Ghelin v. Johnson
| Decision Date | 19 September 1932 |
| Docket Number | No. 28819.,28819. |
| Citation | 186 Minn. 405,243 N.W. 443 |
| Parties | GHELIN v. JOHNSON et al. |
| Court | Minnesota Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Hennepin County; Mathias Baldwin, Judge.
Proceedings in the matter of the administration of the estate of Franz Frithiof Lust, also known as Frank Ghelin. The probate court appointed the Minnesota Loan & Trust Company as administrator upon the petition of Clara Johnson and others, and the objector, Marie Chapman Ghelin, appealed to the district court. From an order denying her alternative motion for judgment or for a new trial, after an adverse verdict, the objector, Marie Chapman Ghelin, appeals.
Order reversed.
1. The evidence sufficiently sustains the verdict.
2. Where there is no proof of any express written or oral agreement of marriage, and a common-law marriage is to be proved by circumstantial evidence, there must be evidence of cohabitation as man and wife, or the assumption openly of marital duties and obligations, continued for such time and to such an extent as to reasonably sustain the conclusion or inference that the parties have agreed to become and be husband and wife.
3. General reputation that the parties are married is not alone sufficient, but may be shown in connection with cohabitation and other circumstances.
4. The oral or written admissions of the other party to the alleged contract that the marriage exists are admissible in evidence.
5. In the same manner, oral or written admissions by the claimant that she is single and not married, made at a time when it is claimed the marriage existed, are admissible against her.
6. The claimant cannot present her own declarations to third persons that the marriage exists, not made in the presence of or acquiesced in by the other party to the alleged marriage contract.
7. Declarations in denial of the marriage by the other party, made to third persons, not in the presence of, or acquiesced in by, the claimant, are inadmissible, unless admissible under some exception to the hearsay rule.
8. An application for a passport, made by the other party, not in the presence of, or brought to the knowledge of, the claimant, wherein the applicant stated that he was single, was not admissible in evidence.
9. An invalid, so-called holographic will, made by the other party, not in the presence of or known to the claimant, is not admissible in evidence against her. It was error to refuse a request to charge, in substance, that the holographic void will was of no legal effect and should be disregarded by the jury.
10. Charts and records of a hospital in which the other party was a patient, wherein he was described as a single man, and declarations made by him to hospital attendants to that effect, which instruments and statements were not known to the claimant and with which she had nothing to do, were not admissible against her.
11. The instruments and declarations referred to in the foregoing paragraphs were not admissible as evidence of pedigree, or as evidence admissible as part of the res gestae in this case.
12. Income tax returns made by the deceased, in which he reported that he was single, were admissible as declarations against interest. M. H. Boutelle, A. H. David, and William M. Nash, all of Minneapolis, for appellant.
Joseph J. Granbeck and F. M. Selander, both of Minneapolis, for respondents.
Marie Chapman, or Marie Chapman Ghelin, appeals from an order denying her alternative motion for judgment or a new trial. For convenience, we refer to her as claimant.
Franz Frithiof Lust, known also as Frank Ghelin, a resident of Hennepin county, died on March 28, 1929, leaving an estate in said county. He died while abroad, leaving no legally executed will. Clara Johnson, a sister of the deceased, petitioned the probate court of said county for the appointment of the Minnesota Loan & Trust Company as administrator of the estate. Two other sisters and a brother of deceased thereafter joined with the petitioner in asking for the appointment of that company as administrator. The claimant appeared and opposed the appointment of the Minnesota Loan & Trust Company as administrator, and asked that she be appointed as sole administratrix of the estate, on the ground that she was the surviving spouse, the widow, of said deceased. The question of whether Marie Chapman was the wife of the deceased at the time of his death, and hence his surviving spouse, was tried in the probate court, and that court found that she was not the wife or surviving spouse of the decedent. That court then granted the petition for the appointment of the Minnesota Loan & Trust Company as administrator of the estate. Appeal was taken by Marie Chapman to the district court. In the district court the same question was tried to a jury, and the jury, by its verdict, found that she was not the wife or surviving spouse of decedent. The trial court has approved the verdict.
1. The sufficiency of the evidence to sustain the verdict is challenged. The evidence is lengthy, and we do not undertake to set it out. The question was one of fact, and we hold the evidence sufficient to sustain the verdict.
2. There remains the question of errors. A preliminary consideration of the nature and kind of proof required to prove the marriage may be of assistance in passing upon the claimed errors. There was no written contract of marriage, as in Hulett v. Carey, 66 Minn. 327, 69 N. W. 31, 32,34 L. R. A. 384, 61 Am. St. Rep. 419. There was no civil or religious ceremony of marriage and no license to marry. The other party being dead, claimant could not and did not testify to any verbal contract of marriage, and no other witness testified to the making of any such contract by the parties. In that situation, the claimant necessarily had to rely on circumstantial evidence to prove the contract of marriage. She had to prove the contract of marriage by what is referred to in the Hulett Case as evidence of ‘habit and repute.’ The inquiry then is: What is proper evidence for that purpose? The rules as to what evidence is proper and necessary have been stated in various terms. In 38 C. J. 1316 (§ 89) 2, it is stated that the agreement must be ‘consummated by their cohabitation as man and wife or their mutual assumption openly of marital duties and obligations.’ On page 1318 (§ 91), c, it is stated that The cases are cited in the notes to these sections.
Where there is no proof of any express written or oral agreement, there must be evidence of cohabitation as man and wife, or the assumption openly of marital duties and obligations, continued for such time and to such an extent as to reasonably sustain the conclusion or inference that the parties have agreed to become and be husband and wife. The cohabitation and conduct must be of some continuance and such as is usual between persons lawfully married. Heminway v. Miller, 87 Minn. 123, 91 N. W. 428;Haley v. Goodheart, 58 N. J. Eq. 368, 44 A. 193;Eldred v. Eldred, 97 Va. 606, 34 S. E. 477;Bellinger v. Devine, 269 Ill. 72, 109 N. E. 666;In re Yardley's Estate, 75 Pa. 207;Odd Fellows' Beneficial Ass'n v. Carpenter, 17 R. I. 720, 24 A. 578; In re Dysart Peerage, 6 App. Cas. 489.
3. General reputation that the parties are married is not alone sufficient to prove marriage, but may be shown in connection with cohabitation and other circumstances. Osborne v. Ramsay (C. C. A.) 191 F. 114;Gorden v. Gorden, 283 Ill. 182, 119 N. E. 312;Peet v. Peet, 52 Mich. 464, 18 N. W. 220;In re Stevenson's Estate, 272 Pa. 261, 116 A. 162.
4. Where the claimant seeks to prove a common-law marriage by circumstantial evidence, the oral or written admissions of the other party to the alleged contract, that the marriage exists are admissible in evidence. Heminway v. Miller, 87 Minn. 123, 91 N. W. 428;Hulett v. Carey, 66 Minn. 327, 69 N. W. 31,34 L. R. A. 384, 61 Am. St. Rep. 419;People v. Imes, 110 Mich. 250, 68 N. W. 157; Mason's Stat. 1927, § 9899.
5. In the same connection, evidence of oral or written admissions or declarations of the claimant that she is single or not married, made at a time when it is claimed the marriage existed, are admissible against her.
6. The claimant cannot present her own admissions or declarations that the marriage exists, made to third persons, not in the...
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