Hulett v. Carey
| Decision Date | 27 November 1896 |
| Docket Number | 10,080,10,081--(9,10) |
| Citation | 69 N.W. 31,66 Minn. 327 |
| Parties | LUCY A. HULETT v. JOHN R. CAREY, Administrator, and Others. SAME v. SAME |
| Court | Minnesota Supreme Court |
In the matter of the estate of Nehemiah Hulett, then pending in the probate court for St. Louis county, Lucy A. Hulett, as widow of decedent, presented two petitions: the first praying to have the homestead and certain personal property set off to her; the second praying for vacation of a previous order admitting to probate a certain instrument as decedent's last will, and that said instrument be declared not to be the last will of decedent. John R. Carey, administrator with the will annexed, and others appeared in opposition to the granting of the petitions, and from judgments dismissing the same petitioner appealed to the district court for said county.
In the district court both petitioner and respondents made motions in each case that certain questions of fact be submitted to the jury, and the court, C. L. Lewis, J., made an order denying said motions, and ordering submission to the jury of the question set forth in the opinion. The case came on for trial before Moer, J., and a jury, which rendered a verdict answering said question in the affirmative; and thereafter the cases were heard, as to the remaining issues, without a jury, before Moer, J., who made findings and ordered judgment in each case in favor of petitioner. From judgments entered in pursuance of said orders, respondents appealed.
Judgments setting off to petitioner the homestead, and giving her an allowance, affirmed.
Judgment setting aside the probate of the will, and adjudging the same to be of no force or effect, reversed.
J. L Washburn, for appellants.
The record does not show a marriage. The method prescribed by G S. 1894, c. 61, is the only method in this state whereby a marriage can be at once consummated or solemnized. The signing of the contract could have no effect, except to show the consent of the parties and as evidence of their intent. The instrument does not constitute marriage. State v Worthingham, 23 Minn. 528; Hutchins v. Kimmell, 31 Mich. 126; In re Terry's Estate, 58 Minn. 268, 59 N.W. 1013; Meister v. Moore, 96 U.S. 76; Jewell v. Jewell, 1 How. 219; State v. Bittick, 11 L. R. A. 587, 15 S.W. 325; Grimms' Appeal, 6 L. R. A. 717, 18 A. 1061; People v. Loomis, 106 Mich. 250, 64 N.W. 18; Peet v. Peet, 52 Mich. 464, 18 N.W. 220; Hiler v. People, 156 Ill. 511, 41 N.E. 181; Sharon v. Sharon, 79 Cal. 633, 22 P. 26, 131; Yardley's Estate, 75 Pa. St. 207; Durand v. Durand, 2 Sweeny, 315; Hinckley v. Ayers, 105 Cal. 357, 38 P. 735. There must be a contract in praesenti, followed by habit and reputation of marriage, in order to constitute a good common-law marriage. Hantz v. Sealy, 6 Binney, 405; Odd Fellows' Ben. Assn. v. Carpenter, 17 R. I. 720, 24 A. 578; Commonwealth v. Stump, 53 Pa. St. 132; Arnold v. Chesebrough, 7 C. C. A. 508, 58 F. 833; State v. Baldwin, 112 U.S. 490, 5 S.Ct. 278.
The will was not revoked by marriage. In the absence of statutory changes, marriage alone, without birth of issue, will not revoke the will of a man. A single woman's will was at common law revoked by marriage, because after marriage she had no testamentary capacity; but where her disabilities as to making a will have been removed by statute, it is held that her will is not revoked. The reason of the common-law rule having failed, the rule no longer applies. The reason why at common law subsequent marriage did not revoke a man's will was: first, that the law made provision for the widow which the will could not affect; second, that she could have provided for herself by antenuptial agreement. The statutes of Minnesota have not taken away the widow's provision, so that this common-law rule should fail; but they have increased such provision. 2 Redfield, Wills, 293, 294, 298, 299; 1 Jarman, Wills, 270; 3 Washburn, Real Prop. (4th Ed.) 539; Swan v. Hammond, 138 Mass. 45; Warner v. Beach, 4 Gray, 162; Hoitt v. Hoitt, 63 N.H. 475; Webb v. Jones, 36 N.J.Eq. 163; Roane v. Hollingshead, 17 L. R. A. 592, 25 A. 307; Noyes v. Southworth, 55 Mich. 173, 20 N.W. 811; Matter of Burton's Will, 25 N.Y.S. 824, 4 Misc. 512; Swan v. Sayles, 165 Mass. 177, 42 N.E. 570; Brush v. Wilkins, 4 Johns. Ch. 506; Will of Ward, 70 Wis. 251, 35 N.W. 731; Graves v. Sheldon (Vt.) 2 Chip. 71; Goodsell's Appeal, 55 Conn. 171, 10 A. 557.
