Johnson v. Johnson's Adm'r

• Decision Date: 31 March 1860
• Citation: 30 Mo. 72
• Parties: JOHNSON, Respondent, v. JOHNSON'S ADMINISTRATOR, et al., Appellants.
• Court: Missouri Supreme Court

30 Mo. 72

JOHNSON, Respondent,

v.JOHNSON'S ADMINISTRATOR, et al., Appellants.

Supreme Court of Missouri.

March Term, 1860.

1. Among the savage tribes of North American Indians marriage is merely a natural contract, and neither law, custom nor religion has affixed any conditions, limitations or forms other than those which nature herself has prescribed.

2. Permanency is not to be regarded as an essential element of marriage by the law of nature; otherwise all such connections as have taken place among the various tribes of the North American Indians--either between persons of pure Indian blood, or between half breeds, or between the white and Indian races-- must be regarded as illicit and the offspring illegitimate; for it is well established that in most of the tribes, perhaps in all, the understanding of the parties is that the husband may dissolve the contract at his pleasure. The power of divorce in one or both of the parties to a contract of marriage, at his or her pleasure, is not inconsistent with the law of nature.

3. A mere casual commerce between the sexes does not constitute a marriage by the law of nature; but where there is a cohabitation by consent, for an indefinite period of time, for the procreation and bringing up of children, that, in the state of nature, would be a marriage.

4. It is well settled, as a general proposition, that a marriage, valid according to the law or custom of the place where it it is contracted, is valid everywhere.

5. Where the legitimacy of children is called in question, especially after their death, and after a great lapse of time, every reasonable presumption should be indulged in in favor of legitimacy; very slight circumstances are sufficient to authorize a court or jury to find the existence of a marriage.

6. By the statute law of this state “the issue of all marriages deemed null in law, or dissolved by divorce, shall be legitimate;” (R. C. 1845, 1855, tit. Descents and Distributions;) hence, upon an issue of legitimacy, the inquiry is limited to the mere fact of a marriage de facto, and in this investigation the jury are bound to make every intendment in favor of the legitimacy of the children not necessarily excluded by the proof.

7. Where a white man, living in the Indian country, introduced an Indian woman into his family, cohabited with her and became the father of children by her, assumed and discharged parental duties toward those children, provided liberally for their education, introduced them into his household upon his subsequent marriage with another woman, secured their recognition in the social circle in which he moved, and their marriage as his daughters, made liberal provision for them in his will, and solemnly recognized them as his children in that instrument--no question being made as to their legitimacy during the life of the father-- held, that all these circumstances constituted presumptive evidence of a marriage with the Indian woman, when its existence was questioned nearly fifty years after it is alleged to have taken place, when two of the children were dead leaving heirs, and the father also died without leaving any other children. Held, further, that the fact, that after cohabiting with the Indian for years, the white man separated from her and sent her back to her tribe, could have no tendency to overthrow the presumption of a marriage arising from the previous cohabitation and other circumstances, if such separation and sending away were consistent with the usages among the Indians, not only in reference to their own marriages, but to intermarriages with the traders who sojourned with them. It is a right conceded to the husband by the terms of the contract, and its exercise can not therefore be regarded as inconsistent with it.

Appeal from St. Louis Land Court.

