In re Estate of Frederick
| Decision Date | 19 July 1894 |
| Docket Number | 8908 |
| Citation | 59 N.W. 1013,58 Minn. 268 |
| Parties | In re Frederick Terry's Estate |
| Court | Minnesota Supreme Court |
Argued July 5, 1894
Appeal by John H. White, administrator, from an order of the District Court of Ramsey County, Chas. D. Kerr, J., made February 7, 1894, denying his motion for a new trial.
Frederick Terry died intestate February 27, 1892, at St. Paul. Letters of administration of his estate were granted to John W White. He collected and disposed of the personal property paid the debts, funeral expenses, and taxes on the real estate, and presented his account and asked for its approval and a final decree of distribution. A day was appointed and notice published. At the final hearing May 29, 1893, Ellen Balderson appeared and claimed to be the wife of the deceased and prayed the court to assign the property to her as his sole heir under Laws 1889, ch. 46, § 64. Her claim to be the widow of deceased was disputed by his next of kin and decided against her by the Probate Court, and the real and personal estate of deceased was on June 6, 1893, adjudged to his two brothers and three sisters in equal shares. From this decree she appealed to the District Court of Ramsey County. There an issue of fact was tried before a jury, who returned a verdict that she was the wife of Frederick Terry at the time of his death. Findings were made in accordance with this verdict and judgment ordered. The administrator moved the court to set aside the verdict and grant a new trial. Being denied he appeals.
The order appealed from should be reversed.
Briggs & Countryman and John W. White, for appellant.
There is no evidence from which the jury were justified in finding that any agreement of present marriage was ever entered into by Frederick Terry and the respondent. How can a presumption be entertained to establish a marriage which the very party who invokes the presumption has deliberately repudiated and denied? Respondent comes into court saying, "I don't believe I was Terry's wife, but I want the jury to listen to these three or four witnesses who heard him call me his wife, and I invoke the presumption arising therefrom that I was his wife, under a contract which I never knew of or believed in myself." Cross v. Cross, 55 Mich 280; Port v. Port, 70 Ill. 484; Harbeck v. Harbeck 102 N.Y. 714.
The law presumes that where the relation between a man and woman was meretricious in its inception, they had no desire to change it, and that it continued to be of the same illicit character to the end. Particularly is this true where there existed no legal impediment to marriage. This presumption must be overcome by strong and satisfactory evidence. State v. Worthingham, 23 Minn. 528; Fagan v. Fagan, 57 Hun, 592; Floyd v. Calvert, 53 Miss. 37; Cartwright v. McGown, 121 Ill. 388; Arnold v. Cheesebrough, 46 F. 700, 58 F. 833; Tholey's Appeal, 93 Pa. St. 36; Clark v. Cassidy, 64 Ga. 662.
The presumption that the connection between the parties continued to be illicit holds until that presumption is overcome by distinct proof of marriage. Barnum v. Barnum, 42 Md. 251; Hunt's Appeal, 86 Pa. St. 294; Breadlabane Case, L. R. 1 H. L. Sc. 182; Goldbeck v. Goldbeck, 18 N.J.Eq. 42; Reading Fire Ins. Co., Appeal of, 113 Pa. St. 204; Spencer v. Pollock, 83 Wis. 215; Williams v. Williams, 46 Wis. 464; Oddfellows Ben. Assoc. v. Carpenter, 17 R. I. 720.
Again it is well settled by all the authorities that a conflicting, uncertain or divided reputation is not sufficient to warrant the inference that marriage had taken place. The relation must be undisputed, at all times and in all places openly admitted by both parties. Clayton v. Wardell, 4 N.Y. 230; Brinkley v. Brinkley, 50 N.Y. 184; Rose v. Clark, 8 Paige, 573; Bicking's Appeal, 2 Brewst. 202; Appeal of Reading Fire Ins. & T. Co., 113 Pa. St. 204; Yardley's Estate, 75 Pa. St. 207; Arnold v. Chesebrough, 58 F. 833; Powers v. Charmbury, 35 La. An. 630; Hubblethwaite v. Hepworth, 98 Ill. 126.