A. M. Pence, Henry S. Mahon, and C. K. Davis, for respondent.
Marriage is a civil contract jure gentium, to the validity of which the consent of the parties is all that is required by natural or public law. No ceremonies are requisite by common law, and if the contract is made per verba de praesenti, though it be not followed even by cohabitation, it amounts, in the absence of all civil regulations to the contrary, to a valid marriage, which the parties cannot dissolve, and which is equally binding as if made in facie ecclesiae. 2 Greenleaf, Ev. § 460; 2 Kent, Comm. 87; 1 Bishop, Mar. & D. §§ 20, 216-292; 1 Bishop, Mar., D. & Sep. §§ 238, 299, 312-315, 342, 350, 351; Reeves, Dom. Rel. 195 et seq.; Wharton, Confl. Laws, § 152; 2 Hubback, Succession, 276; Swinburne, Espousals, § 4; Fenton v. Reed, 4 Johns. 52; Jackson v. Winne, 7 Wend. 47; McAdam v. Walker, 1 Dow Rep. (H. of L.) 148, 184; Starr v. Peck, 1 Hill, 270; Carmichael v. State, 12 Ohio St. 553; Sharon v. Sharon, 75 Cal. 1, 16 P. 345; Port v. Port, 70 Ill. 484; Hebblethwaite v. Hepworth, 98 Ill. 126; Cartwright v. McGown, 121 Ill. 388, 12 N.E. 737; Hutchins v. Kimmell, 31 Mich. 126; State v. Worthingham, 23 Minn. 528; Dalrymple v. Dalrymple, 2 Hagg. Const. R. 54; People v. Loomis, supra.
Neither cohabitation or repute are necessary to make a valid marriage, where the parties have verbally or in writing agreed between themselves to become presently husband and wife. Bissell v. Bissell, 55 Barb. 325; Askew v. Dupree, 30 Ga. 173; Wier v. Still, 31 Iowa 107; Van Tuyl v. Van Tuyl, 57 Barb. 235; White v. White, 82 Cal. 427, 23 P. 276; Mathewson v. Foundry Co., 20 F. 281; Boyer v. Dively, 58 Mo. 510; Dyer v. Brannock, 66 Mo. 391, 403; Londonderry v. Chester, 2 N.H. 268, 279; State v. Patterson, 38 Am. Dec. 699; Newbury v. Brunswick, 2 Vt. 151, 159; Durand v. Durand, 2 Sweeney (N. Y.) 315; Hargroves v. Thompson, 31 Miss. 211; Richard v. Brehm, 73 Pa. St. 140; Cheney v. Arnold, 15 N.Y. 345.
Marriage alone is such a change in the condition of a man as revokes his former will. 2 Fonblanque, 353, n. b; Sneed v. Ewing, 5 J. J. Marshall, 492; McCullum v. McKenzie, 26 Iowa 510; Tyler v. Tyler, 19 Ill. 151; American Board v. Nelson, 72 Ill. 565; Duryea v. Duryea, 85 Ill. 41; McAnnulty v. McAnnulty, 120 Ill. 26, 11 N.E. 397; Crum v. Sawyer, 132 Ill. 443, 24 N.E. 956; Morgan v. Ireland, 1 Idaho, 786; Brown v. Sherrer, 5 Colo. Ct. App. 255, 38 P. 427; Young's Appeal, 39 Pa. 115; Swan v. Hammond, 138 Mass. 45.
Nehemiah Hulett, for many years a resident of St. Louis county, and generally supposed and reputed to be a bachelor, died July 25, 1892. Proceedings were duly had in the probate court of that county, whereby a will which he had executed in May, 1862, was proved, and admitted to probate on October 10, 1892, and John R. Carey appointed administrator with the will annexed. On February 13, 1893, the respondent, under the name of Lucy A. Hulett, presented her petition to the probate court, alleging that she was the widow of Hulett, that she was married to him on January 6, 1892, and praying that the homestead of the deceased be set apart to her, and that she be allowed to select certain personal property, pursuant to the statutes in such case made and provided. On September 13, 1893, she presented another petition to the probate court reiterating her marriage to the deceased, and praying that the probate of the will be vacated and set aside and that the will be declared not to be the last will and testament of the deceased. In this petition she alleged that she and the deceased were married by mutual consent, but without any formal solemnization, and that in evidence of such marriage a certain instrument in writing was executed by both parties at the time of the contract of marriage.
Both petitions alleged, and it is admitted, that Hulett died without issue, and that no issue was ever born of the alleged marriage between him and the petitioner. The only ground here material, on which it was asked that the probate of the will be vacated, was that it was revoked by the marriage of Hulett to the petitioner subsequent to its execution. The administrator, the devisees and legatees under the will, and the heirs at law of the deceased all opposed the granting of the petitions; their main contention being that the petitioner had never been married to the deceased. It appeared on the hearings before the probate court that the foundation of the petitioner's claim to be the widow of the deceased was the following instrument, alleged to have been executed by her and the deceased on January 7, but by mistake dated January 6, 1892:
The probate court decided adversely to the petitioner, and denied both her petitions, whereupon she appealed to the district court in both cases.
Inasmuch as the main, if not the only, issue in both appeals was whether there had been a valid common-law marriage between the petitioner and the deceased, both were tried together. When the appeals came on for trial, the district...
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