Lea v. Galbraith, 7058

• Decision Date: 05 May 1943
• Docket Number: 7058
• Citation: 64 Idaho 724,137 P.2d 320
• Parties: S. W. LEA and S.W. LEA, Administrator of the Estate of Nellie Cox Lea, deceased, Respondent, v. ELIZA GALBRAITH, GERTRUDE McNEE, MARIE McMINN, NELLIE CRABB, ALLIE SCOTT, SINA SMITH, EMMA FAIRBANKS, GEORGE STEPHENS and SALLIE HARMON, Appellants
• Court: Idaho Supreme Court

137 P.2d 320

64 Idaho 724

S. W. LEA and S.W. LEA, Administrator of the Estate of Nellie Cox Lea, deceased, Respondent, v. ELIZA GALBRAITH, GERTRUDE McNEE, MARIE McMINN, NELLIE CRABB, ALLIE SCOTT, SINA SMITH, EMMA FAIRBANKS, GEORGE STEPHENS and SALLIE HARMON, Appellants

No. 7058

Supreme Court of Idaho

May 5, 1943

MARRIAGE-PRESUMPTIONS-EVIDENCE-DECLARATIONS-HEARSAY-DESCENT AND DISTRIBUTION.

1. All reasonable presumptions must be indulged in favor of regularity and legality of marriage regularly solemnized, and burden is on party attacking validity thereof to show by clear, cogent and satisfactory evidence that legal impediment to marriage existed at time of its solemnization.

2. In proceeding for distribution of intestate's estate to petitioner as intestate's surviving husband, evidence held to sustain and corroborate legal presumption that petitioner's former wife obtained divorce from him before his marriage to intestate, so as to entitle petitioner to relief prayed.

3. In proceeding for distribution of intestate's estate to petitioner as intestate's surviving husband, evidence that petitioner falsely stated in his application for license to marry intestate that he had not been previously married was insufficient to rebut legal presumption that his former wife divorced him before his marriage to intestate, in absence of showing that such statement, if true would have made any difference in issuance of license and subsequent marriage.

4. In proceeding for distribution of intestate's estate to petitioner as intestate's surviving husband objectors' proffered exhibit of copy of complaint for accounting and declaratory relief, filed in court of another state after petitioner's marriage to intestate by his former wife, who alleged therein that she was then married to petitioner, was properly excluded as "hearsay" and "self-serving" ex parte statement by stranger to proceeding and post litem motam.

5. In proceeding for distribution of intestate's estate to petitioner as intestate's surviving husband objectors' proffered exhibit of copy of complaint, filed in court of another state after petitioner's marriage to intestate by his former wife, who alleged therein that she was then married to petitioner, was not admissible in evidence under "pedigree rule."

6. In proceeding for distribution of intestate's estate to petitioner as intestate's surviving husband, objectors claiming that woman whom petitioner married before his marriage to intestate was still his wife and having knowledge of her whereabouts, had burden of producing her as witness or procuring her deposition.

7. Where wife dies intestate, leaving surviving second husband and neither issue nor parents, her estate must be distributed under statutory provision that whole estate in such case shall go to surviving husband, not under provision that common property of deceased widow and her previously deceased husband shall go to husband's surviving parents or brothers and sisters, and whether intestate continued to be widow of her first husband after his death and her remarriage to surviving husband is immaterial. (I.C.A sec. 14-103, subds. 4, 8; secs. 14-113, 14-301, 14-302.)

Appeal from the District Court of the Ninth Judicial District for Fremont County. Hon. C. J. Taylor, Judge.

Petition for distribution of estate of intestate and for adjudication of heirs. From order of Probate Court, distributing estate to surviving sisters and brother of decedent and her pre-deceased husband, S.W. Lea appealed to District Court. From a judgment of the District Court, reversing the Probate Court and awarding the estate to Lea, as surviving husband, the sisters and brother have appealed. Affirmed.

Judgment affirmed. Costs awarded to respondent.

Frank A. Miller and Merrill & Merrill for appellants.

The presumption of validity of a marriage is not conclusive but is a rebuttable presumption. It is indulged in by the courts in the interest of morality and for the protection of innocent people, but when, in a particular case, neither exists, the reason for the presumption disappears. It is rebutted by substantial proof showing a prior marriage of one of the parties and that such prior marriage had not been dissolved either by decree of divorce or annulment or by death of the other spouse. (In re Monks, (Cal.) 120 P. 167; Brokeshoulder v. Brokeshoulder, (Okla. ) 204 P. 284; Moran v. Superior Court, (Cal.) 100 P. 1096; Schmisseur et al v. August Beatrie et al, (Ill.) 35 N.E. 525; Industrial Commission v. Dell, (Ohio) 135 N.E. 669.)

