In re Fitzgibbons' Estate

• Decision Date: 14 July 1910
• Citation: 162 Mich. 416,127 N.W. 313
• Parties: In re FITZGIBBONS' ESTATE.
• Court: Michigan Supreme Court

162 Mich. 416

127 N.W. 313

In re FITZGIBBONS' ESTATE.

Supreme Court of Michigan.

July 14, 1910.

Error to Circuit Court, Ionia County; Frank D. M. Davis, judge.

Judicial settlement of the estate of William Fitzgibbons, deceased. From a judgment which determined that Sarah Jane Fitzgibbons was the lawful widow of deceased, certain of his heirs bring error. Affirmed.

Argued before BIRD, C. J., and OSTRANDER, HOOKER, MOORE, McALVAY, BROOKE, BLAIR, and STONE, JJ. A. A. and H. A. Ellis, for appellants, petitioning heirs.

R. A. Hawley, for appellee, Jennie Fitzgibbons.

BROOKE, J.

The writ of error in this case is prosecuted by certain heirs of William Fitzgibbons, deceased, for the purpose of reviewing a judgment of the circuit court, by which it was determined that Sarah Jane Fitzgibbons is the lawful widow of deceased, and as such, entitled to participate in his estate.

Certain facts appear in the record, about which there is no dispute. William Fitzgibbons, deceased, was married to Armenia Allen, at New Haven, Oswego county, New York, in the year 1868. After the marriage, he and his wife lived at North Volney, New York, until 1876, during which time, two children, Grace and William, Jr., were born to them. The family then removed to Galt, Canada, where a third child, Ella, was born. When the youngest child, Ella, was about two years old, in 1878, deceased sent his wife, Armenia, and the three children, back to New York state, and himself came to Michigan. From 1878 to June 20, 1881, deceased was in correspondence with his wife, Armenia. In 1880, he had settled in Saranac, Ionia county, this state, and there boarded with a family named Stewart. Deceased shortly began paying court to a daughter, Sarah Jane (appellee), who was then about 19 years of age. On February 14, 1881, he took her to Grand Rapids and there went through a marriage ceremony with her, after which they returned to Saranac and commenced to live together as husband and wife, and had so held themselves out to the world, and had lived together as husband and wife. Their home remained in Saranac during the balance of his life, though he was absent at times on business. Appellee bore to deceased one child, a daughter, Madeline, born February 6, 1891. From 1881 to 1900, deceased had no correspondence with his family in New York, so far as the record discloses. In the latter year, his son, William, went to Saranac and discovered himself to his father. Deceased took his son to his home for dinner and supper and held a long conference with him, in which he told his son that he was in Armenia's power, that he did not want to be punished for bigamy, and that when he, the son, needed help, to let him know. Thereafter, and up to the month of his death (November 13, 1904) he paid various small sums to his son, which were devoted to the care of Armenia, who died September 3, 1903. It is apparent that deceased was not aware of the death of his wife, because he sent his son $20 but a few days before his own death. During the 23 years appellee and deceased lived in Saranac, they were reputed to be husband and wife; they received and were received socially, moving among the best people of the vicinity. Deceased seems to have acquired the respect and confidence of the community, holding the office of postmaster at Saranac for seven or eight years preceding his death. Prior to her marriage with deceased, appellee heard that deceased was a married man. Upon inquiry, deceased denied the fact of his prior marriage. Again in 1891, shortly after the birth of he daughter, appellee was told by Mary Fitzgibbons, a sister-in-law of deceased, of the former marriage, and that there were three children. Appellee then made further inquiry of deceased whereupon, she testifies, he admitted his former marriage, but claimed to have a divorce. She makes the claim that she implicitly relied upon the statements made to her by deceased, both before the marriage ceremony and later, when she taxed him with his bad faith. She states that in spite of the rumors which reached her ears she went through the entire 23 years of her association with deceased in absolute ignorance of the existence of his wife, and in good faith believing herself to be his lawful wife. She swears that she had no knowledge of the death of Armenia, in 1903, because she never knew of Armenia's existence, and that after Armenia's death, no new contract was made between herself and her husband, their relations continuing after that event (of which deceased also was ignorant) in reliance upon the ceremonial marriage, contracted in 1881.

