Henry v. McNealey

• Decision Date: 17 May 1897
• Citation: 24 Colo. 456,50 P. 37
• Parties: HENRY et al. v. McNEALEY et al.
• Court: Colorado Supreme Court

50 P. 37

24 Colo. 456

HENRY et al. v. McNEALEY et al.

Supreme Court of Colorado

May 17, 1897

Appeal from district court, Weld county.

Action by Joseph G. Henry and Malissa Henry Harris against Virginia McNealey, Maria A. Baird, Nellie A. Evans, and the unknown heirs of David Henry, deceased. From a judgment in favor of defendants, plaintiffs appeal. Affirmed.

Appellants and appellees are contesting in this action the right to inherit a one-half interest in the property of one David Henry, deceased, who died intestate in this state on the 24th day of December, 1891, leaving a widow, who survived him only 18 days. This wife died without issue, leaving her mother Nellie A. Evans, her sole heir. There is no controversy in this action over the property rights of Nellie A. Evans, it being admitted that she is entitled to an undivided one-half of the estate of David Henry, deceased, the remainder of the estate only being in controversy between the parties. The evidence develops the following peculiar state of facts: In April, 1839, David Henry, the deceased, and one Rebecca Smith were lawfully married in the state of Missouri. The certificate of this marriage was properly placed upon record in compliance with the laws of Missouri. David Henry lived with this wife for a period of about three years, when he deserted her, the parties ever after that living apart. The issue of this marriage are the appellees Virginia McNealey and Maria A. Baird. In 1873, Rebecca obtained a divorce from David Henry, her husband. This divorce was granted by the circuit court of Sullivan county, Mo. In October, 1878, she died. The evidence is, in fact, uncontradicted that David Henry and Rebecca Smith, although living apart, were husband and wife from April 19, 1839, to April 9, 1873, a period of 34 years. After deserting this wife, in 1842, David Henry moved out of the state of Missouri, and remained away for a number of years, returning about the year 1848. Appellants contend that David Henry and one Susan Strong were married in Missouri on the 20th of June, 1849. It is conceded that this marriage was null and void, as the first wift was living at the time, but it is insisted that the children of this union were legitimated by the statute of Missouri, which provides that 'the issue of all marriages deemed null in law, or dissolved by divorce, shall be legitimate.' These children are the appellants, Joseph C. Henry and Malissa Henry Harris. Joseph was born in Missouri in 1850, and Malissa in 1852, and both continued to reside in that state up to and at the time of the trial in the district court. About the year 1852, David Henry and Susan Strong crossed the plains, and lived and cohabited together in California and Oregon for about nine years, returning to Missouri in 1861. They then separated, and did not thereafter live together. After the death of David Henry's first wife, Rebecca which occurred upon the 21st day of August, 1879, in sullivan county, Mo., he married Calista Evans, who survived him. This marriage, like the first, is admitted to have been valid. In 1879, David Henry and his wife, Calista, took up their residence in Colorado, and continued to reside in this state until his death, in 1891. After the separation of David Henry and Susan Strong, in 1861, they never met. A trial in the district court resulted in a verdict and judgment for appellees. Plaintiffs bring the case here by appeal.

James W. McCreery, Charles D. Todd, George Hall, and Homer Hall, for appellants.

H. N. Haynes, for appellee Virginia McNealey.

John H. Reddin, for appellee Maria A. Baird.

HAYT C.J. (after stating the facts).

There is some controversy in this court as to the precise ground upon which the judgment in favor of appellees was placed by the court below. We do not see, however, that this can be a material issue in the case. The record shows that both plaintiffs and defendants offered all their evidence in the court below, and rested. The record further shows 'Thereupon respondents asked for judgment against the petitioners, and for their costs herein. The Court: There will be an order entered as to dismissal against the petitioners, and for the defendants' costs.' Thereupon judgment was entered in favor of the defendants. Upon this appeal we are not concerned with the reason given by the district court for its judgment. We are to look solely to the conclusion reached by that court, and if, for any reason, the plaintiffs failed to make out a good cause of action, the judgment must be affirmed. It is admitted by the appellants that they are not entitled to inherit under the laws of the state of Colorado, nor otherwise than by virtue of the statute of the state of Missouri, which reads as follows: 'The issue of all marriages deemed null in law, or dissolved by divorce, shall be legitimate.' It is evident that this statute operates only upon the issue of marriages, and not upon the off-spring of every unlawful cohabitation; so that, in order to be aided by this statute, it must appear that a marriage of some kind existed between his parents. This is not only in obedience to the plain language of the statute, but is the construction placed upon it by the courts of the state of Missouri, Johnson v. Johnson, 30 Mo. 72; Buchanan v. Harvey, 35 Mo. 276; Green v. Green, 126 Mo. 17, 28 S.W. 752, 1008. Plaintiffs, assuming this burden, allege in their complaint that a marriage between David Henry and Susan Strong was, in fact, solemnized in Sullivan county, Mo., on the 20th day of June, 1849. It devolved upon the petitioners to prove this marriage, as alleged, but their evidence upon this issue is far from satisfactory. To support the claim that such a marriage did take place, certain depositions were introduced at the trial. The witness Jane Stonebroker testified that her maiden name was Jane Strong, and that she was the daughter of Susan Strong, and a half-sister of appellants Joseph G. Henry and Malissa Henry Harris. She says that Divid Henry and her mother were married in Sullivan county, Mo., on the 29th day of June, 1849, and that witness was present at their marriage, and mentions the names of seven or more other people who were also present. This deposition was taken in a proceeding to perpetuate testimony some time before the institution of this action. The witness was not subjected to cross-examination. Although she testifies directly and positively to the marriage, she does not attempt to give details, but rests content with the general statement that a marriage took place, the witness being only seven years of age at the time. The deposition of Susan Strong Henry, the mother of Jane Stonebroker, was also introduced at the trial. She corroborates her daughter's evidence as to the marriage, and says that it was solemnized by the Reverend John Price, a Methodist minister, living near by. With the exception of one Leonard Strong, who was only two years old at the time of the alleged marriage, the evidence of no other witness to the ceremony was introduced, although a number of the parties were living at the time of the trial, who, it is claimed, were present at the time of the marriage. The witnesses mentioned, and others, testified that David Henry and Susan Strong lived together as husband and wife for the period of about 10 years, and that during this time he often spoke of her as his wife, and occasionally introduced her to others as bearing such relation. ...