In re Tilton's Estate

• Decision Date: 15 November 1935
• Docket Number: 29375.
• Citation: 263 N.W. 217,129 Neb. 872
• Parties: IN RE TILTON'S ESTATE. v. TILTON ET AL. DODD
• Court: Nebraska Supreme Court

263 N.W. 217

129 Neb. 872

IN RE TILTON'S ESTATE.

DODD v. TILTON ET AL.

No. 29375.

Supreme Court of Nebraska.

November 15, 1935

Syllabus by the Court.

1.The right of heirship of a daughter is not res judicata by a judgment entered upon a dismissal and disclaimer filed by her mother.

2.The rule is that a party to an action adverse to the representative of a deceased person who disclaims all interest in the subject-matter of the action and is thereby estopped from asserting any claim thereto, is a competent witness.

3.Formerly, a man and woman, contractual capables, holding forth to the community by conduct, demeanor, and habits, that they had agreed to be husband and wife constituted a common-law marriage.

4.The agreement between parties which established a common-law marriage is not a communication between husband and wife concerning which they are prohibited from testifying.

5.The unexplained and continuous absence of a person from home for seven years raises the presumption of death.

Appeal from District Court, Cherry County; Meyer, Judge.

Proceedings in the matter of the estate of Harvey Tilton, deceased wherein Opal Dodd filed petition of intervention to establish heirship, opposed by Henry Tilton and others.From an adverse judgment, the opponents appeal.

Affirmed.

Will Heelan, of Valentine, and E. D. & F. A. Crites, of Chadron for appellants.

W. B. Quigley, of Valentine, and J. J. Harrington, of O'Neill, for appellee.

Heard before GOSS, C. J., and ROSE, GOOD, EBERLY, DAY, PAINE, and CARTER, JJ.

DAY Justice.

In the probate proceedings relating to the estate of Harvey Tilton, Opal Dodd filed a petition of intervention to establish heirship.After a judgment in the county court, an appeal was taken to the district court.Upon a trial to a jury, a verdict was returned finding that Opal Dodd was the daughter and only heir of deceased.Thereupon, an appeal was perfected to this court.

This proceeding had its inception in the filing of a petition by Sarah L. Tilton and Opal Dodd, alleging that Sarah L. Tilton was the widow of the deceased and that Opal Dodd was their only child.At a former trial of this case in the district court, an objection was made to the competency of Sarah L. Tilton, as the surviving spouse, to testify as a witness.At that time Sarah L. Tilton dismissed her petition as follows: " Now comes the intervener, Sarah L. Tilton, widow of Harvey Tilton, deceased, and does hereby release, relinquish and forever disclaims any and all right, title, interest, claim or share in the estate of the deceased; and now for herself and herself only dismisses and moves the court to dismiss this action as to her with prejudice to a further action and at her cost."Thereafter, on the motion of Opal Dodd, a juror was withdrawn and the case continued.

The appellants urge that this dismissal by Sarah L. Tilton and judgment thereon entered in the case are res judicata and conclusive upon her copetitioner, Opal Dodd, in all the issues raised in their joint pleading, and especially of the issue that Sarah L. Tilton was the common-law wife of Harvey Tilton, deceased, and that Opal Dodd was the legitimate daughter of Tilton.As to Sarah L. Tilton, the judgment entered upon the dismissal was res judicata as to all the issues pleaded.But the issue of paternity of Opal Dodd was not adjudicated thereby.It would be unthinkable that the legitimacy of a daughter could be determined by her mother disclaiming any interest in an estate.The right of heirship of a daughter is not res judicata by a judgment entered upon a dismissal and dis claimer filed by her mother, where the allegation of the petition is that the mother is the common-law wife of the deceased.There was no adjudication as to the marriage, or the parentage of Opal Dodd.The judgment operated as an estoppel against Sarah L. Tilton to prosecute her claim as widow of the deceased.Opal Dodd was a stranger to that judgment and was not affected by the judgment of dismissal.

Sarah L. Tilton was then produced as a witness for Opal Dodd.Objection was made to her testimony upon the theory that she claimed to be the wife of the deceased and was incompetent under sections 20-1201, 20-1202, and 20-1204, Comp. St. 1929.This objection represents a change in position from the immediate preceding contention that the matter of the marriage was res judicata, and that there was a judgment that Sarah L. Tilton was not the surviving widow of deceased.

Section 20-1202, Comp. St. 1929, provides: " No person having a direct legal interest in the result of any civil action or proceeding, when the adverse party is the representative of a deceased person, shall be permitted to testify to any transaction or conversation had between the deceased person and the witness."Assuming for the time that this is an action against the representative of a deceased person, this statute does not render Sarah L. Tilton incompetent as a witness.The rule is that a party to an action adverse to the representative of a deceased person, who disclaims all interest in the subject-matter of the action and is thereby estopped from asserting any claim thereto, is a competent witness.Brooks v. Brooks,105 Neb. 235, 180 N.W. 41.In a recent opinion, Oft v. Ohrt,128 Neb. 848, 260 N.W. 571, this court discussed the effect and limitation of this statute.Its reasoning is applicable here and is controlling on this question.

Section 20-1201, Comp. St. 1929, renders incompetent to testify any " husband and wife, concerning any communication made by one to the other during the marriage, whether called as a witness while that relation subsists or afterward."Section 20-1204, Comp. St. 1929, forbids a husband and wife to testify against each other except in special cases.But it is generally recognized that the state is an interested party to the marriage relationship, and anything which tends to establish the marriage status is not within the meaning of communications between husband and wife.A common-law marriage is alleged to have existed between Sarah L. Tilton and Harvey Tilton.

A common-law marriage is not now valid in Nebraska.Collins v. Hoag & Rollins,122 Neb. 805, 241 N.W. 766.But in 1896 when it is alleged that the marriage of Sarah L. Tilton and Harvey Tilton was consummated, a contract made in good faith by mutual agreement to take...