The duly authenticated copy of the verified complaint of Rosa Seaton Lea was entitled to be admitted in evidence because (a) it established the fact that Rosa Seaton Lea was alive after the death of Nellie Cox Lea, (b) it was in rebuttal of the presumption of the first marriage, (c) it rebutted the testimony of S.W. Lea touching this marriage, and (d) it came under the pedigree rule. Its exclusion was prejudicial error. (Sloan v. West, (Wn.) 96 P. 684, 17 L. R. A. (N. S.) 960; Goff v. Goff, (Cal.) 125 P.2d 848; Mar Shee v. Maryland Casualty Co., (Cal.) 210 P. 269; Braselton v. Vokal, (Cal.) 200 P. 670.)

All of the property involved in this estate, except $ 139.85 was either the separate property of Robert Cox, deceased or the community property of Robert Cox and Nellie Cox Lea. The descent of this property, under the circumstances of this case must be to the brother and sisters of said deceased parties pursuant to Sec. 14-103, subd. 8, I. C. A., and in no event to S.W. Lea. (Sec. 14-103, I. C. A. 1932; In re McArthur's Estate, (Cal.) 292 P. 469, 72 A. L. R. 1318; Harlan v. Sparks, 125 F.2d 502; Estate of Brady, (Cal.) 151 P. 275.)

Ralph L. Albaugh and Errol H. Hillman for respondent.

When an existing marriage has been shown, the presumption of its validity is so strong that it will be presumed that the impediments of a former marriage have been removed by death or dissolution and this presumption casts the burden upon the party attacking the validity of a subsequent marriage to show by clear, cogent and satisfactory evidence that the former marriage has never been dissolved. (Nicholas v. Idaho Power Co., 63 Idaho 675, 125 P.2d 321, at p. 325; Mauldin v. Sunshine Min. Co., 61 Idaho 9, at p. 17; Estate of Tormey, 44 Idaho 299, at pp. 305-6; Smith v. Smith, 32 Idaho 478, at pp. 481-2; Labonti v. Davidson, 31 Idaho 644, at p. 650; Huff v. Huff, 20 Idaho 450, at p. 459.)

In order for a declaration as to pedigree to be admissible, it is generally held that a declarant must be dead and that the declarations must have been made ante litem motam and before commencement of a suit involving the issue to which the declaration relates and under such circumstances that the person making them could have no motive to misrepresent the facts. (31 C. J. S., p. 975, 979; 20 Am. Jur., p. 411; Note 72 of 22 C. J. at p. 258; Jelser v. White, (N. C.) 110 S.E. 849, at p. 850; Wilson Wood & Lbr. Co. v. Hinton, (N. C.) 86 S.E. 494, at p. 496.)

AILSHIE, J. Holden, C.J., Givens, and Dunlap, JJ., concur. Budge, J., dissents.

OPINION

AILSHIE, J.

July 1, 1906, Robert Cox and Nellie I. Stephens, both of Fremont County, intermarried. At that time Cox owned a homestead of 160 acres and later acquired other valuable real property. They cohabited together until Mr. Cox died intestate about March 17, 1931. December 4, 1931, decree of distribution of his estate was filed, showing the property to be community property, with the exception of the homestead above mentioned, which consisted of the "South West quarter of Section fifteen, Township seven North of Range Thirty-nine East of Boise Meridian" in Fremont County, decreed to be the separate property of Robert Cox, but a part of the residue of the estate. Mrs. Cox, as surviving wife of decedent was decreed "the entire residue of said estate." Mr. and Mrs. Cox had no children.

Silas W. Lea, or S.W. Lea, respondent, married Rosa Seaton at Mack's Creek, Missouri, September 9, 1900; they lived together until October 17, 1909, and had three children, Wade, Wilma, and Winnie Lea. December 30, 1910, complaint for divorce was filed by Mrs. Lea, on the ground of desertion. Publication of legal notice, under Missouri statutes, for four successive weeks, was shown; and Lea's testimony discloses that he was served in Nebraska with the summons and other divorce papers. The action was "dismissed at cost of plaintiff" (Mrs. Lea) August 19, 1912. No proceeding was ever filed by Lea for divorce from Rosa Seaton Lea.

In 1917 Della Rosa Lea, purporting to be the same person as Rosa Seaton Lea entered into a remarriage with Devo L. Muggy; later divorce was granted and Rosa remarried the following persons, in order named: H. A. Berry (1926), a Mr. Couch (1937), and Charles Thomas Warford (1938). At various times Lea knew of the residence of his former wife and talked with her in 1937. He "always considered her being divorced" from him.

At Bozeman, Montana, August 18, 1932, Lea and Nellie Cox, widow of Robert Cox, deceased, intermarried. They resided together until her death, December 5, 1940; she died intestate. January 11, 1941, Lea filed petition for letters of administration, and was appointed administrator January 22d. August 28, 1941, petition was filed by Eliza Galbraith Gertrude McNee, Maria McMinn, and Nellie Crabb, sisters and heirs at law of Robert Cox, deceased; they were called "The Cox Group", praying that a decree of distribution be made, decreeing "all that part or portion described in the inventory and appraisement . . . . to which said heirs of Robert Cox, deceased, are entitled." October 24, 1941, the first account, report and petition for distribution of the estate was filed by the administrator. The total value of the...