Green v. Green
| Decision Date | 22 December 1894 |
| Parties | Green v. Green et al., Appellants |
| Court | Missouri Supreme Court |
Rehearing Granted 126 Mo. 17 at 25.
Appeal from Polk Circuit Court. -- J. G. Simpson, Esq., Special Judge.
Reversed and remanded.
""Upton & Skinker for appellants.
(1) Plaintiff was not a competent witness to prove her marriage with Wm. Green. ""Chapman v. Daugherty, 87 Mo. 617; ""Meier v. Thieman, 90 Mo. 433. (2) The records of the conveyances to Wm. Green were not the best evidence, and appellant's objection to their introduction should have been sustained. (3) The conveyances from Mitchell and others who were not shown to have had any title, do not prove title in Wm. Green. But plaintiff, in order to recover, must not only show that Wm. Green at some time during his marriage was seized of an estate of inheritance in these lands, but she must also show that he owned these premises at the time of his death. R. S. 1889, sec. 4518. (4) The evidence does not show that appellants were in possession of lots 6 and 16 at the time this suit was commenced. (5) Plaintiff having failed to file her election in the recorder's office until after the commencement of this suit such election can avail her nothing in this cause, and the judgment in her favor for a half interest was erroneous. R. S. 1889, sec. 4522; ""Matney v. Graham, 50 Mo.559; ""Griffith v. Canning, 54 Mo. 282; ""Brawford v. Wolf, 103 Mo 391. (6) There being another case pending at the time this suit was instituted, in which the parties were identical, and in which the subject-matter was substantially identical, said first suit is a bar to this one, and this cause should have been dismissed. R. S. 1889, sec. 2043. (7) Victoria Green married Wm. Green in good faith; the marriage was duly solemnized, and they lived together as husband and wife until the death of Wm. Green. The minor defendants herein being the issue of such marriage, they are clearly legitimate and capable of inheriting. R. S. 1889, sec. 4475; ""Lincecum v. Lincecum, 3 Mo. 441; ""Johnson v. Johnson's Adm'r, 30 Mo. 72; ""Buchanan v. Harvey, 35 Mo. 276; ""Dyer v. Brannock, 66 Mo. 391; 1 Bishop on Marriage, Divorce and Separation, sec. 726; ""Adams v. Adams, 28 N.E. 260.
""Hudson, Underwood, Rechow and ""Pufahl for respondent.
(1) The manner of swearing and examining a witness is within the sound discretion of the court. ""State v. Howard, 118 Mo. 143; 5 Am. and Eng. Encyclopedia of Law, p. 119, and cases cited. (2) Plaintiff was a competent witness to prove her marriage to William Green. ""White v. Maxcy, 64 Mo. 560; ""Spradling v. Conway, 51 Mo. 54; ""Garvin's Adm'r v. Williams, 50 Mo. 206; ""Hoyt v. Davis, 30 Mo.App. 309. (3) The records of conveyances to William Green were competent, especially so in this case, when the original must have been in possession of defendant, Victoria. R. S. 1889, sec. 4861; ""Frank v. Reuter, 116 Mo. 521; ""Baum v. Sauer, 117 Mo. 466. (4) William Green is conceded to be the common source of title, and was in possession of the premises sued for during his lifetime, and defendants claim under him, so that if plaintiff has shown a prior right under William Green she was entitled to recover. ""Holland v. Adair, 55 Mo. 40; ""Bank v. Manard, 51 Mo. 548; ""Smith v. Lindsey, 89 Mo. 79; ""Finch v. Ullman, 105 Mo. 255; ""Ebersole v. Rankin, 102 Mo. 488. (5) When premises are temporarily vacant ejectment is properly brought against the person who exercises the usual acts of ownership over the same. ""Phillips v. Phillips, 107 Mo. 360. (6) Issue of a marriage void in law are bastards, and can not inherit from the reputed father. ""Pratt v. Pratt, 5 Mo.App. 539; Stewart on Marriage and Divorce, sec. 76; Bishop on Marriage and Divorce, sec. 272. (7) The marriage of Wm. Green to plaintiff was not only proven by plaintiff herself, but also by the testimony of Mrs. Yost. ""State v. Cooper, 103 Mo. 266; ""State v. Ulrich, 110 Mo. 366. (8) No appeal lies from an order appointing an administrator. The judgment of the circuit court on appeal setting aside the appointment of Elias Walts as administrator was void. ""State ex rel. v. Fowler, 108 Mo. 465; Woerner's Am. Law of Administration, sec. 543; ""Kenrich v. Cole, 46 Mo. 85. But if the judgment was valid, yet acts done up to the time of the order of revocation are valid. In this case the election was filed September 8, 1891, and the judgment revoking the order ordering the estate into the hands of the public administrator was not made until October 28, 1891. ""Fithian v. Monks, 43 Mo. 520; ""Johnson v. Beazley, 65 Mo. 251. (9) Ejectment is the proper remedy even for common law dower, when the parties claim adverse to the dowress, as the defendants herein do. ""Miller v. Talley, 48 Mo. 503; ""Roberts v. Nelson, 86 Mo. 21; ""Colvin v. Hauenstein, 110 Mo. 582, and cases cited.
