Mantz v. Gill
| Decision Date | 10 February 1931 |
| Docket Number | 19870. |
| Citation | 296 P. 441,147 Okla. 199,1931 OK 35 |
| Parties | MANTZ v. GILL. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
Where divorced husband entered into second marriage within six months of divorce, but acted in good faith, and parties continued to cohabit without change, relationship ripened into common-law marriage; common-law marriage is recognized as valid in Oklahoma; surviving husband of common-law marriage has right to appear and contest will of his deceased wife (Comp. St. 1921, §§ 509, 510, 512, 1103).
Where a second marriage is entered into in good faith, and the parties continue to cohabit without change during and beyond the statutory six months period of impediment, this relationship ripens into a common-law marriage. Such marriage is recognized as valid in this state by our court Andrews v. Hooper, 138 Okl. 104, 280 P. 424; Mudd v. Perry, 108 Okl. 168, 235 P. 479; Fisher v. Fisher, 116 Okl. 129, 243 P. 730, and a surviving husband of a common-law marriage has the right to appear and contest the will of his deceased wife.
Court in probate proceedings cannot construe or interpret will will which is legally executed and proved and not successfully attacked for want of testamentary capacity duress, fraud, or undue influence must be admitted to probate (Comp. St. 1921, § 1106).
In a proceeding to probate a will, the court cannot construe or interpret the will or distinguish between valid or void dispositions. If the will be legally executed and proved, and not successfully attacked for want of testamentary capacity duress, menace, fraud, or undue influence, it must be admitted to probate. Brock v. Keifer, 59 Okl. 5, 157 P. 88; Armstrong v. Letty, 85 Okl. 205, 209 P. 168.
Will properly executed and attested by testatrix when competent and free from disabilities should be admitted to probate, though will disposes of her entire estate to exclusion of surviving husband, contrary to statute (Comp. St. 1921,§ 11301, subd. 2, § 1224, and § 11224, Laws 1925, c. 26, § 1).
Where a wife by a common-law marriage, or otherwise, executes a will, and therein names an executor, provides in part for the payment of all her just debts and funeral expenses from her personal property, and, in the event such personal property is insufficient, from her real estate, described therein, and revokes all former wills, held, that such will, if executed, and attested in the manner required by the statutes, when said testatrix was competent to execute the same, and free from the disabilities which operate under our statutes to defeat the same, is entitled to be admitted to probate, notwithstanding said will may dispose of her entire estate to the exclusion of her surviving husband, contrary to the manner provided for in our statutes. In re Chapman's Will, 193 Iowa, 1238, 188 N.W. 837; In re Mahaffay's Estate, 72 Mont. 579, 234 P. 838.
Appeal from District Court, Carter County; John B. Ogden, Judge.
Proceeding by Paul Mantz for the probate of the last will of Eva Gill, deceased, opposed by E. D. Gill. Judgment of the county court admitting the will to probate was reversed by the district court, and proponent appeals.
Judgment of district court reversed and remanded, with directions.
Brett & Brett, of Ardmore, for plaintiff in error.
Slough & Gibson, of Ardmore, for defendant in error.
This is an appeal from a judgment of the district court of Carter county, Okl., denying the last will and testament of Eva Gill, deceased, to probate, thereby reversing the judgment of the county court of said county in admitting the same to probate. The proceeding was instituted by Paul Mantz filing in said county court a petition for the probate of said last will and testament of said deceased.
The parties hereinafter will be referred to as follows: Paul Mantz, plaintiff in error, as plaintiff, and E. D. Gill, defendant in error, the contestant, as defendant.
There is practically no dispute as to the facts in this case. They may be summarized briefly: In 1896, E. D. Gill and Eva Gill, deceased, the aforesaid testatrix of said will, were married and lived together as husband and wife until on or about the 8th day of October, 1923, on which date the defendant, E. D. Gill, obtained a default divorce from said Eva Gill in the district court of Johnson county, state of Oklahoma. Thereafter, on November 22, 1923, or within forty-five days after the granting of said decree of divorce, said defendant married, in the state of Texas, one I. M. Jarid (I. M. Gill). They returned to Oklahoma, lived together, and held themselves out as husband and wife until December 8, 1924, at which time the said defendant, in an action commenced by him in the district court of the county of Pottawatomie, state of Oklahoma, was granted a decree of divorce from the said I. M. Gill. This action was not contested. Thereafter, on, to wit, the 16th day of December, 1924, or within eight days after obtaining the last decree of divorce, said defendant obtained a marriage license in the county of Cook, state of Texas, and in that state married Eva Gill, deceased, his former wife, from whom he had obtained a decree of divorce on the 8th day of October, 1923. Said defendant and said Eva Gill returned to Oklahoma, and lived together at various places for more than a year as husband and wife.
Said deceased had apparently become dissatisfied, and had come to her brother's home at Berwyn, Okl., to live, and later, accompanied by her niece, Edythe Stamps Mantz, left for Ft. Wayne, Ind., to visit with her said niece, and arrived at Ft. Wayne on July 4, 1926. She stayed at the home of her said niece. She had been in poor health for some time, and on July 21, 1926, Dr. Lyman K. Gould was called professionally to see Mrs. Gill, and several days before her death she indicated that she desired to make a will. The same was thereafterwards reduced to writing, and on August 4, 1926, at Ft. Wayne, Ind., at the home of plaintiff, the husband of said Edythe Mantz, said decedent signed the will in question, which was witnessed by said Dr. Lyman K. Gould, and another witness, both of Ft. Wayne, Ind., which will appears regular as to form, execution, and attestation. The same devises and bequeaths, after the payment of all just debts and funeral expenses, "all the rest and remainder of my estate, both real and personal, wheresoever situated, to my niece Edythe Mantz, and nephew, Paul Mantz, as tenants in common, the above devised especially including Lots 1, 2, 6 and 7 in Block 62, Johnson County, Oklahoma, said place being known otherwise as Gill cottage," and appointed the said Paul Mantz as executor of said will. Said decedent died on August 5, 1926, at Ft. Wayne, Ind. Thereafter, on the 4th day of September, 1926, said plaintiff, Paul Mantz, or proponent, filed his petition for the probate of said will in the county court of Carter county, state of Oklahoma. Thereafter, on the 25th day of September, 1926, the said E. D. Gill filed his protest to the probate of said will, setting forth the following grounds, to wit:
The contest was heard by the county judge of said county, and on November 23, 1926, the county judge entered his order admitting the will to probate, finding that the will was duly executed; that the testatrix was of sound mind and memory, not acting under duress, menace, fraud, or undue influence; that the will was executed in all particulars as required by law; that, at the time of executing said will, the said Eva Gill was not the lawful wife of the said E. D. Gill; that the said E. D. Gill, by reason of his own fault, fraud, and conduct, is not entitled to any share of the property of said Eva Gill, deceased; that the said E. D. Gill was not the lawful husband of the said Eva Gill, deceased, and has no right in the property of said decedent; and that the said Eva Gill was entitled to will her property to the persons made the beneficiaries in said will.
Said defendant, as contestant, perfected his appeal to the district court, and on the 16th day of April, 1928, the district court of Carter county reversed the judgment of the county court of said county, and denied the probate of said will, finding that the plaintiff had sustained the allegations of his protest and that E. D. Gill, the plaintiff therein, defendant herein, was the husband of Eva Gill, deceased, at the time of her death, and had been at all times since their marriage in December, 1924, and that said will is void and of no effect. A motion for new trial was duly filed, same overruled, and an appeal has been prosecuted to this court to reverse the action of the trial court.
The plaintiff in error assigns as error the following:
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