This case has heretofore been before the supreme court and is reported in 23 Mo. 561. This was a suit instituted by Lucy Johnson, widow of Col. John W. Johnson, deceased, to obtain an assignment of dower in the real estate belonging to said Johnson at the time of his decease. She claims one-half thereof as a dower under the third section of the dower act of 1845. The petition in the cause is set forth at large in the report of the cause in 23 Mo. 561. The petition sets forth in substance the following facts: Plaintiff was married to said Johnson in 1831 in the city of St. Louis, and lived with him as his wife in said city until his death, June 1, 1854. A marriage contract was entered into between the parties previous to their marriage. This contract is set forth in the report above referred to. By it, it was agreed that the separate property of the contracting parties should, during their joint lives, form a fund from the income of which they and their issue, if any, should be supported and maintained; that “for the purpose of producing such income the said Johnson shall have the management of the said separate property of the said Lucy Gooding.” It was also agreed that either might, in any manner or form, dispose of one-third of his or her said separate property without the other's interposing any obstacle; also that either might at his or her death, by will, or declaration in the nature of a will, devise or bequeath to any person in absolute property whatever of his or her property might then remain, so that the survivor should be entirely divested of all interest therein; that on the death of either party, the survivor should retain the full right and title in his or her separate property, and the property of the deceased party should be distributed according to the laws then in force. Said Johnson left a will, which was duly proved and admitted to record. After reciting the antenuptial contract above set forth, the will proceeds as follows: “And I, the said John W. Johnson, declare that after my marriage with my wife, the said Lucy Gooding, with her own free consent, I used and invested thirty-five hundred dollars of her money in erecting as a residence for ourselves during our lives, and at her request--stating the house we lived in on Elm street was too lonesome, and in consequence I erected the two-story brick building we now occupy, on my own land, situated on the north side of Market street, in said city of St. Louis, and No. 155, and cost me four thousand six hundred dollars, as per my account book. I devise and bequeath to said wife Lucy, during her natural life, and no longer, the said buildings, together with so much of my land, &c., provided, however, my wife keep this house insured for its full value; if she does not, and the house is destroyed by fire or otherwise, after my death, the loss must be hers and not mine; also the taxes to be paid thereon by her after my death.” “The devises and bequeaths hereby made to my wife Lucy are intended and declared to be in full satisfaction of all and every claim, right of dower or other demands which she may have to my estate, and on the express condition that it shall be received as such. The real estate herein mentioned and devised to my wife Lucy during her natural life, I devise, after the said Lucy's death, to my grandson, John E. Gleim, and his heirs and assigns; and in default,” &c. The testator then proceeds to give directions as to the manner of paying the bequest to the widow. The testator devised and bequeathed almost his entire estate to his daughter Eliza O. Perkins and his grandchildren Rosella Murdock and John Edgar Gleim. Nathaniel J. Eaton became administrator with the will annexed. The other devisees, defendants in this suit except plaintiff, accepted the provisions of the will. There never was any issue of said marriage. The petition proceeds to specify various lots and tracts of ground of which said Johnson was seized at his death; also that after plaintiff's marriage with said Johnson he received various sums of money belonging to the plaintiff, amounting in all to $5,801; that at the time of said marriage Johnson's property was for the most part wholly unimproved; that he employed the money received of the plaintiff to render it valuable and productive; that Johnson “did never keep or perform the said marriage articles on his part, but violated and broke the same in every part and parcel thereof and did conduct himself in fraud and bad faith towards her in that behalf;” that Johnson did merely use and employ the said articles of agreement for the purpose of getting into his possession the property of the plaintiff, and did afterwards refuse, fail and neglect to comply with the said articles in every thing mentioned therein for the benefit of the plaintiff; that he invested her estate so as to improve and enhance the value of his own estate and render it productive of an income for his own benefit and in his own name; that he did not apply the income honestly and in good faith to the maintenance of himself and plaintiff during their joint lives, but merely to the support of himself and certain relatives, children and their husbands and others; that plaintiff received nothing but her clothing, which did not exceed fifty dollars per year in value, and her board and lodging, while she was laboring and toiling assiduously for said Johnson; that the residue of the income derived in common from her property and his he invested for his own benefit and in his own name; that he pretended untruly in his will that he had used only $3,500 of her money, and that she had requested him to employ the same in erecting the house on his property on Market street; that he attempted, in violation of the marriage articles, to force her to elect to take a dower not worth $3,500, not only in satisfaction thereof but also in satisfaction of all other claim on his estate; that he wrongfully mixed up her property with his own; that she is now sixty years of age. She insists that as said Johnson did by his will devise to her an estate to be in full satisfaction of dower, he and all persons claiming under the will are estopped...