In re Foley's Estate

• Decision Date: 10 November 1924
• Docket Number: 10829.
• Citation: 230 P. 618,76 Colo. 286
• Parties: In re FOLEY'S ESTATE. v. GAVIN. FOLEY
• Court: Colorado Supreme Court

230 P. 618

76 Colo. 286

In re FOLEY'S ESTATE.

FOLEY v. GAVIN.

No. 10829.

Supreme Court of Colorado, En Banc.

November 10, 1924

Rehearing Denied Dec. 1, 1924.

Error to District Court, Pueblo County; Samuel D. Trimble, Judge.

Petition by Lillian Foley to be appointed administratrix of the estate of Timothy H. Foley, deceased and for removal of Austin Gavin as administrator. From a judgment against her, petitioner brings error.

Affirmed.

N. Walter Dixon, of Denver, and John H. Voorhees of Pueblo, for plaintiff in error.

M. G Saunders and E. F. Chambers, both of Pueblo, for defendant in error.

DENISON J.

The plaintiff in error petitioned the county court of Pueblo county to be appointed administratrix of the estate of Timothy H. Foley, and for the removal of Austin Gavin defendant in error, as such administrator. She claimed to be his widow. On trial it was determined she was not. She appealed to the district court with the same result, and brings the case here for review.

Defendant in error claims that the petition does not state sufficient facts because it does not sufficiently state the marriage. We think it states more than necessary. Marriage is an ultimate fact, and no allegation of detail, except time and place, is necessary or proper.

Plaintiff in error relies upon an alleged express oral contract, said to have been made in August, 1909, between her and the deceased, which is evidenced by the testimony of Stella Forbes, her sister, William Forbes, her brother-in-law, and Edith Williams, her sister, that on Labor Day, 1909, Foley with the plaintiff in error, then called Mrs. Kniffen, Mrs. Williams, and Mr. and Mrs. Forbes, were at the Forbes residence. Mrs. Kniffen, Mrs. Williams, and Mrs. Forbes were in the kitchen; Foley and Forbes in the front room. Mrs. Forbes was complaining of Mrs. Kniffen that she was living in the same building in Pueblo with Mr. Foley. Foley came from the front room to the kitchen door and said: 'Mrs. Forbes and Mrs. Williams, I want you to understand that Mrs. Kniffen and I have agreed to live together as man and wife, and we don't care what the family thinks.' Mrs. Kniffen said: 'Yes; I hope you are satisfied now.' Forbes came to the door, and Foley turned round and asked him: 'What do you think about it, Will?' Forbes said: 'That is not any more than I thought.' The matter was discussed upon the question how the situation should be explained. Foley said that for business reasons they preferred to keep their respective names; that she should go by the name of Mrs. Kniffen just the same. Mrs. Forbes asked how they would explain it to friends, but Foley said it didn't make any difference.

Foley and Mrs. Kniffen previous to this time had been living in a block belonging to Foley in Pueblo, she with her son 12 years old in one end of the block, and he in the other; the rest of the block being empty. Shortly after this Foley moved into her room, and they cohabited together from that time until his death in 1922, she under the name of Kniffen. During that time there is evidence that she denied that her name was Mrs. Foley; that she denied her marriage, and stated that Foley was not married; that she signed deeds and other papers by the name Kniffen. Foley died January 2, 1922. The present administrator, his half-brother, was appointed January 6th. She made no movement till January 18th, when she applied for letters. During this delay she was sworn as a witness in another case, and then testified that her name was Lillian Kniffen. It was also shown that Foley made similar statements, and returned his income tax schedule under oath as a single man, though marriage would have saved him a considerable sum.

The plaintiff in error makes the following points: (1) That declarations of Foley denying that he was married and conduct consistent therewith subsequent to the alleged marriage were erroneously admitted in evidence; (2) that evidence oral and documentary that the petitioner during her alleged coverture was known by the name of Lillian Kniffen and transacted all of her business in that name was erroneously admitted; and (3) that the evidence was conclusive in her favor.

As to the first point, the claim is made that such declarations are competent only if the complainant has relied upon reputation to prove the marriage, and are incompetent where the sole reliance is upon direct evidence of an express contract. He cites Hill v. Hill's Adm'r, 32 Pa. 511; Hull v. Rawls, 27 Miss. 471, 473; Thompson v. Nims, 83 Wis. 261, 53 N.W. 502, 17 L.R.A. 847; Hulett v. Carey, 66 Minn. 327, 69 N.W. 31, 34 L.R.A. 384, 61 Am.St.Rep. 419; Estate of James, 124 Cal. 653, 57 P. 578, 1008. But we agree rather with Drawdy v. Hesters, 130 Ga. 161, 60 S.E. 451, 15 L.R.A. (N. S.) 190, 193; Topper v. Perry, 197 Mo. 531, 95 S.W. 203, 114 Am.St.Rep. 777; Imboden v. St. Louis Trust Co., 111 Mo.App. 220, 86 S.W. 263; Crauford v. Blackburn, 17 Md. 49, 77 Am.Dec. 323; Barnum v. Barnum, 42 Md. 251, permitting such evidence, and other cases cited in plaintiff in error's own brief to the effect that such evidence is of light weight, conceding its competency.

In the present case, however, defendant does not rely solely upon direct evidence of an express marriage contract. She proved at length and in...