Klipfel's Estate v. Klipfel

• Decision Date: 07 October 1907
• Citation: 92 P. 26,41 Colo. 40
• Parties: KLIPFEL'S ESTATE et al. v. KLIPFEL.
• Court: Colorado Supreme Court

92 P. 26

41 Colo. 40

KLIPFEL'S ESTATE et al. v. KLIPFEL.

Supreme Court of Colorado

October 7, 1907

Error to County Court, City and County of Denver; Ben B. Lindsey Judge.

Petition by Minnie Klipfel against Henry J. Ott, as administrator of the estate of Louis Klipfel, deceased, and another, to establish her marriage to said decedent and her right to share in his estate as his widow. From a judgment for petitioner, defendant brings error. Reversed and remanded.

John Rush and Fred W. Parks, for plaintiff in error.

Ward &amp Ward, for defendant in error.

CASWELL J.

On June 21, 1901, Marie Klipfel filed a petition for letters of administration of the estate of Louis Klipfel, deceased, in the county court of the city and county of Denver, claiming to be his widow. On June 22, 1901, Minnie Klipfel filed her petition for letters of administration of the estate of said Louis Klipfel, deceased, in said county court, also claiming to be his widow. On July 5, 1901, both parties, with others presumably heirs, waived their claims to be appointed administrator of the estate, in favor of Frank Klipfel. On September 17, 1901, Frank Klipfel resigned, and Henry J. Ott, plaintiff in error herein, was appointed administrator de bonis non of the said estate. Further proceedings in this case in the county court were had, as shown by the abstract of record, upon a verbal statement of the attorney for Minnie Klipfel, defendant in error, named in the record as petitioner in the court below, against the plaintiff in error, who is named as respondent; the statement being as follows: 'So that we may have a record of what this proceeding is, this is a preliminary matter to enable the court to determine whether or not the petitioner herein was or was not the wife of Louis Klipfel, deceased. That is the only question to be tried before the jury at this time. There are no pleadings in the matter.' We infer that the claim of petitioner that she was the widow of the deceased was considered to have been denied, and that the statement, with such denial, makes up the issue in the case upon which the testimony was received. Trial was had to a jury. There was a verdict and decree for petitioner, and respondent brings the case to this court by writ of error.

It appears from the testimony that the petitioner claimed to be the common-law wife of Louis Klipfel in his lifetime. There was no marriage ceremony or any express contract of marriage shown by the record, and petitioner apparently relies upon an implied contract. It is established by the record, and undisputed by the defendant in error: That prior to 1889 Louis Klipfel came to Denver with his then wife, with whom he lived at 25th and Gilpin streets, in said city, until her death, September 7, 1893; that in 1889 the petitioner, then known as Minnie Kimmel, came from Germany and entered the home of Louis Klipfel as a servant girl, where she remained as such until the death of Mrs. Klipfel, in 1893; that in 1892, and prior to the death of Mrs. Klipfel, a child was born to this servant girl as a result of her illicit and immoral relations with Louis Klipfel; and that the child was recognized by Louis Klipfel as his own, and he cared for and supported her. It is clearly shown by the record that at the origin of such inter-course Minnie Klipfel well knew that the same could not have been carried on between herself and Louis Klipfel with any intention of marriage or under promise of marriage relations; Klipfel's wife then, and for a long time thereafter, being alive. Louis Klipfel died in 1901 in the city of Denver. Considerable testimony was introduced at the trial to show his relations with the petitioner between the date of the death of his wife in 1893, and of his own death in 1901. There was also much testimony introduced to show his relations with Marie Klipfel, so called, during the same years. This evidence, as stated by respondent, was offered to show a divided reputation, while the court instructed the jury that it was received to show the residence of Klipfel during that time. The respondent contends that the testimony as a whole does not prove, or tend to prove, that either of the women mentioned was the wife of deceased, and that neither of them can participate in the estate. We think this contention is correct and fully sustained by the testimony, but the rights of Marie Klipfel, so called, are not involved in this decision, and the testimony concerning her relations with deceased is only considered to disprove the claim of petitioner.

Defendant in error claims that the jury passed upon the merits of the testimony, and found as a fact, under proper instructions, that the petitioner was the common-law wife of deceased, and that the verdict should not be disturbed. In Taylor v. Taylor, 10 Colo.App. 303, 50 P. 1049, the court had under consideration a case involving a question similar to the one in hand. We think the rule laid down in that case is supported by the weight of authority and is a correct statement of the law. The court in that case says: 'By the statutes of Colorado, marriage is declared to be a civil contract, and there is only one essential requirement to its validity between parties capable of contracting, viz., consent of the parties. * * * It follows, therefore, that a marriage contract between parties of contracting capacity, which possesses the one essential prerequisite, may be valid, although no provision of the statute as to its solemnization may have been followed or attempted. In other words, in this state a marriage simply by agreement of the parties, followed by cohabitation as husband and wife, and such other attendant circumstances as are necessary to constitute what is termed a common-law marriage, may be valid and binding. * * * It is also agreed that in cases where the contract or agreement is denied, and cannot be shown, its existence may be proven by, and presumed from, evidence of cohabitation as husband and wife and general repute. 'Cohabitation,' as here used, means something more than sexual intercourse.' Quoting from Yardley's Estate, 75 Pa. 211, the court further says: 'It is not a sojourn, nor a habit of visiting, nor even remaining with for a time. None of these fall within the true idea of cohabitation as a fact presumptive of marriage. To cohabit is to live or dwell together, to have the same habitation, so that where one lives and dwells there does the other live and dwell with him.' By 'general reputation and repute' is meant the understanding among the neighbors and acquaintances with whom the parties associate in their daily life that they are living together as husband and wife, and not in meretricious intercourse. 'In its application to the fact of marriage it is more than mere hearsay. It involves and is made up of social conduct and recognition, giving character to an admitted and unconcealed cohabitation.' Badger v. Badger, 88 N.Y. 556, 42 Am.Rep. 263. 'It is necessary that there be evidence both of cohabitation and reputation before such a marriage can be presumed. Proof of one alone is not sufficient to sustain the presumption.' Commonwealth v. Stump, 53 Pa. 132, 91 Am.Dec. 198. In Case v. Case, 17 Cal. 598, the court said: 'Cohabitation, attended with other facts, is merely a circumstance from which marriage in fact may be presumed; but, where facts are proved from which a contrary presumption arises, all former evidence falls, or at least is neutralized.' In Riddle v. Riddle, 26 Utah 268, 72 P. 1081, the court said: 'One of the essential obligations of a valid marriage contract is that it binds the parties to keep themselves separate and apart from all others and cleave to each other during their joint lives.'

Tested by the foregoing rules, the evidence for petitioner was wholly insufficient to...