In re McLaughlin's Estate

• Decision Date: 11 July 1892
• Citation: 30 P. 651,4 Wash. 570
• Court: Washington Supreme Court
• Parties: IN RE MCLAUGHLIN'S ESTATE.

30 P. 651

4 Wash. 570

IN RE MCLAUGHLIN'S ESTATE.

Supreme Court of Washington

July 11, 1892

Appeal from superior court, King county; I. J. LICHTENBERG, Judge.

Application by Norman F. Hesseltine, plaintiff, and Ruth A. McLaughlin defendant, for appointment as administrator of the estate of Hiram C. McLaughlin, deceased. From a judgment in favor of defendant, plaintiff appeals. Reversed.

Norman F. Hesseltine and John G. Barnes for appellant.

Trusten P. Dyer and Thompson, Edsen & Humphries, for respondent.

SCOTT J.

On the 12th day of December, 1891, Hiram C. McLaughlin died intestate at La Grande, in the state of Oregon. He was a citizen of this state, residing at Seattle, and left personal property to the amount of about $5,000 in King county. He had a daughter over 21 years old, whose mother is not now living, and this daughter claims to be the only heir. One Ruth A. McLaughlin, with whom he was living at the time of his death, claims to be his wife by a marriage under the common law. She was married to Hiram C. McLaughlin on the 13th day of August, 1887, by a judge of probate, at Tacoma, in this state. At that time she had another husband living, by the name of Van Every. There was some testimony to show that at the time she was married to McLauglin she believed Van Every was dead. She continued to live with McLaughlin as his wife until July, 1890, at which time she received information that her first husband was still living; whereupon she and McLaughlin separated, and divorce proceedings were instituted by her against Van Every, wherein she obtained a divorce from him in January, 1891; whereupon she and McLaughlin resumed their former relations, although no marriage ceremony was ever performed between them subsequent to the time she obtained a divorce from Van Every. There is testimony to show that she and McLaughlin continued to live together as husband and wife up to the time of his death; that they held themselves out to the public as husband and wife, and believed themselves to be such, and believed no marriage ceremony was required to render the marriage valid. There was some testimony to contradict this state of affairs, and to show they did not regard themselves as husband and wife. It appears that at one time, while they were living together prior to her obtaining the divorce from Van Every, she left McLaughlin, and was gone some time, and he had no knowledge of her whereabouts for some weeks; that he subsequently found her at Tacoma, and instituted criminal proceedings against her for some purpose, which the evidence does not make clear. These difficulties seem to have been adjusted, however, and the parties resumed their former relationship up to the time the proof shows that she discovered Van Every was still living. Upon the death of McLaughlin, Norman F. Hesseltine, the appellant, who was holding a power of attorney from Bertha McLaughlin, authorizing him to represent her in the settlement of the estate, petitioned the superior court of King county for letters of administration. Said Ruth A. McLaughlin also petitioned said court, as the widow of said Hiram C. McLaughlin, for the appointment of one Frank A. Pontius as administrator. On the 15th day of January, 1892, said court appointed one John Fairfield, special administrator. On the 4th day of February following said court found upon a trial of the rights of the parties that said Ruth A. McLaughlin was the widow of deceased, as she claimed, and was entitled to have letters of administration issue to the person whom she had requested to have appointed in her petition, and a decree was entered, granting her petition. From this finding and decree an appeal was taken to this court, the said John Fairfield continuing as such administrator pending the appeal.

