McCord v. McCord

• Decision Date: 27 March 1911
• Docket Number: Civil 1168
• Citation: 13 Ariz. 377,114 P. 968
• Parties: ANNA M. McCORD, Plaintiff and Appellant, v. MARY EMMA McCORD, Defendant and Appellee
• Court: Arizona Supreme Court

114 P. 968

13 Ariz. 377

ANNA M. McCORD, Plaintiff and Appellant, v. MARY EMMA McCORD, Defendant and Appellee

Civil No. 1168

Supreme Court of Arizona

March 27, 1911

APPEAL from a judgment of the District Court of the Third Judicial District, in and for Maricopa County. Edward Kent, Judge. Affirmed.

STATEMENT BY THE COURT.

This action was commenced by the appellant, Anna M. McCord, in December, 1909, in the district court of Maricopa county against Mary Emma McCord, the appellee, to recover a community interest in certain property in Phoenix, Arizona which the appellant claimed as the surviving widow of Myron H. McCord, who died in April, 1908. The case was tried to the court without a jury. From a judgment for the defendant, and the denial of a motion for a new trial, an appeal has been taken to this court. The assignment of error alleges that the court erred in rendering judgment for defendant and appellee and against plaintiff and appellant, and in denying plaintiff's motion for a new trial, for the reason that the evidence in the said cause does not sustain the order for judgment, nor the said judgment.

It appears from the record that the appellant and McCord were married in 1861, and, after their marriage, lived in Shawano Wisconsin, until 1875. There were five children the issue of such marriage. In 1875 they moved to the town of Jennie, Wisconsin (now the city of Merrill), about eighty miles distant from Shawano, and lived there together until the summer of 1876, when appellant and the children returned to their former home in Shawano on a visit. McCord was absent from the town of Jennie some considerable time during that summer, the evidence does not disclose exactly how long, or to what place or places he went other than one trip to Cincinnati, Ohio. Some six weeks after her return to Shawano, the appellant received a paper from some place in Utah containing a summons in a divorce suit brought against her by her husband. About two weeks thereafter she went back to Jennie, taking with her two of the older children, to see McCord about the divorce, "and see what he was going to do." She met McCord at Wausau, a town between Shawano and Jennie. He was driving a team of his own, and took one of the children with him, but refused to take Mrs. McCord. She followed the next day, going in the stage from Wausau to Jennie. She found the house they had formerly occupied locked. She put the little girl in through the window, unfastened the door from the inside, and entered the house. Soon after their entry into the house, McCord, who was editing a newspaper at that time in Jennie, came to the house. They had a conference. Mrs. McCord states that she does not remember their conversation. She says that he threw a paper into her lap, saying it was a divorce paper, and told her he was going to marry another woman. Her son, who was then a boy of eleven years of age, testified that his father and mother went into the parlor and talked awhile. He does not know what their conversation was; that his mother was crying when she came out. Mrs. McCord, taking the furniture with her, moved back, with the children, to Shawano. McCord did not accompany them. From that time until the death of McCord, they continued to live separate and apart, she at the town of Shawano, and he at Jennie, afterward called Merrill, Wisconsin, until 1893, when he removed to Arizona, and lived in this territory until his death. It further appears that a couple of months after the separation McCord was at Oshkosh, Wisconsin, and appellant went there to see what provision he was going to make for her support and that of the children. He returned with her to Shawano, and deeded to her a dwelling-house, store building, and other property in Shawano, and some land near there, apparently all the property that he then had except his newspaper plant in Merrill. They never afterward resumed their marital relations:

In August, 1877, McCord was married at Jennie to Sarah E. Space, a resident of that town. This appears to have been a public marriage, in the presence of a large concourse of friends, and an extended notice thereof appeared in the paper published in that place. Two years thereafter his son Charles took up his residence with McCord and his second wife, helping his father about the printing office, and at times attended school until he was fully grown, and then worked for his father in the lumber business, in which McCord afterward engaged. His daughter Florence, about 1879, also visited the father and second wife quite frequently, and for some time made her home with them and taught school in Merrill. About 1879 they adopted a child named Guy McCord, then about two years old, who lived with them continuously until he attained his majority. In 1888, when McCord was a candidate for Congress, the appellant learned that McCord's political opponents wished to interview her in regard to her relations with McCord. She then agreed that if he would leave her free of debt, and would free the store building, she would not say or do anything that might injure him in the campaign. McCord thereupon gave her his note for $3,000. She says: "It was to keep me from saying anything at that time. I got it to keep still. It was when he ran for Congress about twelve years after we had separated, and from that time on until he died I never did say anything. I heard that he was then married; that he was publicly married and was then living with his second wife." McCord was quite prominent in business and politics at that time. His second wife was recognized by the public as his wife, was received in the best society, and their home was often open to public receptions. McCord's children were often at his house in Merrill, Charles and Florence practically making their homes there, and were spoken of by him on all occasions as his children by his first wife, from whom he was divorced. From 1893 to the time of his death in 1907, McCord held various public offices in Arizona, and was a prominent factor in the political and social life of the territory. After the death of his second wife, McCord was again married in August, 1904, to the defendant and appellee, Mary E. McCord. She had formerly lived at Merrill, Wisconsin, and there had known McCord and his wife, also the children by the first marriage, and knew in a general way of the divorced wife living in Shawano. At the time McCord left Wisconsin and moved to Arizona he was insolvent, but his second wife had some property of her own, a house in Merrill, and about $11,000 that had been left her from her mother's estate. In 1899 McCord was adjudged a bankrupt, and discharged as such in June of that year. In 1899 McCord acquired the town lots in question for services rendered the owners of that and contiguous property, and during the following year a house was built thereon, which it appears must have been paid for from the money of his second wife, as McCord had just been discharged as a bankrupt, and does not appear to have had any money or property at that time. The property stood in the name of M. H. McCord. His second wife died in 1903. She executed a will in 1898, which was probated after her death in 1903, by which she devised and bequeathed to M. H. McCord all her real and personal property. After the death of his second wife, McCord was married to the appellee, Mary E. McCord, in 1904. In 1906 he conveyed to her this property for an expressed consideration of $1,000 and in 1907 by will gave and bequeathed unto her, as his wife, all his property, real and personal, of every kind of which he might be possessed at the time of his death. He died in April, 1908, and this will was duly probated after his death.

Appellant bases her claim for the community interest sued for upon her marriage to McCord at Shawano, Wisconsin, in 1861, and the allegation that the said marriage has never been dissolved or annulled, and attacks upon this ground the validity of his marriage to Sarah E. Space in the town of Jennie, Wisconsin, in 1877, and likewise his marriage to the appellee in 1904. The appellee claims as the grantee in the deed of conveyance of the property for an expressed valuable consideration, and likewise under the will as the surviving widow of M. H. McCord.

G. P. Bullard and F. H. Lyman, for Appellant.

The mere presumption existing from a record of a second marriage might be good evidence in some cases, but certainly will not be sufficient to overcome the presumption of the continuing validity of the first marriage in the absence of other testimony, and should be given little weight in cases involving property rights. Goodwin v. Goodwin, 113 Iowa 319, 85 N.W. 31. "Where records in each county in which parties to the first marriage lived show no divorce, the burden then shifts to the person desiring to establish the validity of the second marriage to establish divorce." Schmisseur v. Beatrie, 147 Ill. 210, 35 N.E. 525; In re Colton Estate, 129 Iowa 542, 105 N.W. 1008; Casley v. Mitchell, 121 Iowa 96, 96 N.W. 725. The presumption in favor of the divorce to establish the validity of the second marriage is not a presumption of law but a presumption of fact and may become easily overcome. Hammond v. Hammond, 43 Tex. Civ. App. 284, 94 S.W. 1067. Plenary proof in this case to overcome the presumption of the divorce can hardly be expected. Compton v. Benham (Ind. App.), 85 N.E. 365; Greenleaf on Evidence, 16th ed., par. 78; Clayton v. Wardell, 4 N.Y. 230.

Thos. Armstrong, Jr., for Appellee.

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