Laberee v. Laberee
| Decision Date | 16 September 1924 |
| Citation | 112 Or. 44,228 P. 686 |
| Parties | LABEREE ET AL. v. LABEREE ET AL. |
| Court | Oregon Supreme Court |
Department 1.
Appeal from Circuit Court, Klamath County; C. F. Stone, Judge.
On petition for rehearing. Former opinion affirmed.
For former opinion, see 227 P. 460.
O. C. Moore, of Spokane, Wash., for appellants.
Winter & Maguire, of Portland, for respondents.
In a very careful and plausible petition for rehearing counsel calls our attention to the following statement in the opinion:
"* * * It was never intimated to his [Laberee's] wife, as far as we find from the testimony, that he wished to be divorced for the purpose of marrying Anita, and silencing a possible, or probable, prosecution."
The accuracy of this statement is challenged by counsel, who calls our attention to the following excerpt from Mrs. Rose J. Laberee's testimony:
The statement in the opinion was inaccurate, but the testimony above quoted is far from convincing. The answer last quoted was substantially elicited by a leading question, and from a witness having a large moral interest hostile to the contentions of Anita, and whose testimony is obviously inaccurate in other respects--for instance, when she testified, in substance, that she took little or no interest or at least paid little attention to the division of the property between herself and her husband, and later an itemized list of it in her own handwriting was produced and shown to her upon cross-examination. The reason given by her for going through the divorce proceedings, namely, to stifle prosecution by putting her husband in a position to marry Anita, while possible, is very improbable. It is the old story of "The Lady or the Tiger?" over again. Most wives would choose that the recalcitrant spouse would fight the tiger, rather than surrender him to the lady.
Death has sealed Laberee's lips. He cannot give his side of the controversy. But, taking Mrs. Rose Laberee's statement as true (though we in fact doubt its accuracy), it does not prove or tend to prove that the will in question was the result of a fear of a prosecution which had already been substantially stifled by the marriage between Laberee and Anita. As stated in the opinion, he had been in a position for two years after his marriage with Anita to have revoked his will and made a new one in favor of his first wife or their children without danger of prosecution or detection and this would have been the natural course for him to have pursued, if he had been forced into a loveless marriage to escape going to jail. Whatever his sins of omission or commission may have been (and they probably have been somewhat magnified), it seems from the testimony that he lived happily with his second wife, and that his affection for her was reciprocated. If he had in fact seduced her, he owed her reparation; if, on the contrary, she was a dangerous, designing woman, intent on getting his money, he no doubt could have settled the matter financially at as little or perhaps much less expense than the division of his property with his wife cost him. We do not believe that he was forced into the marriage, or into the execution of the will.
The assumption that the fact that Anita represented, not only to her mother but to others as well, that she had been married to a man by the name of Lawrence, and that he was the father of her child "David," and that he died in Europe, estops her from afterward or now asserting that Laberee was its father is untenable. If Laberee was in fact its father, three alternatives were presented to her--either to abandon the child, as some heartless women...
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