Stevens, O'Brien, Cole & Albrecht, for respondent, after an extended discussion of the evidence, said:
There is absolutely no evidence that anyone who was in the slightest degree familiar with Terry's mode of living regarded the parties as anything else than husband and wife. There is no divided reputation in this case. Everybody who knew that the parties were living together regarded them as husband and wife, not as man and mistress. Everybody, so far as the evidence shows, to whom Terry had occasion to speak of or about respondent, says that he spoke of her as his wife.
Appellant claims that as the relations of the parties were unlawful in their inception there was no evidence of a change in these relations which warranted the jury in finding the parties were married. Respondent was, by 1878 G. S. ch. 73, § 8, estopped to testify whether at or about the time she commenced to live with Terry any agreement existed between Terry and herself as to their occupying the relation of man and wife, so that it was placing the matter before the jury in, to say the least, a most unfavorable light to say that the relations were meretricious in the inception. But even if the origin was unlawful, it rests exclusively with the jury in the exercise of its judgment, under proper instructions from the court, to say whether or not there was such a change in the relations as showed an agreement to be thereafter husband and wife. State v. Worthingham, 23 Minn. 528.
The verdict is not manifestly and palpably against the weight of the evidence. Nor is there "no evidence reasonably tending to sustain the verdict," and while we believe that the great preponderance of the testimony sustains the verdict, nevertheless we invoke the rule so often stated, that in such a case the verdict will not be disturbed. Ohlson v. Manderfeld, 28 Minn. 390.
Frederick Terry resided in St. Paul many years and until the time of his death, in 1892. He died intestate. Letters of administration were taken out on his estate, and matters proceeded until the time for hearing on the final account and ordering the distribution of the estate, when the respondent appeared, and claimed to be the widow of the deceased, which was denied by the next of kin, and found against her by the Probate Court. Thereupon she appealed to the District Court, and on a trial there before a jury, the jury found that at the time of his death she was the wife of said deceased, and this is an appeal from an order denying a motion for a new trial.
The principal point urged by appellant is that there is not sufficient evidence to sustain the verdict.
It appears by the evidence that the deceased never was married, unless it was to respondent.
In May, 1885, the respondent, then known as Ellen Balderson, lived in some rooms in St. Paul, and worked in a shirt factory. She seems to have been acquainted with the keeper of a restaurant, who sent her word one evening to call at the restaurant, which she did about 7 o'clock in the evening, and was shown up into a private dining room, where she met and was introduced to the deceased, drank wine, and had supper with him there, and went home late to her rooms. Shortly after, illicit intercourse commenced between them, and for six months she continued her work at the shirt factory, and he visited her at her rooms, and contributed somewhat to her support. The deceased owned a house, which was for rent, and one White was his agent to rent it and collect the rents. Terry sent her to White to rent this house of him, and gave her the money to pay the rent. She rented it, ceased to work in the shirt factory, and went there to live. Terry gave her the money to pay the rent. She paid it to White, and he paid it back again to Terry, never knowing that Terry was in this way paying and receiving rent for his own house, or that he was living there himself. White always knew respondent as Ella Balderson, and gave her receipts for the rent every month in that name. Matters ran along this way for two or three years, when White's clerk had an altercation with Miss Balderson on account of her failure to pay the rent promptly, and Terry then informed White that he would collect the rent himself. Respondent lived in this house about five years, when Terry sold the house, and she moved to another house, which he rented for her, and she lived there until the time of his death.
Respondent testifies that during all of this time since she first moved into Terry's house he lived there with her, and there is no evidence in the case showing that during this time he lived anywhere else. She admits that he went on a visit occasionally to see his relatives; that he never brought any of his friends or acquaintances to the house; that some of his brothers and sisters were frequently in St. Paul and at Ft. Snelling, but that she never saw any of them, and, except as hereinafter stated, he or she never had any callers or visitors at the house, and he never took her out in public. He broke his leg about four years before his death, and she nursed him, and she also nursed him during his last sickness and he died in the house where she lived. This is proved by the testimony of several witnesses. One witness -- a physician who attended both of them at such residence -- testified that he did not know her as Mrs. Terry until 1885. Another witness -- a dentist -- testified that in the fall of 1885 Terry requested him to do some work on his wife's teeth, and the woman who came was respondent. Another witness testified that she lived in the same block, and used to wash and do other work for Terry and respondent at their house, and often heard him refer to her as his wife. Another witness...
To continue reading
Request your trial