Lando v. Lando
| Decision Date | 21 October 1910 |
| Docket Number | 16,672 - (207) [2] |
| Citation | 127 N.W. 1125,112 Minn. 257 |
| Parties | ADOLPH LANDO v. IDA LANDO |
| Court | Minnesota Supreme Court |
Adolf Lando appealed to the district court for Ramsey county from an order of the probate court for that county denying his petition for his appointment as administrator of the estate of his son, David Herman Lando, who died in Vienna, Austria in May, 1908. In the district court it was ordered that the petition for his appointment should stand for a complaint and Ida Lando have leave to answer. Her answer admitted that deceased was a resident of the County of Ramsey at the time of his death, and that petitioner was the father of deceased denied that his father and mother were his heirs at law and alleged that she and the deceased were married on September 25, 1907, and from that time lived as husband and wife, and that defendant was his widow and sole heir. The reply denied the new matter alleged in the answer.
The appeal was heard before Bunn, J., who reversed the order of the probate court. From this order, defendant appealed. Reversed and remanded, with directions to the trial court to amend its conclusions of law and to enter judgment for appellant.
The stipulation referred to in the opinion agreed "that the German law which was in force from September 21, 1907, to May 19, 1908," so far as thereto applicable, was correctly translated in the schedule attached to, and made a part of the stipulation; and it was agreed that such schedule (Two editions of which had been particularly described and identified in the stipulation.)
Validity of foreign marriage -- proof of foreign law.
Respondent, the father of David H. Lando, deceased, filed a petition for his appointment as administrator of the estate of his deceased son. Appellant, Ida Lando, whose maiden name was Oberg, appeared and objected to the appointment, claiming that she was the widow of the said deceased.
Deceased and appellant, residents of Minnesota, there exchanged mutual promises to marry in the future. Subsequently at Hamburg, Germany, they exchanged matrimonial consents before, and were pronounced husband and wife by, a man believed by appellant to be a minister of the Gospel. She then and at all times thereafter in good faith believed that she and said deceased were thereby married to each other. Thereafter, and up to the time of the death of the deceased, in Vienna, deceased and appellant lived and cohabited as husband and wife in Austria, held themselves out as husband and wife, and were reputed to be husband and wife among their friends and acquaintances in Vienna and in Minnesota. They never lived or cohabited as husband and wife in this state, or in any of the United States. There was no other marriage ceremony. The person who performed the ceremony in Hamburg was not a civil magistrate or registrar, and was not a person authorized by the law of Germany to celebrate a marriage between German subjects. It is held:
1. The validity of a marriage is to be determined by the law of the place where the ceremony is performed. A marriage regular where solemnized is valid everywhere. A marriage void where it is celebrated is void everywhere. The validity of the marriage here in question was determined by the law of Germany then in force.
2. A foreign law is a fact, which must be pleaded and proved like any other fact. This court does not take judicial cognizance of the German law applicable to this case.
Effect of stipulation as to foreign law.
It was stipulated that such German law was correctly translated as follows:
That stipulation concerned a matter which is here of fact and not of law.
Neither the construction of the German code as a whole, nor the relevant authorities, determine the construction to be placed on this equivocal translation.
The literal significance of the terms of the translation leads to the construction that, under the first paragraph of the article, the deceased and appellant were aliens who had concluded "a marriage within the empire;" that such marriage was determined by the law of the country of which they were subjects; that, the parties being residents of Minnesota, the attempted marriage was governed by the law of that state; and that the last paragraph is a direction to German officials as to the manner in which they must celebrate marriages in Germany between German subjects.
Presumption of validity -- evidence.
When a marriage has been shown in evidence, whether regular or irregular, the law raises a strong presumption of its legality; not only casting the burden of proof upon the persons objecting, but requiring them throughout, to make plain, against the constant pressure of this presumption, the truth of law and fact that the marriage was irregular and void. The evidence to repel that presumption must be strong, distinct, and satisfactory.
Marriage valid in Minnesota.
In view of this presumption, the translated law as stipulated is held to have been satisfied by this marriage, valid under Minnesota law.
Young & Stone and Otto Kueffner, for appellant.
Harris Richardson, Harold C. Kerr and Hiram D. Frankel, for respondent.
The respondent, Adolf Lando, filed a petition in the probate court of Ramsey county for his appointment as administrator of the estate of his son, David H. Lando, deceased. The appellant, Ida Lando, appeared and objected to the appointment, claiming that she was the widow of deceased. On appeal to the district court, the essential issue was tried and determined, namely, whether David H. Lando at any time during his life married the appellant. If she was his legal wife, she is entitled to appointment as administratrix, and under the intestate law to the property of the deceased; if she was not his wife, the respondent is entitled to administration, and the family of the deceased to inherit his estate.
The deceased, at the time of his death and for many years prior thereto, had been a resident of the city of St. Paul, Minnesota, and engaged in the practice of medicine and surgery therein. The appellant, whose maiden name was Ida Oberg, is twenty-seven years of age, was born in Sweden, but has resided in St. Paul since early childhood. She had been a trained nurse, and associated with Dr. Lando in that capacity. In September, 1907, the doctor and the nurse left separately for New York, but sailed on the same ship to Hamburg.
The trial court was not only justified in finding, but was required by the evidence to find, that Cohabitation followed. The wedding ring and the watch, with the initials thereon, which the doctor gave her, were significant of that relationship. The parties then left for Berlin and went to Vienna. The doctor renewed his studies at the Viennese general hospital under the patronage of the distinguished surgeon Baron von Eiselberg, who entertained the doctor and appellant as his wife. The evidence is abundant that they lived together openly as husband and wife, and were reputed to be such in Vienna.
It is true that while the parties were in New York a St. Paul newspaper published an account their marriage in New York. Dr. Lando wrote from Vienna, demanding a retraction of all these statements. There was also evidence, however, that he wrote to a friend in America:
The record contains an abundance of letters written by the deceased in his life which refer to appellant as his wife. He sent to the University of Minnesota an application for the position of professor of surgery, in which he stated that he was married.
The trial court properly found: ...
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