Hunter v. Hunter, 34232

Decision Date18 March 1952
Docket NumberNo. 34232,34232
Citation206 Okla. 573,244 P.2d 1140
PartiesHUNTER v. HUNTER et al.
CourtOklahoma Supreme Court

Syllabus by the Court.

1. Where evidence has been examined by this court and weighed, and the judgment is found not to be against the weight thereof or contrary to law, the judgment will be affirmed.

2. Record examined and judgment held, not to be against the clear weight of the evidence, or contrary to law.

H. P. White, Paul A. Comstock, Pawhuska, for plaintiff in error.

L. R. Stith, Fairfax, for defendant in error.

JOHNSON, Justice.

This is an appeal from the judgment of the district court of Osage County, Oklahoma, rendered on December 31, 1948, on an appeal from the county court determining the heirs of John Samuel Hunter, an Osage Indian Allottee, roll No. 383, deceased.

The record discloses that deceased left a will which was admitted to probate on November 18, 1941, from which no appeal was taken; that the bulk of deceased's estate was left to Frances Pearl Hunter, widow, Arthur Aaron Hunter and William Ballard Hunter, sons, and a cash bequest to Beatrice Hunter Red Eagle; that Joseph Hunter, plaintiff in error, filed a petition in the county court proceedings asking for a declaration of the heirs of the deceased claiming to be his son and heir, and to have been unintentionally omitted from the will and waived his right to contest the will and elected to take under the law of descent and distribution. From an adverse judgment, he appealed to the district court where the cause was tried de novo, which resulted in another judgment adverse to the claims of the petitioner, resulting in this appeal.

The trial court made findings of fact, the substance thereof material to the issues to be determined herein is: First, that there was no marriage between John Samuel Hunter, the alleged father of Joseph Hunter and Marie Osborne, the mother of Joseph Hunter, void or otherwise; second, that at no time did John Samuel Hunter take his alleged son, Joseph Hunter, into his home to live with him, with or without the consent of his wife, or acknowledge him in writing to be his son, or adopt him, or do anything to legitimate him in any manner known to the law, and that Joseph Hunter was neither the legitimate or legitimated son of John Samuel Hunter.

It is first contended by appellant that there was a common-law marriage between John Samuel Hunter and Marie Osborne, which was admittedly void because of living undivorced spouses of the parties thereto, but that Joseph Hunter was the legitimate issue of the marriage and lawful heir of deceased, under Section 215, Title 84, O.S. 1941, which provides that the issue of all marriages null in law or dissolved by divorce are legitimate; and that the finding of fact to the contrary was against the clear weight of the evidence and contrary to law.

We shall first determine the question as to whether the court's finding that no such marriage existed was against the clear weight of the evidence.

Marie Osborne testified that she was a fullblood Cherokee Indian; that she graduated from the normal school of the Cherokee Female Seminary of Tahlequah, Oklahoma, and was given a Teacher's Certificate; that she and John Osborne were married in 1912 and to this union three children were born; that they separated about 1921, but that neither obtained a divorce; that she was informed by Osborne's sister that he was dead; that in the spring of 1923, while she was living with Rosa West she first met John Hunter; that on the day she and he agreed to become husband and wife she, Josephine West and John Hunter left the West home in John Hunter's car; that when they had driven out into the pasture she and John got out of the car; that he took the back seat cushion out of the car and that they sat on it under the shade of a tree while Josephine drove the car on to Nelagony to get some cigarettes and a newspaper; that Josephine and Rosa West had already mentioned to her that John Hunter wanted to marry her; that while sitting there John made love to her; that she told him that she didn't want to just take up with him and he said it was done like that; that she knew about common-law marriages; that he asked her to marry him; that she consented and he and she agreed then and there to be husband and wife, whereupon they had sexual intercourse and lived together as man and wife until after Joseph Hunter was born; that she did not tell Dr. Meloy, who attended her at Joseph's birth, that John Osborne was the father of the child, but admitted signing a complaint in bastardy in the County Court of Osage County against John Hunter in 1929; that shortly after her marriage Rosa West gave her and John Hunter a dinner and invited some others to celebrate their wedding or living together; that John, in the presence of others, acknowledged her as his wife; that she entered into the marriage in good faith; that John acknowledged Joseph as his son and continued to live with her on Rosa West's farm for a while after Joseph's birth.

