In re Matteote's Estate

• Decision Date: 06 July 1915
• Docket Number: 8219.
• Court: Colorado Supreme Court
• Parties: In re MATTEOTE'S ESTATE. v. MATTEOTE et al. MATTEOTE

151 P. 448

59 Colo. 566

In re MATTEOTE'S ESTATE.

MATTEOTE v. MATTEOTE et al.

No. 8219.

Supreme Court of Colorado

July 6, 1915

Error to San Miguel County Court; M. L. Brown, Judge.

Application by Batista Cassietto for the probate of the will of Baptist Matteote, deceased. Upon a decree allowing probate, and dismissing the proceedings in administration of the widow Victoria Matteote, she brings error. Reversed.

Carl J Sigfrid, of Ouray, for plaintiff in error.

Allen &amp Woy, of Telluride, and H. R. Kaus, of Denver, for defendant in error.

SCOTT J.

Baptist Matteote and his wife, Mary O. B. Matteote, were married on the 3d day of December, 1900. They lived together as husband and wife until November 16, 1906, when they entered into a written separation agreement and proceeded to live separate and apart. Baptist obtained a decree of divorce from his wife July 19, 1907. On September 7th of the same year the parties were reunited, and from that time lived together as husband and wife until March 4, 1913, when Baptist died; but there was no formal marriage ceremony performed at the time of their reunion or afterward.

Baptist executed a will on April 30, 1907, following the separation and agreement, in which he devised all his property to certain of his relatives residing in Italy. In this instrument he recites that he bequeaths nothing to his wife because of the settlement contained in the separation agreement. He appointed Batista Cassietto, then of San Miguel county, as executor. Later, and before the death of Baptist, Cassietto removed to Italy. Upon the death of Baptist, Mary filed her petition for letters of administration upon the estate, declaring that Matteote died interest, and claiming her right to be appointed administratrix as his widow, under the provisions of the statute. The probate court denied this petition, but upon appeal to the district court an order was entered directing her appointment, which was accordingly done.

It appears that Cassietto, who was named as executor, was in possession of the will, and later sent it to the county court, and counsel for the legatees presented it for probate. The court sustained the validity of the will and dismissed the proceedings in administration. The administratrix, as protestant of the will, and as administratrix, brings the case here for review.

The contentions of the plaintiff in error are:

'(1) Mary O. B. Matteote was the wife of Baptist Matteote at the time of his death, by reason of a common-law marriage, and is therefore now his widow.

'(2) The remarriage or new marriage of the parties revoked the prior will.

'(3) The said remarriage or new marriage wiped the separation agreement out of existence as completely as if it had never been made, and necessarily the divorce.'

Matteote and his wife lived together as husband and wife after their first marriage for a period of 6 years, when there was a separation by mutual agreement. The separation covered a period of about 8 months, when they became reunited and lived together as husband and wife until the death of Matteote, or for a period of about 4 1/2 years. Letters were introduced in evidence, written by Baptist to his wife, covering a period of years after they were reunited, and prior to his death, and during times of temporary absence, which exhibit uniform and kindly consideration and affection. These invariably are addressed to Mrs. Matteote as 'Dear Wife,' or 'Dearest Wife,' and signed as 'Your affectionate husband, Baptist M.' The following letter, written at a time when they were taking up a new place of residence, affords an insight into their life during this period:

'Placerville, Apr. 27, 1911.

'Dearest Wife: Finally, between me and Matt Allen, we succeeded in taking lease and bond on a property where we will start to work not later than the 1st of the month. Have to buy two lots in this town here, too, as with the time I will possibly let build a house. Right now I could not find a house to rent. I rented only two rooms for a while. We will have to make the best of it, the best we can. Included with this you will find check for $50, which will serve you for what you need on your trip, and try to come as soon as possible, as I am tired to be alone. Regarding the diamond, if you could exchange it for a good pair of diamond earrings of about $200 value and get $50 or $100 over, I would advise you to do so, but be careful not to get robbed in the transaction. Beyond that I can only salute you dearly, and, with the hope to hold you in my arms the soonest possible, believe me your affectionate husband,

'Baptist M.'

The testimony of neighbors and acquaintances is uniform and undisputed that the parties lived together and were universally recognized as husband and wife, after the adjustment of their differences. The...