The suit is ejectment to recover the undivided half of certain lots in the town of Humansville, Polk county. The answer was a general denial and a plea of the pendency of another suit in the same court, between the same parties for the possession of the same property. The trial was to the court without a jury and resulted in a verdict for the plaintiff and defendants appealed.
The following facts were developed at the trial: About the year 1878, William Green, who represented himself as being a single man was married in due form to defendant Victoria Rogers. Two children, defendants Fannie Green and William M. Green were born of the marriage. The said William Green died testate about the month of March, 1889, possessed of the land in question. By his will he left to defendant Victoria a life estate in said property with remainder to his said children. Defendant Victoria was made executrix but failed to qualify, and on the thirtieth day of May, 1891, the estate was, by the probate court of the county, ordered into the hands of the public administrator for administration.
On the second day of September, 1891, plaintiff executed, acknowledged and filed in the probate court of Polk county the following paper:
"Know all men by these presents, that I, Rebecca Green, widow of William Green deceased, who departed this life on the twenty-third day of March, A. D. 1889, at the city of Humansville in the county of Polk and state of Missouri, do hereby declare my intention to elect to be endowed in the property of the said William Green, deceased, both real and personal, in accordance with and under and by virtue of section 4518 of the Revised Statutes of 1889, and chapter 55 of said statutes concerning dower, and of the Revised Statutes, 1879, section 2190."
Plaintiff offered evidence tending to prove that in July, 1851, plaintiff and the said William Green were married in the county of Cork, Ireland, and that no children were born of the marriage. That in December, 1877, said her husband abandoned her and came to the United States. That she had no knowledge of where he went until after his death, and they were never divorced.
At the request of plaintiff the court gave, among others, this declaration of law:
"That, although it may be shown from the evidence that the said Wm. Green may have contracted a second marriage with the defendant Victoria Rogers (alias Victoria Green), which marriage may have been duly solemnized under the forms of law, and if of the result of said marriage there was certain issue born who are the codefendants in this action, yet if it be shown from the evidence that at the time of contracting said second marriage he had a former wife living in the person of this plaintiff then said second marriage was void and the defendants William and Fannie Green are nor capable of inheriting from the said Wm. Green, and the said Victoria is entitled to no rights as a result of said marriage."
The court refused the following declaration of law asked by defendants:
"The minor defendants herein are capable of inheriting, and, therefore, plaintiff can acquire no rights in the property of Wm. Green by filing her election under the statute."
The question is whether the children of the marriage of William Green to defendant Victoria are capable of inheriting from their father so as to defeat the right of plaintiff to elect under section 4518.
I. The policy of our law is to make legitimate children of all marriages contracted honestly and in good faith by one of the parties. The children of such marriages when entered into in good faith by one, or both of the parties, should not in right be stigmatized as bastards, and disinherited on account of the fraud of one, or the honest misapprehension of both of the parents. To carry out this policy remedial statutes have been passed modifying the harsh common law rule on the subject. Thus our statute on the subject of divorce which gives one party a right to dissolve the marriage in case the other had a husband or wife living at the time it was contracted, expressly provides that no such divorce shall affect the legitimacy of the children. Section 4500. This provision has been retained on our statute books since the revision of 1845 and possibly longer. Again, under our statute law of descents and distribution it was declared as early as 1825 that, "the issue of all marriages deemed null in law or dissolved by divorce shall nevertheless be legitimate." Revised Statutes, 1825, page 328, sec. 8.
This act came before this court for its construction as early as 1834, in case of Lincecum v. Lincecum, 3 Mo. 441. The court says: ...
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