The record discloses a birth certificate of a male child born to a fullblood Cherokee Indian woman whose maiden name was Marie Steiley, residence as Tahlequah, Oklahoma, age 33 years. The child's name is given as Osborne (Osbourne) and his father's name as John Osborne (Osbourne). This certificate was signed by Dr. R. C. Meloy, whose address is shown thereon as Claremore, Oklahoma.

Dr. R. C. Meloy testified that he resided in Claremore, Oklahoma; that he belonged to Rogers County, Oklahoma State and American Medical Associations; that he was a practicing physician and surgeon and was such on February 14, 1924 at Claremore, Oklahoma, and attended the birth of a child on that date at a place sometimes called the Reed Rooms and sometimes the Magnolia Rooms; that he was called by the landlady and by Tom Brown, a County Commissioner, to go and attend Marie Osborne; that he answered the call; that he had never seen her before but saw her again when he testified in a bastardy case in 1930 in the County Court; that he sought information for the child's birth certificate from Mrs. Osborne and sat down by the side of the bed and asked her the questions necessary to go in the birth certificate; that the information given to him was written in a book and then transferred to the birth certificate; that she told him that the father of the child was her husband, John Osborne; that the child was legitimate and that she made no mention at that time the baby belonged to John Hunter.

The record further discloses that in the bastardy proceedings, Marie Osborne and some of the witnesses for appellant in the case at bar testified therein and that no claim or mention was ever made, at that time, of any attempted common-law marriage but they now testify that there was such a relationship.

On December 3, 1929, the date of the first trial in the bastardy action, Marie Osborne testified that she was advised by John Hunter before she had sexual intercourse with him that he could not marry her because he had a wife from whom he was not divorced.

It is unquestioned that John (Samuel) Hunter, by license and statutory ceremony, was married in Osage County, Oklahoma, on June 29, 1921, to Louise Baconrind Young and that this marital status continued until April 6, 1925, at which time Mrs. Hunter obtained a...

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8 cases
  • Benson's Estate, Matter of, 48530
    • United States
    • Oklahoma Supreme Court
    • December 7, 1976
    ...of claimant as legitimate. '2. The burden of proof to establish all elements of legitimation is upon the claimant.' In Hunter v. Hunter, 206 Okl. 573, 244 P.2d 1140, we alluded to the sufficiency of evidence of public 'While there is some evidence that he acknowledged to certain individuals......
  • Cox v. State Indus. Court
    • United States
    • Oklahoma Supreme Court
    • November 24, 1964
    ...wife of Cherokee Bill Mouse and that Mouse and Beatrice had not been divorced, therefore under the rule in the case of Hunter v. Hunter, 206 Okl. 573, 244 P.2d 1140, all four of Beatrice's children are the legitimate children of Cherokee Bill With this argument we do not agree. In the Hunte......
  • Cravens' Estate, In re
    • United States
    • Oklahoma Supreme Court
    • March 16, 1954
    ...community. Most recently we have considered a similar question in In re Lewis' Estate, 200 Okl. 352, 194 P.2d 174, and Hunter v. Hunter, 206 Okl. 573, 244 P.2d 1140. The latter case presents an able discussion of the elements required to bring such cases within purview of the statute. Witho......
  • Estate of Raulston, Matter of
    • United States
    • United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma
    • September 25, 1990
    ...all marriages null in law, or dissolved in divorce, are deemed to have been born in wedlock.84 O.S. § 215.See also, Hunter v. Hunter, 206 Okl. 573, 244 P.2d 1140, 1143 (1952) (§ 215, formerly Comp.St. 1921, § 11303, applies only "where the parties in good faith, attempt to contract the marr......
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