In re Estate of Wittick

• Decision Date: 17 March 1914
• Citation: In re Estate of Wittick, 164 Iowa 485, 145 N.W. 913 (Iowa 1914)
• Parties: In the Matter of the Estate of Otto W. Wittick, deceased. v. EMILIE ENGLE WITTICK, Appellee ADOLPH J. WITTICK, GUSTAVE A. WITTICK, CARL HERMAN WITTICK and WILHELMINE OPFERKUP, Appellants,
• Court: Iowa Supreme Court

145 N.W. 913

164 Iowa 485

In the Matter of the Estate of Otto W. Wittick, deceased.

ADOLPH J. WITTICK, GUSTAVE A. WITTICK, CARL HERMAN WITTICK and WILHELMINE OPFERKUP, Appellants, v. EMILIE ENGLE WITTICK, Appellee

Supreme Court of Iowa, Des Moines

March 17, 1914

Appeal from Hancock District Court.--HON. C. H. KELLY, Judge.

PROCEEDING to establish rights in an estate under a common-law marriage with decedent. From judgment in favor of the defendant finding that she is the widow, the plaintiffs appeal.

Affirmed.

Senneff Bliss & Witwer, and Williams & Clark, for appellants.

Sol Levisohn, and John Hammill, for appellee.

WITHROW J. LADD, C. J., and DEEMER and GAYNOR, JJ., concur.

OPINION

WITHROW, J.

I.

Otto W. Wittick having died intestate in October, 1911, a resident of Hancock county, application for the appointment of an administrator of his estate was made by Emilie Wittick, who claimed to be his widow, and, waiving her right to act, she requested the appointment of another, which was done. Following this, an application to set aside the appointment was made by Adolph J. Wittick, a brother of the decedent, alleging that Emilie Wittick was not the widow of Otto W. Wittick, that she was his first cousin, that a pretended marriage ceremony between the parties was performed in Illinois, but that under the laws of that state, which prohibited the marriage of first cousins, the marriage was void; and that at the time of such ceremony the laws of Iowa made a like prohibition. Based upon these averments, he asked to be appointed administrator of the estate of his brother. Emilie Wittick, as we shall hereafter speak of her in this opinion, appeared in resistance to the motion, averring that she and Otto W. Wittick lived together as husband and wife, commencing the latter part of March, 1909; that such was generally known; that the decedent from that time and up to his death held out to the world that they were husband and wife; and that she became the common-law wife of Otto W. Wittick in March, 1909. Following this resistance, she made application for one year's support from the estate, as widow, to which objection was made by the brothers and sister of the decedent upon the grounds presented in their motion to set aside the appointment of administrator. Trial was had upon the issues thus raised, and judgment was entered finding Emilie Wittick to be the widow of Otto W. Wittick, deceased, and granting to her an allowance from the estate for her support. From such finding and judgment this appeal is brought by the brothers and sister of decedent.

II. Before going to the facts, we give attention to the law as determining the right upon which the claim of the appellee must rest. The fact that the parties were first cousins is not disputed. Upon the trial it was conceded that the statute of Illinois, at the time the marriage ceremony was performed in that state, which was in September, 1909, prohibited the marriage of first cousins and declared marriages entered into in violation of such provision to be void. In Iowa a like statute went into effect on July 4, 1909, but prior to that date marriages in this state within that degree of relationship had not been prohibited. It therefore must be held that no rights were acquired by the appellee under the Illinois ceremony, and also that no rights could arise under a common-law marriage in Iowa between cousins, unless such was entered into prior to July 4, 1909, and supported by facts as to such relation prior to that time as are necessary to meet the degree of proof required to establish such a status. Drummond v. Irish, 52 Iowa 41, 2 N.W. 622. The single question which is left for consideration is whether, as claimed by the appellee, a common-law marriage contract was entered into in Iowa between herself and Otto W. Wittick in 1909, prior to the time that the marriage of first cousins was prohibited by the law of this state.

III. Emilie Engle Wittick, the appellee, was at the time of the trial about thirty-one years of age. She came to the United States when she was eighteen years of age, and about four years later was married to her first husband, Charles Engle, in New York City. Four years later he died, and she returned to her old home in Germany for a visit. Later, on her return to this country, upon the suggestion of her brothers, a correspondence was opened between herself and Otto W. Wittick. He was at the time a resident of Waterloo, in this state, and unmarried, having been divorced from a former wife, and it is satisfactorily shown by the competent evidence that she came to Waterloo at the request of Wittick, and with the expectation upon the part of both that they would be married. After her arrival in Waterloo with her little son by the former marriage, she became the housekeeper for Otto W. Wittick, this being in October, 1908, and continued in that relation until the spring of 1909, when they removed to Steamboat Rock, Iowa where he purchased a butcher shop, and entered upon that business, and their residence at that place was continued until late September of that year, when the business was sold by him. At the time the appellee came from New York at the request of Wittick, he was addicted to the use of intoxicating liquor, and while they resided in Waterloo he went away to take the cure at some institute, and returned about March 1, 1909.

Evidence was offered and introduced over the objections of the appellant as to conversations had between the parties both before leaving and after his return to Waterloo from his treatment, the effect of which was to show that while she came west expecting to marry him, upon discovering his habits she declined to do so unless he showed reformation; and that upon his return, with the renewed request to enter upon the marriage relation, she still declined, until after about three weeks had passed and he seemed to have conquered his habit, when she consented to so do. This evidence, and much of like purport, being of conversations between herself and Wittick, at the time of the trial deceased, was objected to as being incompetent under section 4604 of the Code. As a reason for receiving it counsel for appellee urges that the testimony comes within the exception of the statute which provides that the prohibition shall not extend to any transaction or communication as to which the opposite party shall be examined in his own behalf. That exception but opens the way for proving an entire conversation or transaction when a part of it has been proven by the opposite party, or when the proof of such party as to the particular conversation or transaction is such in effect as to disclose the transaction in whole or in part, and subject it in its entirely to investigation and proof. Much of the testimony objected to in this case was of conversations between the appellee and Wittick, as to which no other witness had testified, and we think it comes clearly within the rule of the statute, and is incompetent as proving an agreement, but is in part admissible as proof of her intent and the circumstances under which their relations commenced. This question had consideration In re Boyington's Estate, 157 Iowa 467, 137 N.W. 949, decided by this court, where the question of a common-law marriage was being considered, and in which the following language was used: "No doubt as a witness he (the appellant) would have been incompetent to testify to any transactions or communications with the deceased amounting to a mutual agreement to marry, but he was not incompetent to testify as to his own purposes and intentions and the circumstances under which their cohabitation was begun and continued." During the residence of the parties at Waterloo there is shown by the record no public declaration by either of them that they were married, although they occupied the same room, and as to each other maintained that relation. It was while residing there that the appellant claims the agreement was made between them that from that time on they should be as married, and that when they were able to go to the church of her choice, the German Apostolic, there being none at Waterloo or at Steamboat Rock, where they afterwards went to reside, the formal ceremony should be performed.

She also testified, and this we think was competent as bearing upon her intent, that from that time on she considered herself to be his wife, and that the formal ceremony should be performed when they could go to the proper church. While much of this testimony is incompetent as being of conversations with the deceased, that to which we have just referred, with other evidence, sheds light upon the intent with which she entered upon and sustained the relations with Wittick which are...