In re Kiesel's Estate

• Decision Date: 21 September 1926
• Docket Number: 1282
• Citation: 249 P. 81,35 Wyo. 300
• Parties: IN RE KIESEL'S ESTATE [*] ; v. HENECKER ET AL KIESEL
• Court: Wyoming Supreme Court

249 P. 81

35 Wyo. 300

IN RE KIESEL'S ESTATE ^[*] ;

KIESEL v. HENECKER ET AL

No. 1282

Supreme Court of Wyoming

September 21, 1926

Rehearing Denied, without Opinion, February 8, 1927.

APPEAL from District Court, Fremont County; CYRUS O. BROWN, Judge.

Probate proceedings in the matter of the estate of Charles J. Kiesel deceased. Petition by Effie P. Kiesel, administratrix of the estate of Charles J. Kiesel, deceased, to have a homestead and other property set aside to her, opposed by W. R Henecker, guardian of the estate of Thelma Kiesel, a minor and another. From a judgment for defendants, claimant appeals.

Affirmed.

John J. Spriggs, for appellant.

Appellant was entitled to the exempt property of the estate: 6879, 6880 C. S.; In re Black's Estate, 216 P. 1059. There is a presumption of marriage from cohabitation, apparently not immoral; Keezer on Marriage and Divorce, 77-93; common law marriages grow out of good faith, supra; Clark v. Barney, 103 P. 599; 18 R. C. L. 45. An unlawful relation, by removal of impediments, may be followed by a legal marriage; 18 R. C. L. 39. Proof tending to fix liability, not denied by party having it within his power to do so, justifies inference of liability; Studebaker Corp. v. Hanson, 160 P. 336. To overcome presumption that ceremonial marriage, followed by fourteen years of cohabitation is legal, proof of former undissolved marriage of one of the parties must be conclusive; Sparks v. Ross, 65 A. 977; Hiler v. People, (Ill.) 41 N.E. 181; Lampkin v. Ins. Co., (Colo.) 52 P. 1040; Moore v. Moore, (Tenn.) 52 S.W. 778. The presumption of marriage of a man and woman, arising from cohabitation and repute, falls before proof of the subsequent marriage of the man to another woman during the lifetime of the former; Norman v. Goode, (Ga.) 38 S.E. 317; Pittinger v. Pittinger, (Colo.) 64 P. 195; Weening v. Temple, (Ind.) 41 N.E. 600; Goldwater v. Burnside, (Wash.) 60 P. 409. Marriage is the civil status of one man and one woman united by contract; State v. Bittick, (Mo.) 15 S.W. 325. There was no proof of common law marriage; Conter v. Smith, (Colo.) 222 P. 352; Becker v. Becker, (Wis.) 140 N.W. 1082; Schaeffer v. Richardson, (Md.) 93 A. 391. There was no evidence of cohabitation or repute as to the alleged Sebel marriage; Jones on Evidence, 370. The alleged divorce petition was incompetent as evidence; 10 R. C. L. 1104-07; In re Miller's Estate, 229 P. 850. The court erred in permitting counsel for respondents to introduce a mass of incompetent evidence.

A. H. Maxwell and William E. Hardin, for respondents.

There are 139 specifications of error urged in support of the appeal; we will discuss them in a general way; guardians of the minors believe that they established, by competent evidence, the marriage of petitioner before her marriage to Kiesel and that her husband lived, undivorced, at the time of the alleged marriage to Kiesel; this fact was established by petitioner's declarations and testimony of various witnesses; moreover, she did not establish a marriage to Kiesel; 8 Enc. Ev. 469. Petitioner's declarations were sufficient to establish her marriage to Sebel; Patterson v. Gaines, 47 U.S. 550; Gaines v. Hennen, 65 U.S. 553; Greenwalt v. McEnelley, 85 P. 352; In re Drinkhouse's Estate, 151 P. 294, 24 A. 1083; State v. Pendleton, 72 P. 527; 3 Wigmore 2813. As between conflicting presumptions, the one having the least probability to sustain it must yield; 18 R. C. L. 419; Turner v. Williams, (Mass.) 24 L. R. A. N. S. 1201; Neeley v. Ry. Co., (Ga.) 89 S.E. 325. If petitioner had been found to be the widow of Kiesel, the stepchildren would be entitled to one-half interest; Hayach v. Will, 169 Ill. 145; 29 C J 995. The verdict and judgment should be sustained.

BLUME, Justice. POTTER, C. J., and KIMBALL, J., concur.

OPINION

BLUME, Justice.

