Mohler v. Shank's Estate

• Decision Date: 18 January 1895
• Parties: MARY A. MOHLER v. THE ESTATE OF ANTHONY SHANK, Deceased, JOHN L. SHANK, Administrator and Appellant, and Z. M. P. SHANK, Appellant, v. MARY A. MOHLER, et al
• Court: Iowa Supreme Court

61 N.W. 981

93 Iowa 273

MARY A. MOHLER v. THE ESTATE OF ANTHONY SHANK, Deceased, JOHN L. SHANK, Administrator and Appellant, and Z. M. P. SHANK, Appellant, v. MARY A. MOHLER, et al

Supreme Court of Iowa, Des Moines

January 18, 1895

Appeal from Montgomery District Court.--HON. H. M. TOWNER, Judge.

The first of the above-entitled actions is a proceeding in probate, by which Mary A. Mohler demands that her dower or distributive share be set off to her, as the widow of Anthony Shank, deceased. The other case is a suit in equity by the heirs of Anthony Shank, and against Mary A. Mohler and others, to quiet the title of said heirs against any claims of Mary A. Mohler in the estate of said Shank. Both of said actions were tried by the court. The application for the admeasurement of dower was sustained, and the petition to quiet title was dismissed. The heirs and the administrator of Anthony Shank, deceased, appeal.

Reversed.

C. E Richards and Smith McPherson for appellants.

J. M Junkin and Harl & McCabe for appellees.

Rothrock J. Deemer, J., took no part in the decision of this case.

OPINION

Rothrock, J.

I.

The two causes involve the same questions, and they will be disposed of in one opinion. The facts are not the subject of dispute, and are, in substance, as follows: Anthony Shank and Mary A. Temple (now Mohler) were married on the first day of January, 1865, at the city of Red Oak, in Montgomery county. They lived together as husband and wife, in said county, until the year 1873, when said Anthony Shank, upon inquest duly held, was adjudged to be insane, and was placed in the insane hospital at Mt. Pleasant, in this state, where he was under treatment as a patient until the year 1881, when he was removed to Mercy Hospital, at Davenport, where he remained until his death, which occurred in 1892. He was insane from the time he was so adjudged until his death. Soon after his removal to Mt. Pleasant, his wife was appointed his guardian by the Circuit Court of Montgomery county. Afterward, and in 1881, she was, by order of the proper court, removed from said guardianship, and another guardian was appointed. Her removal was ordered on the ground that she mismanaged the property of her ward. A judgment for some two hundred dollars was rendered against her and the sureties on her bond, as money due from her in the matter of said guardianship. In the month of January, 1884, T. H. Alexander, then guardian of said Anthony Shank, commenced a suit for divorce in the Circuit Court of Montgomery county against the said Mary A. Shank, in behalf of his ward, based upon the ground of adultery. An original notice was duly served upon the defendant in that suit, and she appeared to the action, and filed a demurrer, one ground of which was that the court had no jurisdiction of the subject-matter of the suit, for the reason that the alleged adultery occurred after the plaintiff became insane, and that a guardian could not procure a divorce for an insane person. The demurrer was duly submitted to the Circuit Court, and was overruled. The defendant excepted to the ruling, and elected to stand on her demurrer. A default was entered against her, for want of an answer, and evidence was introduced, and a decree of divorce was entered of record. Before the decree was entered, the parties to that suit made and signed the following agreement: "Anthony Shank, by Guardian, v. Mary A. Shank. Action for Divorce. The parties hereto agree as follows: (1) That if said court, or the Supreme Court, on appeal, shall hold or decree that plaintiff, Anthony Shank, is entitled to a decree of divorce from the bonds of matrimony between the said Anthony Shank and Mary A. Shank, then the plaintiff shall immediately pay to the defendant four hundred dollars, and shall also pay off and discharge the bills of Mohler, Brown & Co., for three hundred and thirty-one dollars, and H. Roberts & Son, for seventy dollars, against said Mary A. Shank, and shall fully release and discharge defendant and her bondsmen by reason of all acts of the defendant; and during the pendency of this action in this court, or the Supreme Court, the said judgment in Circuit Court against defendant and her bondsmen shall bear no interest, and a final decree in this case in favor of plaintiff shall cancel said judgment, of itself. (2) Said payments so made shall be in full of any and all claims, of any and every kind, for alimony, both temporary and permanent, and said decree of divorce, and the decree for said payments aforesaid, shall be a bar absolute against defendant, barring and estopping defendant from ever claiming any dower or other interest in the property or estate of Anthony Shank, either while he is living, or after his decease, and shall also fully settle all allowances made by this court heretofore to Mary A. Shank or her attorneys, and the same shall be canceled. (3) This case shall be prosecuted with the utmost diligence to a conclusion, and, if said decree of divorce shall be denied, then this agreement shall be void. Witness our hands, January 30, 1884. [Signed] Anthony Shank, by T. H. Alexander, Guardian. Mary A. Shank." The decree of divorce recognized this agreement, and it contained the following provisions in reference to the property rights of the parties: "It is further decreed that the defendant is hereby forever barred and estopped and cut off from having or claiming any right to dower or other estate, or to any part of the property, either real or personal, of the said Anthony Shank, that he now has or may hereafter acquire, or to his said estate or property, or any part thereof, that he may own at the time of his death; that plaintiff has all the rights of an unmarried man. It is further ordered that, as alimony, both temporary and permanent, in full therefor, that plaintiff pay in cash to defendant four hundred dollars; that plaintiff pay a bill contracted by defendant with Mohler, Brown & Co., of three hundred and thirty-three dollars, and a like bill, of seventy dollars, to H. Roberts & Son, and that a judgment of two hundred and eleven dollars, rendered by this court at late January, 1884, term, in a case wherein T. H. Alexander, guardian of Anthony Shank, was plaintiff, and Mary A. Shank, E. Temple, William Painter and William Archer were defendants, be, and the same is hereby satisfied in full, and canceled, and all other claims of defendant for support are hereby barred; and that execution issue therefor." The amounts provided for in the agreement and decree were promptly paid to the defendant, and the judgment satisfied in full, so that the defendant was allowed and received something more than one thousand dollars. There is no claim made that there was not sufficient cause for a divorce. On the contrary, it is conceded that Mrs. Shank (now Mrs. Mohler) was delivered of a bastard child on the seventh day of August, 1881, more than two years before the action for divorce was commenced; and on the twenty-second day of July, 1884, a marriage license was duly issued to Mary A. Shank and J. L. Mohler, and they were married on the same day. Mrs. Shank-Mohler testified as a witness, in part, as follows: "There were no children born to Anthony Shank and me. There was a child born August 7, 1881. That child was not Anthony Shank's child. This child that I have just spoken of was the child of my present husband, J. L. Mohler."

