Edelstein v. Brown

• Decision Date: 02 June 1906
• Citation: 95 S.W. 1126
• Parties: EDELSTEIN v. BROWN et al.
• Court: Texas Court of Appeals

95 S.W. 1126

EDELSTEIN v. BROWN et al.

Court of Civil Appeals of Texas.

June 2, 1906.

Rehearing Denied June 23, 1906.

Appeal from District Court, Camp County; R. W. Simpson, Judge.

Action by J. M. Brown and another against E. Edelstein. From a judgment in favor of plaintiffs, defendant appeals. Affirmed.

This is the second appeal in this case. See 35 Tex. Civ. App. 625, 80 S. W. 1027. It is a suit instituted against appellant by appellees, J. M. Brown and L. B. Brown, as the children and heirs at law of Mrs. S. E. Edelstein, deceased, to recover and have partitioned and set apart to them the said Mrs. Edelstein's community interest in the property mentioned and described in their petition. Appellant, among other things, pleaded the general issue, specially denied that he was ever married to Mrs. S. E. Edelstein, and claimed that all the property held by him at the time of her death was his separate property. The case was submitted to the jury on special issues at the May term, 1905, of the court, resulting in the judgment from which this appeal is prosecuted.

M. M. Smith, E. A. King, and Morris & Crow, for appellant. Sam. D. Snodgrass and W. R. Heath, for appellees.

BOOKHOUT, J.

The appellant contends under his thirteenth and seventeenth assignments of error that the verdict of the jury is erroneous for the reason that the undisputed evidence shows that appellees' mother had been engaged in illicit intercourse with appellant prior to December 16, 1895, when she was the wife of another man, from whom she was, by decree of the court, that day divorced, and there is no evidence of any change of status or relation, or contract of marriage at that time or at any time between the date of the divorce and the contract of marriage, if any there was. The divorce was granted on December 16, 1895, and the verdict finds that on that day the appellant and the mother of appellees were married. It may be that if a meretricious cohabitation be shown and nothing afterwards appears indicating a change of opinion or purpose and no counter presumption arises, a continuance of this cohabitation will, under no form of the marriage laws, raise a presumption of marriage. Slight circumstances, however, are sufficient to show a change in the minds of the parties respecting their connection, raising the presumption of marriage. Bishop on Mar. Div. & Sep. §§ 964, 965. Chancellor Kent says: "No peculiar ceremonies are requisite by the common law to the valid celebration of the marriage. The consent of the parties is all that is required." 2 Kent, Com. 87. In Hutchins v. Kimmell, 31 Mich. 130, 18 Am. Rep. 164, Justice Cooley, speaking for the court, said: "Whatever the form of the ceremony, or even if all ceremony was dispensed with, if the parties agreed presently to take each other for husband and wife, and from that time lived together professedly in that relation, proof of these facts would be sufficient proof of marriage." In discussing this question Chief Justice Hemphill in the case of Yates v. Houston, 3 Tex. 450, uses the following language: "But, admitting that their `original' intercourse was illicit with the knowledge of both parties, it would be urging the presumption to an unreasonable extent to suppose that the unlawful character of the connection was unsusceptible of change, and that, when all legal disabilities had ceased to operate, they would voluntarily decline all the honors, advantages, and rights of matrimony, and prefer an association disgraceful to both parties." And again, on page 451, he said: "The judgment which would presume that erring humanity would not repent and reform is too harsh to have place in any beneficial system of law, and we cannot yield our assent to any such doctrine."