Charles J. Kiesel died intestate in Fremont County, Wyoming, on November 7, 1922. Effie P. Kiesel, hereinafter referred to as the petitioner, claiming to be the surviving widow of the deceased, was appointed administratrix of the estate on November 14, 1922. She duly qualified, filed inventories and on November 21, 1922, filed her second petition to set aside the homestead and all other property of the estate to her, alleging the value of all of said property to be $ 2200. No children were born to said Charles J. Kiesel and Effie P. Kiesel, but the former left surviving him two daughters, Thelma and Lucile, sixteen and twelve years old respectively at the time of the death of said deceased. Guardians were appointed for the two minors, who appeared and answered the petition of Effie P. Kiesel aforesaid, denying that the petitioner was the surviving widow of the deceased, on the ground, as disclosed upon the trial, that petitioner was, at the time of her marriage to the deceased, married to one Joseph Sebel, and for that reason was not qualified to marry the deceased. That claim was denied by petitioner. Upon demand, a jury was impaneled to try the case. A verdict was returned against the petitioner and in favor of said guardians. Judgment was duly entered upon the verdict, and from this judgment the petitioner has appealed.

139 errors are assigned herein. It is, of course, impossible, to mention, let alone discuss, them all. Some of them relate to proceedings in said estate prior to the filing of the petition herein, or not related thereto, and have nothing to do with this case, and are not before us for review. Others relate to immaterial matters, which could not possibly have any determinative effect herein. We have carefully gone over them all, but in order to confine this opinion within reasonable limits, we shall discuss only such of them as we think of sufficient importance to serve as a guidance in future cases.

1. The guardians took the depositions of Dr. Lowry and Mrs. Challen at Excelsior Springs, Missouri, on May 31, 1924. Notice of the taking of such depositions on that date and at said place was duly served upon counsel for petitioner on May 26, 1924. It is claimed that this notice gave insufficient time. Section 5839, W. C. S. 1920, provides that "the notice shall be served so as to allow the adverse party sufficient time exclusive of Sundays, the day of service, and one day of preparation, to travel by the usual routes and modes of conveyance to the place named in the notice." No Sunday intervened between the dates specified in the notice. Counsel argues that because a holiday intervened, that date should be excluded. But the statute does not exclude it. Counsel further argues that neither he nor his client could be compelled to travel at night, and hence the time given was insufficient. But nights are not excluded by the statute. The argument would have had weight in the days when travel was mainly by stage coach, but we do not think that it has any application at the present time. Further, there is nothing in the record to show that petitioner or her counsel would not have had sufficient time to reach the place of taking the depositions, excluding the time directed to be excluded by the statute, and in the absence of such showing, we have nothing before us to indicate that the time given was not ample. See 18 C. J. 668.

2. Counsel for the petitioner seems to take the position that the minor children had no right to appear in this proceeding and resist the claim of the petitioner. We can see no force in the argument. Sections 6879 and 6880, W. C. S. 1920, provide for the procedure under which a homestead and other property may be set aside to a widow of a decedent. A petition asking therefor must be filed, a notice must be given to all interested parties and a hearing must be had. The statute, accordingly, necessarily contemplates that the parties notified are entitled to be heard and to resist the claim made in the petition.

3. It is also assigned as error that the court submitted the case to the jury. Section 6740, W. C. S. 1920, which is a portion of the provisions relating to probate proceedings, provides in part as follows:

"If no jury is demanded, the court must try the issues joined. If, on written demand, a jury is called for by either party, one shall be had as in other civil cases," etc.

A jury was duly demanded in the case at bar in accordance with the foregoing provision. It has been held under a similar statute in California that no jury could be demanded as a matter of right in connection with the settlement of accounts. Estate of Moore, 72 Cal. 335; 13 P. 880; Estate of Sanderson, 74 Cal. 199, 15 P. 753. But in Estate of Sheid, 122 Cal. 528, 55 P. 328, it was held that the issue of heirship was properly submitted to a jury. In re Baird's Estate, 173 Cal. 617, 160 P. 1078, the question was discussed at length, and the court held that the issues of fact in a case for partial distribution of an estate were properly submitted to the jury. The case at bar is, in principle, similar to the two cases last cited, and we do not think that the court committed any error in granting the demand for a jury.

4. A number of assignments of error are, in effect, directed at the point that the evidence in the case was insufficient to warrant the jury in finding against petitioner. That is, as we view it, the most important point in the case. The evidence tends to show the following facts: Petitioner was married to one W. H. Eickemeyer at Quincy, Illinois, in the year 1904 or 1905, and was divorced from him by a decree of the Circuit Court of Winnebago County, Illinois, on March 18, 1914, the decree providing that the parties should not remarry within a year. She had been separated from her husband since at least the year 1912, and from that year on to and including part of 1920, she was in Kansas City, Missouri, at least a considerable...