In re Gallagher's Estate
| Decision Date | 23 January 1950 |
| Docket Number | 31031. |
| Citation | 213 P.2d 621,35 Wn.2d 512 |
| Court | Washington Supreme Court |
| Parties | In re GALLAGHER'S ESTATE. v. CRENEANS. PERRET |
Department 1
Proceeding in the matter of the estate of Lawrence J. Gallagher deceased, wherein Jeannette Gallagher filed objections to final report of Jewel Perret, administratrix, claiming to be the lawful surviving wife of decedent.
The Superior Court for King County, Donald A. McDonald, J., found that there was a common-law marriage in Michigan and the administratrix appealed.
The Supreme Court, Schwellenbach, J., held that there was a valid common-law marriage in Michigan which continued until the death of decedent so that the award in lieu of homestead to Jeannette Gallagher as his widow was proper.
Judgment affirmed.
Wright Booth & Beresford, Seattle, for appellant.
Frank L. Murphy, Sacramento, Skeel, McKelvy, Henke, Evenson & Uhlmann, Seattle, for respondent.
This is an appeal from an order setting aside the assets of decedent's estate to his widow in lieu of homestead.
Lawrence J. Gallagher died intestate November 26, 1944, leaving property in King county. His sister, Jewel Perret, was appointed and qualified as administratrix of the estate. In her final report Mrs. Perret showed the assets to be valued at $3,488.85. As his survivors and heirs, she listed herself, another sister and two nieces. She also alleged that Jeannette Zian Cremeans claimed to be the widow of decedent, by virtue of a purported marriage with him; that such purported marriage was illegal because her brother did not have mental capacity to enter into the marriage, and Jeannette Cremeans did not have legal capacity because of a prior marriage which, at the time of the purported marriage to decedent, had not been dissolved.
Jeannette Gallagher filed objections to the final report, claiming to be the lawful surviving wife of decedent by virtue of her marriage to him on October 26, 1925; and that, if such marriage were found to be invalid, then by virtue of a common-law marriage under the laws of the State of Michigan.
The trial court found Jeannette Gallagher to be decedent's widow, as the result of a common-law marriage in Michigan, and awarded the property to her.
On July 5, 1921, Garrett Oriol Cremeans and Jeannette LaVerne were married in San Francisco, California. He was a Marine. They lived together seventy-two hours and then separated. From that time on neither saw nor heard from the other. She testified that at the time of the separation, he promised to get a divorce. By deposition he denied making such a promise.
At any rate, she moved to Seattle in September, 1924, and met Gallagher the following year. They were married in King county on October 26, 1925. They remained in Seattle for a few weeks and then went to Milwaukee, where they met his family. From there they went to Chicago, where he was employed as a ship's officer on the Great Lakes. The latter part of 1926 they moved to Detroit, Michigan, where they lived until January, 1932, when they went to Sacramento, California. Mr. Gallagher was drowned at sea November 26, 1944, while serving as a captain in the merchant marine during World War II.
From the time of the marriage on October 26, 1925, until his death, they were recognized and lived together as husband and wife. They were so accepted by his parents, his uncle and his sister. Their landlord, their friends and acquaintances and the Veterans' Administration, recognized them as such. Because of his health, which will be discussed later in this opinion, he worked only three or four months out of a year, and it was necessary for Mrs. Gallagher to work throughout their married life, in order to keep up the household expenses. They never lived together in a meretricious relationship, but always in good faith as husband and wife.
On January 14, 1929, Cremeans, by virtue of a summons by publication, obtained a divorce in Canton, Ohio, from Jeannette. She knew nothing of these proceedings, knowledge of which was ascertained by Mrs. Perret in connection with the present controversy.
Citation of authority is not necessary in order to hold that the Washington ceremonial marriage of October 26, 1925 was invalid. Jeannette then had a husband living, from whom she had not been divorced.
We are therefore confronted with the problem of whether or not there was a common-law marriage in Michigan. Although this state does not recognize common-law marriages, if originally contracted and consummated in this state, we have sustained the validity of such marriages which have been contracted and consummated in other states where they were lawful under the lex loci contractus. Willey v. Willey, 22 Wash. 115, 60 P. 145, 79 Am.St.Rep. 923.
A common-law marriage is a marriage without formal solemnization. However, there must be an actual and mutual agreement to enter into a matrimonial relation, between parties capable in law of making such a contract, consummated by their assumption openly of marital duties and obligations. Merely living together, even as husband and wife, is not sufficient. Any inpediment which would prevent a statutory marriage or one by religious ceremony bars a common-law marriage. See 55 C.J.S., Marriage, p. 818, § 6.
Such marriages are recognized in the State of Michigan. Walsh v. Ferguson, 249 Mich. 539, 229 N.W. 424; Ryan v. Randall, 252 Mich. 501, 233 N.W. 394; Hess v. Pettigrew, 261 Mich. 618, 247 N.W. 90, 91. The facts in the latter case are quite similar to the one at bar. There, the defendant was ceremonially married to one Howe in Scotland. After a couple of years they separated and the defendant moved to Michigan, where she entered into a marriage ceremony with the plaintiff in 1919. In 1931 the plaintiff commenced a suit for annulment, contending that the marriage entered into between the parties was void because the defendant then had a husband living, from whom she had not been divorced. Howe had obtained a divorce from defendant in Scotland in 1922 on substituted service. Neither the plaintiff nor defendant knew of the divorce until the day the annulment suit was filed. No ceremony or agreement of marriage in words occurred after the Howe divorce. The Michigan court held that after the divorce the parties were competent to and did contract a commonlaw marriage, saying:
So, in the case at bar, on January 14, 1929, when Cremeans obtained the divorce, the impediment to the marriage between Lawrence and Jeannette Gallagher was removed. The consent and taking manifested by the former ceremony, coupled with continued cohabitation thereunder, operated as a present taking, and they thereupon entered into a common-law marriage, unless Lawrence Gallagher was not then mentally competent to enter into such a contract. The cases of Blodgett v. Blodgett, 109 Wash. 597, 187 P. 340, and State ex rel. Smith v. Superior Court for King County, 23 Wash.2d 357, 161 P.2d 188, are clearly distinguishable on their facts.
With reference to Gallagher's mental competency to enter into a common-law marriage, the record shows that prior to his discharge as a lieutenant in the United States Navy on September 23, 1921, he received an injury in Japan which affected him mentally. The family history showed no physical or mental weakness in any of its members. He was interned in the Western State Hospital at Steilacoom by the Veterans' Administration, and later transferred to American Lake, where he remained until June, 1925, when he was released on order of the Veterans' Administration. He was not committed under court order and, after his release, he was never in any mental institution or hospital. However, on March 8, 1924, his sister, Jewel Perret, was appointed in King county as the guardian of his person and estate. Although she never was discharged as guardian, she did, in 1929, turn over to him a diamond ring valued at $1,000.00 and an Adjusted Service Certificate in the amount of $1,577.00, for which he receipted. Mrs. Gallagher, at the time of the marriage ceremony in 1925, knew nothing of the guardianship or of his having been in American Lake.
On April 12, 1927, Gallagher was examined by a physician of the Veterans' Administration in Chicago. Although his attitude, manners, and evasiveness suggested psychopathic conduct, he was found to be competent, with no neuropsychiatric condition.
He was again...
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