In re Sloan's Estate

• Decision Date: 16 July 1908
• Court: Washington Supreme Court
• Parties: In re SLOAN'S ESTATE. v. WEST et al. SLOAN

96 P. 684

50 Wash. 86

In re SLOAN'S ESTATE.

SLOAN v. WEST et al.

Supreme Court of Washington

July 16, 1908

Appeal from Superior Court, King County; A. W. Frater, Judge.

Petition by Samuel Sloan against D. W. West, as administrator of Mary Sloan, deceased, and others, claiming that certain property sought to be distributed as community property is the sole property of petitioner, and should be distributed to him on the ground that he was never legally married to deceased. From a judgment of nonsuit, petitioner appeals. Reversed and remanded.

Frank A. Steele, Walter B. Beals, and Hastings & Stedman, for appellant.

W. E Humphrey, James M. Gephart, and Charles E. Patterson, for respondents.

RUDKIN, J.

Samuel Sloan and Alice Babcock, sometimes known as Elsie Babkirk intermarried in Albert county, N. B., about the year 1852 and remained husband and wife until the marriage was dissolved by decree of the superior court of Kitsap county on the 14th day of April, 1902, at the suit of the husband. The parties to this marriage lived together in New Brunswick as husband and wife for some years after the consummation of the marriage, and then separated. In the year 1868 the husband came to Washington Territory, and has resided in the territory and state ever since. In the year 1873 he returned to New Brunswick, and there married one Mary Steves early in the year 1874, while his former wife was still living and undivorced. Immediately after this marriage he returned to Washington Territory with Mary Sloan or Mary Steves, and the parties continued to live together here as husband and wife from that time until the death of the latter on the 6th day of February, 1899. On the 19th day of April, 1902, D. W West, a son-in-law of Mary Steves, petitioned the superior court of King county for letters of administration on her estate as the deceased wife of Samuel Sloan, and Samuel Sloan joined in the petition. The prayer of the petition was granted and the administration proceeded until the 31st day of January, 1905, at which time a final account of the administration was rendered, and a petition for distribution filed. The petition for distribution prayed that one half the residue of the estate be distributed to Samuel Sloan as surviving husband, and the other half to certain children of Mary Steves by a former husband and to the representatives of certain deceased children. At this juncture Samuel Sloan filed his petition in the estate matter, setting forth his marriage with Alice Babcock long prior to his marriage with Mary Steves; that his former marriage was not dissolved until long after the death of Mary Steves; that Mary Steves knew at all times that the petitioner had a lawful wife living; that it was agreed between the petitioner and Mary Steves that a fair proportion of all property earned or acquired by them should be given to her as her separate estate; that this agreement was carried out, and that Mary Steves received for her own use and benefit one-half of all property acquired by them in this state; that the petitioner was absent in Alaska when Mary Steves died, and that on his return to this state her son-in-law represented to him that it would be necessary to take out letters of administration on her estate in order to perfect title to the remaining property in the petitioner; that certain false and fraudulent representations were made; that the property sought to be distributed is the sole and separate property of the petitioner and should be distributed to him, etc. The allegations of this petition were put in issue by answers filed by the administrator and the heirs at law of Mary Steves, deceased, and a trial was had. At the close of the petitioner's case, the court granted a motion for nonsuit; and, from the judgment of nonsuit, this appeal is prosecuted.

The existence of the marriage between the appellant and Alice Babcock is controverted, but that marriage is established by clear and cogent proof. The fact that the parties were married about the date specified, in the presence of witnesses, by a Baptist minister authorized by the laws of the Province of New Brunswick to soleminize marriage, and that they thereafter lived together as husband and wife for some years, was testified to by both of the contracting parties, and by several disinterested witnesses, and was in no wise contradicted or controverted. 'The presumption of marriage, from a cohabitation, apparently matrimonial, is one of the strongest presumptions known to the law. This is especially true in a case involving legitimacy. The law presumes morality, and not immorality; marriage, and not concubinage; legitimacy, and not bastardy. Where there is enough to create a foundation for the presumption of marriage, it can be repelled only by the most cogent and satisfactory evidence.' Hynes v. McDermott, 91 N.Y. 451, 43 Am. Rep. 677. We are not unmindful of the fact that the presumption which ordinarily attaches to the first marriage is now transferred to the second, and that stronger proof of the validity of the first marriage is required than if the second did not exist. The presumption which attaches to the second marriage, however, only overcomes a presumption of marriage arising from reputation and...