v. Same, 28 Ala. 565; Stewart on Mar. & Div., 141; Lincoln v. same, 6 Rob. (N. Y.), 525; Dean's Med. Jur., 8-10; Smith v. Morehead, 6 Jones Eq., 360; 2 Phill., 10; 2 Hagg., 332.)

C. E. Carpenter, for defendants in error.

The facts show a valid marriage. (Cooley's Blackst., 434-39; Meister v. Moore, 96...