Several questions are presented by the appellant, one of which is that there can be no such thing as a common-law marriage in this state; that under our statutory regulations a marriage ceremony must be performed in one of the ways pointed out by the statute in order to render a marriage valid. Another one is that the proof is entirely insufficient to establish the marriage relationship between said parties, even though they could become husband and wife by a mere agreement between themselves as at the common law, according to some holdings. Under the view we have taken of the first point raised, we do not find it necessary to pass upon the sufficiency of the evidence, as, after a careful consideration of all the authorities we have been able to find upon this subject, we have come to the conclusion that the first point made by the appellant is well taken. We find this to be the case with some hesitancy, for the greater number of adjudicated cases in this country hold the parties may contract the marriage relationship by an agreement between themselves. In most of the states the statutory provisions upon the subject of marriage have been held directory only, and where there was no express provision in the statutes declaring all marriages void, other than those contracted in some one of the ways provided by the statute, that the parties could become husband and wife by a mutual agreement. Mr. Bishop lays down the doctrine very strongly that, unless such a marriage is absolutely prohibited by the express language of the statute it should be sustained, and that evidence of cohabitation, and of the parties holding themselves out to the public as husband and wife, should be sufficient to establish the relation in all cases. In Hutchins v. Kimmell, 31 Mich. 126, COOLEY, J., in rendering the opinion of the court, says: "Whatever the form of ceremony, or even if all ceremony was dispensed with, if the parties agreed presently to take each other for husband and wife, and from that time lived together professedly in that relation, proof of these facts would be sufficient to constitute proof of a marriage binding upon the parties, and which would subject them and others to legal penalties for a disregard of its obligations. This has become the settled doctrine of the American courts, the few cases of dissent or apparent dissent being borne down by a great weight of authority in favor of the rule as we have stated it." In Meister v. Moore, 96 U.S. 78, Mr. Justice STRONG, in delivering the opinion of the court, said: "Marriage is everywhere regarded as a civil contract. Statutes in many of the states, it is true, regulate the mode of entering into the contract, but they do not confer the right. Hence they are not within the principle that where a statute creates a right, and provides a remedy for its enforcement, the remedy is exclusive. No doubt a statute may take away a common-law right; but there is always a presumption that the legislature has no such intention, unless it be plainly expressed. A statute may declare that no marriages shall be valid unless they are solemnized in a prescribed manner, but such an enactment is a very different thing from a law requiring all marriages to be entered into in the presence of a magistrate or a clergyman, or that it be preceded by a license, or publication of banns, or be attested by witnesses. Such formal provisions may be construed as merely directory, instead of being treated as destructive of a common-law right to form the marriage relation by words of present assent. *** In many of the states enactments exist very similar to the Michigan statute; but their object has manifestly been, not to declare what shall be requisite to the validity of a marriage, but to provide a legitimate mode of solemnizing it. They speak of the celebration of its rite rather than of its validity, and they address themselves principally to the functionaries they authorize to perform the ceremony. In most cases the leading purpose is to secure a registration of marriages, and evidence by which marriages may be proved; for example, by certificate of a clergyman or magistrate, or by an exemplification of the registry. In a small number of the states, it must be admitted, such statutes have been construed as denying validity to marriages not formed according to the statutory directions. Notably has this been so in North Carolina and in Tennessee, where the statute of North Carolina was in force. But the statute contained a provision declaring null and void all marriages solemnized as directed, without a license first had. So, in Massachusetts, it was early decided that a statute very like the Michigan statute rendered illegal a marriage which would have been good at common law, but which was not entered into in the manner directed by the written law. *** In Parton v. Hervey, 1 Gray, 119, where the question was whether a marriage of a girl only thirteen years old, married without parental consent, was a valid marriage, (the statute prohibiting clergymen and magistrates from solemnizing marriages of females under eighteen, without the consent of parents or guardians,) the court held it good and binding, notwithstanding the statute. *** As before remarked, the statutes are held merely directory, because marriage is a thing of common right, because it is the policy of the state to encourage it, and because, as has sometimes been said, any other construction would compel holding illegitimate the offspring of many parents conscious of no violation of law." The learned judge, however, said: "It is unnecessary, however, to pursue this line of thought. If there has been a construction given to the statute by the supreme court of Michigan, that construction must, in this case, be controlling with us. And we think the meaning and effect of the statute has been declared by that court in the case of Hutchins v. Kimmell, 31 Mich. 126, a case decided on the 13th of January, 1875. There, it is true, the...