In re Ascertaining and Declaring Rights of Heirs and Persons Who have a Claim or Interest in Estate of Tormey's

• Citation: 44 Idaho 299,256 P. 535
• Decision Date: 19 May 1927
• Docket Number: 4427
• Parties: In the Matter of Ascertaining and Declaring the Rights of the Heirs and Persons Who have a Claim or Interest in the Estate of JOHN TORMEY, Deceased, and of Determining to Whom Distribution Thereof Should be Made. v. FRANK J. KLINE, EDWARD KLINE, LILLIAN A. KLINE, JOSEPH J. KLINE, LOUISE R. KLINE and RENA SOUTHMAYD, Appellants ANNIE CRANE RILEY and DENNIS CRANE, Respondents,
• Court: Idaho Supreme Court

256 P. 535

44 Idaho 299

In the Matter of Ascertaining and Declaring the Rights of the Heirs and Persons Who have a Claim or Interest in the Estate of JOHN TORMEY, Deceased, and of Determining to Whom Distribution Thereof Should be Made.

ANNIE CRANE RILEY and DENNIS CRANE, Respondents, v. FRANK J. KLINE, EDWARD KLINE, LILLIAN A. KLINE, JOSEPH J. KLINE, LOUISE R. KLINE and RENA SOUTHMAYD, Appellants

No. 4427

Supreme Court of Idaho

May 19, 1927

APPEAL AND ERROR-CONFLICTING EVIDENCE-DEPOSITIONS AND DOCUMENTARY EXHIBITS - RULE OF AFFIRMANCE INAPPLICABLE - MARRIAGE - VALIDITY OF SECOND MARRIAGE - PRESUMPTION NOT OVERCOME.

1. Where evidence consists wholly of depositions and documentary exhibits and supreme court has before it exactly same record as was before district court, with opportunity to judge of truthfulness of witnesses and weight to be given evidence, rule requiring affirmance of decision based on conflicting evidence does not apply.

2. Issue of legitimacy held sufficiently raised by denials of petition alleging relationship to deceased and right to share in estate.

3. Presumption of validity of second marriage prevails where death may have removed one of former spouses, or where there may have been a divorce.

4. Presumption of validity of second marriage held not overcome in absence of clear and satisfactory evidence that divorce had not been obtained prior to such marriage.

APPEAL from the District Court of the Sixth Judicial District, for Lemhi County. Hon. Ralph W. Adair, Judge.

Action to determine heirship. Judgment for respondents. Affirmed.

Judgment affirmed and costs awarded to respondents.

John H Padgham and Richards & Haga, for Appellants.

Where a case has been tried entirely upon depositions and documentary evidence and the trial court has not seen and heard the witnesses, the appellate court is in as favorable a position to judge the truthfulness of the witnesses and the weight of the evidence as the trial judge, and the rule requiring the affirmance of a decision based upon conflicting evidence does not apply; the appellate court will examine the evidence anew and make its own determinations according to the preponderance of such evidence. (Roby v. Roby, 10 Idaho 139, 77 P. 213; Village of Sandpoint v. Doyle, 14 Idaho 749, 95 P. 945, 17 L. R. A., N. S., 497; Spofford v. Spofford, 18 Idaho 115, 108 P. 1054; Jackson v. Cowan, 33 Idaho 525, 196 P. 216; McKenzie v. Miller, 35 Idaho 354, 206 P. 505; In re Rexburg Investment Co., 36 Idaho 552, 211 P. 552.)

Where a valid marriage is admitted and no divorce of the parties thereto is shown and it is claimed that one of the parties to this marriage entered into a second marriage during the lifetime of the other party to the first marriage, and the existence of such second marriage is itself a disputed issue in the case and is not established, there can be no presumption in favor of the second marriage or in favor of a divorce terminating the first marriage, for presumptions must be based upon established and known facts and not upon presumptions. (10 R. C. L., "Evidence," sec. 13, p 870; 1 Jones, Comm. on Evidence, 1913 ed., sec. 104; United States v. Ross, 92 U.S. 281, 23 L.Ed. 707; Starkie on Evidence, p. 80; Lawson, Law of Presumptive Evidence, ed. 1899, p. 652; Atchison, T. & S. F. R. v. Baumgartner, 74 Kan. 148, 10 Ann. Cas. 1094, 85 P. 822; Smith v. Pennsylvania Ry. Co., 239 F. 103, 151 C. C. A. 277; Huff v. Huff, 20 Idaho 450, 118 P. 1080.)

There is no unbending presumption in favor of a second marriage or of the innocence of the parties thereto and each case must rest upon its own attending facts and circumstances, and in case there is a conflict in presumptions, the one should yield which has the least probability to sustain it. (18 R. C. L., "Evidence," sec. 44, p. 419; Turner v. Williams, 202 Mass. 500, 132 Am. St. 511, 89 N.E. 110, 24 L. R. A., N. S., 1199; Brokeshoulder v. Brokeshoulder, 84 Okla. 249, 34 A. L. R. 441, 204 P. 284; Schmisseur v. Beatrie, 147 Ill. 210, 35 N.E. 525; Sampson v. Sampson, 223 Mass. 451, 112 N.E. 84; Chandler v. Price, 217 Mass. 451, 105 N.E. 1076; Fisher v. Drew, 247 Mass. 178, 89 Am. St., note, pp. 198, 206, 30 A. L. R. 798, 141 N.E. 875, 2 Schouler, Marriage, Divorce, Separation and Domestic Relations, ed. 1921, sec. 1257; Lynch v. Knoop, 118 La. 611, 118 Am. St. 391, 10 Ann. Cas. 807, 43 So. 252, 8 L. R. A., N. S., 480.)