The record shows that the divorce of plaintiffs' mother from C. A. Rupp was granted at Dallas on December 16, 1895. Appellant testified that he knew all about the divorce suit. The record shows that he was an important witness for Mrs. Edelstein, then Mrs. Rupp, in the divorce case. He furnished her with the money to pay her lawyer. He testified in that case that he resided at Dallas. Mrs. Edelstein at that time lived at Dallas. They were boarding and occupied the same room. It was while she was then living in Dallas that she, with the consent of appellant, took the name of Mrs. Edelstein, and from that time to her death was known by that name, was introduced by appellant to the public and people generally as Mrs. Edelstein, his wife. Appellant so addressed her in letters written to her. From the time they were at Dallas to the time of her death the appellant and Mrs. Edelstein lived and cohabited together as husband and wife. After the divorce from Rupp, Mrs. Edelstein, moved to Waco, where the appellant visited her and cohabited with her. They then moved to Marlin and kept house until she moved to Pittsburg, where they lived until her death in November, 1902. During the time they lived in Marlin the appellant was suffering with rheumatism and Mrs. Edelstein waited upon him. While living at Pittsburg, deeds were made to real estate by appellant, and to said deeds Mrs. Edelstein was a party and acknowledged the same as the wife of E. Edelstein. Appellant testified: "During her residence in Waco, Marlin, and Pittsburg she was known as Mrs. Edelstein, and we lived together as husband and wife." Did the evidence justify the jury in finding that there was a change in the minds of the appellant and the mother of appellees on December 16, 1895, as to their manner of living, such as to justify a presumption of marriage on that day? The appellant was an important witness in her behalf in the divorce case. He furnished the money to pay her lawyer. He consented to her taking the name of Mrs. Edelstein. He thenceforth recognized her as his wife, introduced her to the public as such and they lived and cohabited together as such until her death, about seven years. There was the act of changing name, cohabitation, reputation, declarations of the parties, their conduct and reception among neighbors and friends, all going to show marriage. Notwithstanding the intercourse between appellant and the mother of the appellees prior to her divorce was illicit, yet the evidence was sufficient to justify the jury in finding that they, immediately upon the granting of the divorce, repented of their sinful course and agreed to become husband and wife, and were so held out each by the other, and were so regarded by their neighbors and friends, and in law were husband and wife. 1 Bish. on Mar. Div. & Sep. §§ 76, 77, 932, 939, 965, 966; Yates v. Houston, supra; Ingersol v. McWillie, 9 Tex. Civ. App. 543, 30 S. W. 56; Burnett v. Burnett (Tex. Civ. App.) 83 S. W. 238; Hutchins v. Kimmell, supra; 2 Kent's Com. 87.

L. B. Brown, one of the plaintiffs, was permitted, over the objection of appellant, to testify as follows: "During my mother's residence in Pittsburg, Waco, Marlin, Dallas, and San Antonio, she was known as Mrs. Edelstein, wife of appellant by everybody in the towns, by the general public, and among her and his relatives. He lived with her during her residence at these places. They both kept house and boarded at each place. At San Antonio in 1893, my mother and Edelstein lived together as husband and wife — boarded part of the time and kept house part of the time. When absent from my mother Edelstein corresponded with her and addressed her as Mrs. Edelstein. My mother's conduct towards Edelstein when living with him as his wife was as good as any man could have been treated, and they were as affectionate as most any man and wife could be. At meal time, if he was late, she always waited to eat with him." Myrtle Brown, wife of L. B. Brown, testified to the same effect. This evidence was objected to as being a transaction with and statement by the plaintiffs' intestate, and, as such, prohibited by statute. It is clear that the testimony objected to is not a "statement by" the deceased, nor do we think it shows any "transaction with" the deceased. The testimony referred to the conduct of Mrs. Edelstein and appellant towards each other, and it does not show that the witnesses received their knowledge of the facts about which they testify from the deceased. Rev. St. 1895, art. 2302. Brown v. Mitchell, 88 Tex. 356, 31 S. W. 621, 36 L. R. A. 64. Again, substantially the same facts were testified to by other witnesses without objection, whose competency was not questioned. Appellant testified: "When I visited her in Dallas, Waco, and Marlin, I cohabited with her at all those places, and so continued when she came to Pittsburg. I lived with Mrs. Edelstein and cohabited with her without being married to her in Atlanta, and also in Dallas and Waco. I do not know when I began writing to her as Mrs. Edelstein. Could not guess at that and decline to even say when it was. It might have been in 1895 or 1896. I could not say, or maybe in 1894. I did not commence writing to her as Mrs. Edelstein until she took the name of Edelstein. I have a sister in Terre Haute, Ind. Two or three sisters and nieces and nephews. They corresponded with me. Sometimes my nieces called Mrs. Edelstein "Aunt Sallie." In their letters to me they spoke of Mrs. Edelstein as "Aunt Sallie." I think I swore on the trial of this case as follows: "During her residence in Waco, Marlin, and Pittsburg she was known as Mrs. Edelstein, and we lived together as husband and wife.'" All the witnesses in this case, both for appellant and appellees, testified that during the time they knew appellant and Mrs. Edelstein they lived together as husband and wife, and that the public regarded her as appellant's wife.

It is contended that the court erred in not allowing the appellant, E. Edelstein, in his own behalf to testify that "I was never married to the mother of plaintiffs, and she and I never agreed in any way or form to become husband and wife, and I never, at any time, agreed with her to...