II. The appellee founds her claim to a distributive share of the estate upon the ground that when Anthony Shank died she was his lawful widow. In other words, the contention in her behalf is that the decree of divorce is absolutely void because the Circuit Court had no jurisdiction to entertain the divorce proceeding and enter a decree; the husband in whose behalf the jurisdiction of the court was invoked being at the time insane, and his guardian having no lawful power or authority to commence or maintain the action for divorce. It is conceded that the suit was commenced in the proper county, that service of the original notice was duly had, and that the defendant therein appeared. No question is made as to the form of the decree, and as to the reasonableness of the amount of alimony allowed the defendant; and, although the defendant entered into marital relations with Mohler long before the death of Shank, she insists that she is the widow of Shank. She does not attack the decree directly, and demand that it be set aside and vacated; but she insists that it is void, and should be disregarded by the court, because no right can be predicated thereon by the lawful heirs of Shank. The heirs of Shank maintain that the decree is not void, that there was no defect as to the party plaintiff, and that the guardian had the legal right to maintain the action for divorce. The statutes of this state on the subject of divorce and guardianship are referred to in argument as sustaining this view. It is unnecessary to cite the sections of the Code relied upon by counsel. They contain no such authority, neither expressly nor by implication. On the contrary, we think that they plainly imply that such a proceeding is not authorized. Section 2222 of the Code requires that the petition for divorce "must be verified by the oath of the plaintiff." It is true that this requirement is not jurisdictional. See McCraney v. McCraney, 5 Iowa 232; Ellis v. White, 61 Iowa 644, 17 N.W. 28. But the fact that the statute requires the oath of the plaintiff, and provides for no substituted...