In re Imboden's Estate
Decision Date | 17 December 1908 |
Parties | In re IMBODEN'S ESTATE. IMBODEN v. UNION TRUST CO. |
Court | Missouri Court of Appeals |
Appeal from St. Louis Circuit Court; Daniel G. Taylor, Judge.
In the matter of the estate of Luther Imboden, deceased. From a judgment affirming a disallowance by Union Trust Company, executor, of the claim of Lillie Pierce Imboden as widow of the deceased, she appeals. Affirmed.
Luther Imboden being dead, and having by will appointed the defendant trust company executor of his estate, plaintiff, on July 3, 1903, filed in the probate court of the city of St. Louis her petition for an allowance out of the estate in lieu of one year's provision not on hand at the death of Imboden, claiming to be his widow. Judgment was against the petitioner in the probate court, and she appealed to the circuit court, where she again failed to establish her widowhood, and the cause was appealed to this court, where the judgment of the circuit court was reversed, and the cause remanded for new trial. Imboden v. Trust Company, 111 Mo. App. 220, 86 S. W. 263. The cause was again tried in the circuit court, and the jury found plaintiff was not the widow of Imboden, and she again appealed to this court.
It was admitted at the threshold of the trial that if plaintiff is the widow of Imboden she is entitled, under the statutes of this state, to an allowance of $400 in cash against the estate. Plaintiff, to establish her widowhood, relied upon evidence of a common-law marriage entered into between herself and Imboden in the year 1898. Her father testified, in substance, as follows: Witness further stated that Imboden said he and Lillie entered into the contract of marriage on July 27, 1898.
Plaintiff's evidence tends to show that, from a short time after Imboden was introduced to plaintiff, he was a constant visitor at her father's house where she resided; that he took a great many meals there after July, 1898, until the day of his death — June 15, 1903 — had a key to the front door of the residence, spent a great deal of his time there, and remained there over many nights, and on divers occasions was seen in plaintiff's room; that he furnished the groceries for the family, was very attentive toward plaintiff, and manifested great love for her; called her pet names, gave her a wedding ring, and other jewelry; spoke of and to her as his wife in restaurants, in the city of St. Louis, and in other public places; took her to French Lick Springs, and there registered himself and her as man and wife, under the assumed name of L. Pierce; took her to Hot Springs, and there introduced her to an old acquaintance as his wife; that he frequently presided at the table in plaintiff's home, and, as some of the witnesses put it, "acted as the man of the house." But there is no evidence showing, or tending to show, they gained the reputation of man and wife in the neighborhood where plaintiff lived.
Imboden was a widower and had an only child, who was about 13 years of age at the time he became acquainted with plaintiff. He had and maintained a residence at No. 4596 Garfield avenue, in the city of St. Louis (quite a distance from plaintiff's residence), where he made his home from the date of his acquaintance with plaintiff until the day of his death. His daughter testified: A number of Imboden's intimate friends testified to conversations they had with him at different periods after July, 1898, in respect to his status as a married man. Their evidence is that when the subject was mentioned, Imboden would speak of his daughter, saying he had been both father and mother to her; that he had no one else to provide for, and had no intention of ever marrying again; that the memory of his dead wife seemed to be very dear and sacred to him, and he would speak of her in the most reverent and sacred terms, and said he was "too old to think of marrying again." A chambermaid at the Hurst Hotel Junior testified that Imboden and plaintiff for four or five years from 1898, came to the hotel on an average of once or twice a week and stayed several hours in a room together. Over the objection of plaintiff, defendant offered evidence tending to prove that the moral character of people who visited the Hurst Hotel during the period from 1898 to 1903 was bad; also, over plaintiff's objection, defendant introduced evidence tending to show that the character of the hotel was bad. Mrs. Mary Lambert testified that a short time after Imboden's death she saw plaintiff and had a conversation with her about Imboden's death; that plaintiff said she was very much grieved because she had not been remembered in his will, that she could make no claim, as she had no proof; also that plaintiff had told her she was engaged to Imboden. Mrs. L. M. Fields testified that some time in July, 1903, plaintiff said to her: Mrs. Rosa Burk testified that she was housekeeper for Imboden, and he was taken sick on the 24th or 25th of July, 1898, and continued sick for 12 or 15 days and did not leave the house for about two weeks; that Dr. C. Kerley attended him during his illness. George H. Wagner, a druggist, identified two prescriptions for medicine written by...
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