Hadley v. Rash (In re Rash's Estate)

• Decision Date: 06 June 1898
• Citation: 21 Mont. 170
• Parties: In re RASH'S ESTATE. HADLEY v. RASH et al.
• Court: Montana Supreme Court

21 Mont. 170

In re RASH'S ESTATE.HADLEY

v.RASH et al.

Supreme Court of Montana.

June 6, 1898.

Appeal from district court, Missoula county; F. H. Woody, Judge.

Action by Elizabeth Hadley against Manuel Rash and others to establish her claim as widow of Daniel Rash, deceased. From a judgment for defendants, plaintiff appeals. Affirmed.

This is an action brought by plaintiff for a decree adjudging her to be the surviving widow, and as such entitled to share in the distribution of the estate, of Daniel Rash, who died intestate in Missoula county upon the 14th day of March, 1895. The record shows the findings of fact to be substantially as follows, and which findings, it is conceded, are supported by the evidence: First, that the plaintiff and Daniel Rash were married in Iowa about November 28, 1858, and lived together as man and wife until 1864, when Daniel Rash left the plaintiff, going West, and never lived with plaintiff in any relation after that time; second, that Manuel Rash and Elvira Lowdermilk are children of plaintiff and Daniel Rash, and as such entitled to share in the distribution of the estate of Daniel Rash; third, that in the year 1872 the plaintiff intermarried with one William Hadley, and they lived and cohabited as man and wife from the date of their marriage until the death of Daniel Rash; fourth, that Berthena C. Rash and Daniel Rash were formally married in the county of Missoula, this state, about the month of January, 1894, and lived and cohabited together as man and wife from the date of their marriage until the death of Daniel Rash. The court approved the findings of the jury, and decided, as a conclusion of law, that the defendant Berthena C. Rash was at the time of the death of said Daniel Rash his legal wife, and as such is now his legal surviving widow, and entitled to share in the distribution of his estate. In accordance with the findings of fact and conclusions of law, the court decreed the defendant Berthena C. Rash to be the legal surviving widow of Daniel Rash, deceased, and as such entitled to share in the distribution of his estate. The right of Manuel Rash and Elvira Lowdermilk to share as heirs in the distribution of the estate of Daniel Rash is not questioned by any of the parties to this suit. The plaintiff appeals from the judgment of the court decreeing Berthena C. Rash to be the lawful surviving widow of Daniel Rash, deceased, and as such entitled to share in the distribution of his estate.

J. M. Dixon and Bickford, Steff & Hershey, for appellant.

M. L. Cranch, S. G. Murray, T. C. Marshall, and J. K. Wood, for respondents.

PEMBERTON, C. J. (after stating the facts).

Counsel for appellant contend the decree of the court adjudging respondent Berthena C. Rash to be the legal surviving widow of the deceased, Daniel Rash, and as such widow entitled to share in the distribution of his estate, is not supported by the evidence, and is contrary to law. It is argued that this decree is based upon the legal presumption that at some time and place a divorce had been granted, by some court of competent jurisdiction, dissolving the marriage relation entered into between the appellant and Daniel Rash in Iowa in the year 1858. There is no evidence of such divorce. Counsel contend that the court held that it was incumbent upon appellant to prove that there had not been such divorce, and that it was error on the part of the court to presume such divorce, in the absence of evidence to the contrary. It is contended that there is nothing in the pleadings suggesting that there ever was such divorce of the parties. In the complaint, however, there is an allegation that the bonds of matrimony entered into between appellant and Rash had never been dissolved by divorce. This allegation, and all other allegations not admitted, are denied generally by the answer. Counsel say that to prove that there had never been a divorce between the parties would have required the appellant to prove a negative, which in this case, they say, would have been impossible. Treating the subject of proving a negative, Nelson, in his recent work on Divorce and Separation (volume 2, § 580), says, “But this difficulty of proof is not unusual in such cases, since it is the rule that all presumptions shall be made in favor of marriage, where matrimony was the desire of the parties.” The argument of counsel for the appellant overlooks the real issue in this case. It is an admitted fact that the respondent and Daniel Rash were married in Missoula county in January, 1894, and...