Under the facts above disclosed, the court submitted to the jury the question of whether or not appellee was the legal widow of deceased, making the determination of the jury, upon that point, rest solely upon the good faith of appellee in entering into the contract and in continuing to live with deceased thereunder, up to the time of his death, using the following language: ‘It is question of belief. She must have been informed to that degree the burden is upon her to establish she was acting in good faith after the other side have once established there was a former wife living at the time of the marriage. Then the burden shifts to Jennie and it is incumbent upon her to show by a preponderance of evidence she acted in good faith; that is, she believed William Fitzgibbons was her lawful husband and there was no impediment to the marriage between her and William Fitzgibbons, if she honestly believed that, taking into consideration all that was said and told her in the discussion she had with her husband, if she was convinced from what he said, and other sources, these rumors were false and untrue and she was laboring under the honest belief she was his lawful wife, that she had the legal right to marry him and he to marry her at the time it was done, she would be considered innocent, and the law would consider her the legal wife and widow of the deceased becaue of the inference that they had a common-law marriage after the death of the first wife, provided she was innocent all the way along.’ The legitimacy of Madeline was made to depend upon the finding of the jury as to her mother's legal status. The jury, apparently with much difficulty, found that appellee was the legal widow of deceased and that Madeline was his legitimate daughter.

Comp. Laws, § 8589, provides: ‘Marriage, so far as its validity in law is concerned, is a civil contract, to which the consent of parties capable in law of contracting, is essential.’ Section 8616 provides: ‘All marriages which are prohibited by law, on account of consanguinity or affinity between the parties, or on account of either of them having a former wife or husband then living, * * * shall, if solemnized within this state, be absolutely void, without any decree of divorce or other legal process.’

It being conceded upon this record that the marriage between deceased and Armenia Allen, in 1868, was a valid union and that Armenia was alive and undivorced in 1881, when the contract between deceased and appellee was entered into, it is clear that the later marriage was absolutely void, and, during the life of Armenia, afforded no protection to appellee. At no time prior to Armenia's death, was deceased legally competent to give his assent to a union with appellee. His relations with appellee during those 22 years were meretricious and known to him to be such, for on June 20, 1881, four months after the ceremony was performed between him and appellee, he wrote his wife, Armenia, acknowledging the receipt of a letter from her, and promising to return to her as soon as possible. On Sept. 3, 1903, Armenia died. Then, for the first time, it became possible for deceased and appellee to intermarry. Did they in fact do so?

It is apparent from the record that during the last year of the life of deceased (following the death of his wife) he treated appellee in all overt respects as a husband should treat his wife. He addressed numerous letters to her as his wife, and subscribed them as her husband, and during that year he lived at their home with her for several months, during which time the relations of husband and wife seem to have been sustained, so far as was apparent to the world. His conduct, however, during this period was not different in any respect from his conduct during the preceding 22 years, when he knew his relations with her were adulterous. Under these circumstances, it is claimed by the appellee and, in effect, so charged by the court, that, assuming the good faith of the appellee in entering into the void contract and continuing to live under it, a marriage should be presumed as soon as the impediment was removed. These facts and circumstances, if uncontradicted and unexplained, might support the inference that a new and valid contract was entered into upon the death of Armenia, but such inference is impossible, if negatived by positive evidence.

Schouler's Domestic Relations (5th Ed.) § 15, defines marriage as follows: ‘To constitute a perfect union, the contracting parties should be two persons of the opposite sexes, without disqualification of blood or condition, both mentally competent and physically fit to discharge the duties of the relation, neither of them being bound by a previous nuptial tie, neither of them witholding a free consent.’ And further, at section 26, Id.: ‘A union once originating between man and woman, purely illicit in its character, and voluntarily so, there must appear some formal and explicit agreement between the parties thereto, or a marriage ceremony, or some open or visible change in their habits and relations, pointing to honest intentions, before their alliance can be regarded as converted into either a formal or informal marriage. Nor is the issue between informal marriage and illicit intercourse to be concluded by the conduct of the pair towards society. They may for convenience, or...