Where a marriage is set up as having been performed at a particular time or place or by a particular ceremony and the evidence fails to support the assertion, the party asserting the marriage will not be allowed to rely on cohabitation and reputation to establish it. (Bowman v. Little, 101 Md. 273, 61 Atl, 223, 657, 1084; 38 C. J. 1325; 26 Cyc. 877.)

L. E. Glennon, for Respondents.

"The presumption in favor of marriage and the legitimacy of the children is one of the strongest known to the law, and in favor of a child asserting its legitimacy this presumption applies with peculiar force." (Teter v. Teter, 101 Ind. 129, 51 Am. Rep. 742; Franklin v. Lee, 30 Ind.App. 31, 62 N.E. 78; Ingersol v. McWillie, 9 Tex. Civ. App. 543, 30 S.W. 56; Shuman v. Shuman, 83 Wis. 250, 53 N.W. 455; Godfrey v. Rowland, 16 Hawaii 377; In re Matthews, 153 N.Y. 443, 47 N.E. 901.)

In the case of conflicting presumptions that in favor of legitimacy will prevail. (Vreeland v. Vreeland, 78 N.J. Eq. 256, 79 A. 336, 34 L. R. A., N. S., 940; Pickens' Estate, 163 Pa. 14, 29 A. 875, 25 L. R. A. 477.)

Where there is "a mutual assumption of marital rights, duties or obligations," in the words of C. S., sec. 4591, and the parties hold themselves out to the world as husband and wife and cohabit together as such, they are in fact and in law husband and wife and such conduct constitutes a perfectly valid marriage. (Hilton v. Stewart, 15 Idaho 150, 128 Am. St. 48, 96 P. 579; Huff v. Huff, 20 Idaho 450, 118 P. 1080; Smith v. Smith, 32 Idaho 478, 185 P. 67; Pittinger v. Pittinger, 28 Colo. 308, 89 Am. St. 193, 64 P. 195; Megginson v. Megginson, 21 Ore. 387, 28 P. 388, 14 L. R. A. 540; Klein v. Laudman, 29 Mo. 259; People v. Shaw, L. R. A. 1915E, 87, note; McKibben v. McKibben, 139 Cal. 448, 73 P. 143.)

"There is no presumption that one at the time of his second marriage has a legal wife living." (Lampkin v. Travellers Ins. Co., 11 Colo. App. 249, 52 P. 1040.)

"A second marriage during the life of the other spouse creates a presumption of a preceding valid divorce." (Lyon v. Lash, 79 Kan. 342, 99 P. 598; Shepherd v. Carter, 86 Kan. 125, 119 P. 533, 38 L. R. A., N. S., 568; In re Rash's Estate, 21 Mont. 170, 69 Am. St. 649, 53 P. 312.)

"The presumption as to the validity of a person's marriage during the lifetime of a former spouse is not overcome by proof that the party to both marriages has not obtained a divorce from the former spouse; and it must be proved that neither party to the first marriage has obtained a divorce." (Chancey v. Whinnery, 47 Okla. 272, 147 P. 1036; C. S., sec. 4597; In re Harrington's Estate, 140 Cal. 244, 98 Am. St. 51, 73 P. 1000.)

GIVENS, J. Budge and T. Bailey Lee, JJ., concur, Taylor, J., concurs in the conclusion.

OPINION

GIVENS, J.

Appellants as the sole surviving next of kin, filed their petition in the probate court for distribution of the estate of John Tormey, deceased. Thereafter Annie Crane Riley and Dennis Crane, respondents, commenced an action in the probate court alleging that they were half-sister and half-brother, respectively, of the deceased and therefore each entitled to a one-third interest in the residue of his estate. The probate court decided in favor of appellants. From such order determining heirship respondents appealed to the district court and the cause was tried upon the depositions, pleadings and files used in the probate court and some further depositions, the district court finding that respondents were half-sister and half-brother of deceased, and his heirs at law, and entitled to receive one-third, respectively, of the residue of the estate; from the judgment entered in accordance with such findings this appeal is taken.

The evidence upon which this case was tried consists wholly of depositions of the various witnesses and documentary exhibits and this court has before it exactly the same record as was before the district court, and has the same opportunity to judge of the truthfulness of the witnesses and the weight to be given all of the evidence as the trial court had; thus the rule requiring the affirmance of a decision based upon conflicting evidence does not apply. (Roby v. Roby, 10 Idaho 139, 77 P. 213; McKenzie v. Miller, 35 Idaho 354, 206 P. 505.)

The legitimacy of respondents is decisive of the case, which issue was sufficiently raised by the denials of the petition. (Sutherland's Code Pleading, vol. 1, sec. 457.)

It is conceded that Michael Tormey and Mary Brennan Tormey were lawfully husband and wife and the father and mother of deceased, and Mary Kline, mother of appellants. Respondents are the fruit of a union between Mary Brennan Tormey and Dennis Crane following either a common law or a ceremonial marriage celebrated in Hartford, Connecticut, in 1852. ( Budington v. Munson, 33 Conn. 481; Hammick v. Bronson, 5 Day 290; Travers v. Reinhardt, 205 U.S. 423, 27 S.Ct. 563, 51 L.Ed. 865; In re Fitzgibbons' Estate, 162 Mich. 416, 139 Am. St. 570, 127 N.W. 313; Walton v. Walton (Tex. Com. App.), 228 S.W. 921; Keezer, Marriage and Divorce, 2d ed., sec. 136.)

There is evidence to the effect that some time prior to 1852 Michael Tormey and Mary Brennan Tormey with their children the deceased and his sister, were living in Milford, Massachusetts, and there is evidence in conflict therewith that Mary Brennan Tormey's husband died in Ireland before she came...