In re McCausland's Estate
| Decision Date | 02 January 1906 |
| Docket Number | 147 |
| Citation | 213 Pa. 189,62 A. 780 |
| Parties | McCausland's Estate |
| Court | Pennsylvania Supreme Court |
Argued October 10, 1905
Appeal, No. 147, Oct. T., 1905, by Jane B. Stuart, from decree of O.C. Westmoreland Co., Aug T., 1904, No. 63 distributing Estate of Anna McCausland, deceased. Affirmed.
Appeal from distribution of estate. Before STEEL, P.J. The facts are stated in the opinion of the Supreme Court.
Error assigned was the decree of the court.
V. E Williams, with him A. M. Sloan and W. F. Wegley, for appellant. -- The legitimacy of the claimant is to be determined by the law of Pennsylvania, and not by the law of Colorado: Smith v. Derr, 34 Pa. 126.
Adoption by Jacob W. McCausland, or legitimation by act of the legislature, cannot enable the claimant to take as a purchaser, under a limitation in the last will of Ann McCausland: Edwards' App., 108 Pa. 283; Schafer v. Eneu, 54 Pa. 304.
The claimant is not the legitimate son of Jacob W. McCausland, begotten or born in lawful wedlock: Thomas v. Thomas, 124 Pa. 746; Heffner v. Heffner, 23 Pa. 104; Dennison v. Page, 29 Pa. 420; Kleinert v. Ehlers, 38 Pa. 439; Janes' Estate, 147 Pa. 527; Goodright v. Moss, 2 Cowper, 591; King v. Inhabitants of Kea, 11 East, 132; Tioga County v. South Creek Twp., 75 Pa. 433.
The relation between claimant's mother and Jacob W. McCausland being admittedly illicit in its inception, a subsequent marriage will not be presumed in the absence of proof of an actual marriage: Reading Fire Ins. & Trust Co's. App., 113 Pa. 204; Grimm's Est., 131 Pa. 199; Hunt's App., 86 Pa. 294; Com. v. Stump, 53 Pa. 132; Hantz v. Sealy, 6 Binney, 405.
W. S. Byers, with him J. A. C. Ruffner, for appellee. -- If there was a marriage, actual or reputed, between the ward's parents, either prior or subsequent to his birth, valid and legal in the state of Colorado, the place of their domicile, he is legitimate: Taylor v. Taylor, 10 Colo.App. 303 (50 Pac. Repr. 1049); Yardley's Estate, 75 Pa. 207; Com. v. Stump, 53 Pa. 132.
No formal ceremony of marriage, in facie ecclesiae is necessary to consummate the contract of marriage: Israel v. Arthur, 18 Colo. 158 (32 Pac. Repr. 68); Poole v. The People, 24 Colo. 510 (52 Pac. Repr. 1025); Henry v. McNealey, 24 Colo. 456 (50 Pac. Repr. 37); Lampkin v. Insurance Co., 11 Colo.App. 249 (52 Pac. Repr. 1040).
Under the circumstances, even if the marriage were originally void, a subsequent marriage would be presumed to have occurred after the removal of all legal impediments: In re Edwards, 58 Iowa 431 (10 N.W. 793); Poole v. The People, 24 Colo. 510 (52 Pac. Repr. 1025).
The presumptions of law arising in the case at bar are sufficient to establish the legitimacy of the claimant without direct proof of the actual marriage of his parents: Senser v. Bower, 1 P. & W. 450; Vincent's App., 60 Pa. 228; Oliver's Estate, 184 Pa. 306.
In all countries where marriage is a civil contract, the courts, in favor of a second marriage, will often presume the death of a prior husband or wife, when not heard from for a much less period then seven years and will also presume a previous divorce in order to sustain the second marriage.
The presumption in favor of innocence and against immorality and vice is so strong, as to give rise to the presumption of marriage: Rex v. Inhabitants of Twyning, 2 B. & Ald. 386; Kelly v. Drew, 94 Mass. 107; Harris v. Harris, 8 Ill.App. 57; Commonwealth v. Boyer, 89 Mass. 306; Greenborough v. Underhill, 12 Vt. 604; Johnson v. Johnson, 114 Ill. 611 (3 N.E. Repr. 232); McCarty v. McCarty, 2 Strob. 6.
Before MITCHELL, C.J., FELL, BROWN, MESTREZAT, POTTER, ELKIN and STEWART, JJ.
This is an appeal from the decree of distribution in the estate of Anna McCausland, deceased. By the seventh clause of her will she devised to her daughter, Jane B. Stuart, the appellant, and to her son, Jacob W. McCausland, the rents, issues and profits issuing from her real estate in Greensburg and provided that, "if either one survive the other then during the lifetime of the one surviving one half to him or her and the other half to the child or children of the one deceased." Jacob W. McCausland, the son, died on January 18, 1903, and one-half of the fund in the hands of the accountant is now claimed by The Safe Deposit and Trust Company of Greensburg, Pennsylvania, guardian of Jacob Welty McCausland, found by the court below to have been the legitimate son of Jacob W. McCausland, the son of the testatrix. The legitimacy of the ward of the appellee is the single question before us.
The court below having found the boy to be the legitimate son and only child of Jacob W. McCausland, deceased, awarded his guardian one-half of the fund brought before it for distribution. We are not asked by any of the assignments to say that error was committed in receiving the testimony of witnesses, upon which the court's findings were based, but it is urged that from this testimony there ought to have been a finding that the ward of the appellee was not the legitimate child of the son of the testatrix, and, therefore, not entitled to a portion of her estate under the seventh clause of her will.
Elizabeth McCausland, the mother of Jacob Welty McCausland, found by the court below to have been the lawful wife of Jacob W McCausland, the son of testatrix, was the daughter of John and Sarah M. Evans, and prior to March 26, 1882, had lived with her mother at Hannibal, Missouri. On that day, when she was about twenty-five years of age, she was married to one John E. Rodgers, and lived with him until some time in the year 1884. The findings of the court below are, that during this period Rodgers frequently told her she was not his wife, as they had not been legally married, because the man who performed the ceremony was not an alderman or justice of the peace; that on August 3, 1885, she saw him at the Union Depot, in the city of Denver, for the last time, since which date he has never been heard of by any one connected with or interested in this case; that she then went to Hannibal, Missouri, on a visit to her mother, and, returning in about a month, took up her residence, in September, 1885, with Jacob W. McCausland, the deceased son of the testatrix; that she and he lived together continuously until his death, January 18, 1903; that she gave birth to a son, the ward of the appellee, on March 4, 1887; that this child was called Jacob Welty McCausland, and was recognized by Jacob W. McCausland, deceased, as his son; that about six weeks after the birth of the child she and the said Jacob W. McCausland agreed with each other to become husband and wife and to live together in that relation until parted by death; that they did continue to live together as husband and wife, she performing all the duties of a wife to him and of a mother to the boy; that Jacob W....
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