Cordas v. Ryan

• Decision Date: 18 December 1922
• Docket Number: 10372.
• Citation: 72 Colo. 521,212 P. 490
• Parties: CORDAS v. RYAN.
• Court: Colorado Supreme Court

212 P. 490

72 Colo. 521

CORDAS v. RYAN.

No. 10372.

Supreme Court of Colorado, En Banc.

December 18, 1922

Rehearing Denied Feb. 5, 1923.

Error to District Court, City and County of Denver; Clarence J Morley, Judge.

Proceedings for the probate of the will of N.D. Danicks, deceased contested by Frances Ryan. Judgment for contestant, and proponent, James Cordas, brings error. On application for supersedeas.

Reversed and remanded.

William H. Dickson, Rothgerber & Appel, L. J. Stark and N.C Calogeras, all of Denver, for plaintiff in error.

Enterline & Maley, of Denver, for defendant in error.

DENISON J.

The plaintiff in error was the proponent of the will of N.D Danicks, a Greek by birth, and otherwise known as Nicholas Demetrios Danikas. The defendant in error contested the will, claiming to be the common-law wife of the testator, married without ceremony after the will was made, by which marriage the will was revoked. She was defeated in the county court, but on appeal to the district court was successful. The ground claimed for reversal is that the evidence shows no marriage of any sort, but merely an illicit relation concealed by pretense of marriage or rather by a pretense of the relation of husband and wife. We think no marriage was shown. There is no direct evidence of the matrimonial contract.

Taking the evidence in the light most favorable to contestant, and omitting the testimony against her, we find the essential facts are as follows: In 1919 and 1920 Frances Ryan, the contestant, was working for Danicks as cashier and bookkeeper of his restaurant in Denver. He treated her affectionately. In 1919 and 1920, while she was in Kansas City, he wrote her letters; except one, however, these letters contain little if anything, showing an engagement to marry; in that one he expresses the hope that she will be his wife. He wrote at least one letter to a friend, saying he was going to marry her. In his will, dated January 6, 1921, he left a legacy of $2,000 'to Frances Ryan, a faithful servant in my employment.' On January 25, 1921, being in very bad health, he went from Denver to French Lick Springs, Ind., and took the contestant with him. They occupied the same stateroom and berth, and she referred to him in his presence as her husband. They registered at the hotel at their destination as man and wife, and treated each other as such. Getting no benefit at the Springs, he went to Rochester, Minn. There they registered and conducted themselves as before. He was treated in a hospital there, and introduced her as his wife to doctors and nurses. During this journey she wrote a number of letters to friends and acquaintances of herself and testator, some purporting to be from them both, some signed by her in both names, but her signatures were all 'Frances,' with no surname. She received letters under the name of Miss Frances Ryan. She did not indicate or suggest in her letters that she should be addressed otherwise, nor that she was married, nor did he in his letters. He underwent a severe surgical operation and died March 22, 1921. The body was brought to Denver for burial, and the permission for removal required under the laws of Minnesota stated that it was to be 'accompanied by Mrs. (?) Nicholas Danicks as escort.' She went to the funeral, and testifies that she there claimed to be 'his nearest relative' (she does not say widow), and for that reason insisted on riding, and did ride, in a car nearer the hearse than the one to which she was first assigned. The funeral was on Sunday. On Monday she consulted a lawyer, and on Wednesday she was advised that...