Mudd v. Perry
| Decision Date | 17 February 1925 |
| Docket Number | 15655. |
| Parties | MUDD et al. v. PERRY. |
| Court | Oklahoma Supreme Court |
Rehearing Denied April 14, 1925.
Syllabus by the Court.
"Marriage" as at common law creates the status of husband and wife under the law of this state. Whenever the minds of the parties meet in a common consent thereto, the marriage immediately arises. It is a contract between the man and woman, each accepting the other into the ties of that relation, neither remiss to its possible sorrows, nor the enjoyment of its incidental pleasures. The status is created by the contract, by whatsoever evidential facts it may be established if questioned.
Though an amendment allowed by the district court to a petition filed for distribution in the county court may be technically erroneous, if it merely pleads evidential facts of a status as an heir of a decedent, which status was plainly asserted in the original petition, such alleged error is not prejudicial.
When the husband applies under sections 1354 to 1358, inclusive C. O. S. 1921, for distribution of the estate of his deceased wife, who is survived by no descendants, and certain collateral heirs draw in question the lawfulness of the matrimonial status asserted, for the purpose of defeating the distribution to him as prayed, the county court in probate and the district court in probate on appeal, can try this issue, as necessarily incident to the exercise of the power of distribution, under said sections; but the decree of neither court is one of final determination of heirship, in the sense set out in sections 1359 and 1384-1388, inclusive. It is binding and conclusive only as between the parties before the court, while the decree of heirship rendered by following the last-named sections is binding and conclusive as against the world.
Samuel A. Perry and Lucy Lotson Beaver were formally married, when the latter was under a disability, because a decree of divorce granted her had not become effective by the lapse of six months. Both intended in good faith to assume the marital relation. After the said disability was removed, they continued to live together as husband and wife, without a formal marriage ceremony. Held, that under the record in this case the facts occurring after this disability was removed and by the record established were sufficient to give rise to a marriage as at common law, and to make them husband and wife.
Held, further, that the order and judgment from which the appeal herein is taken, directing a distribution to the appellee as the lawful husband of the decedent, is without error, and is affirmed.
Appeal from District Court, Craig County; A. C. Brewster, Judge.
Suit by Alex Mudd and another against Samuel A. Perry. From judgment of county court for defendant, appeal was taken from the district court, and, from its judgment for defendants plaintiffs appeal, and since filing appeal plaintiff Maude L. Mudd dismissed appeal as to herself. Affirmed.
O. L. Rider, of Vinita, F. W. Church and E. C. Fitzgerald, both of Miami, and T. A. Chandler, of Tulsa, for plaintiffs in error.
Chas. V. Rogers, of Tulsa, for defendant in error.
This proceeding is to reverse a judgment of the district court of Craig county, rendered on the 1st day of March 1924, as supplemented on the 21st day of April thereafter. The judgment of the district court was rendered in the exercise of its jurisdiction on appeals from matters probate, from the county court of said county. When filed in this court, the appellants were Alex Mudd and Maude Lee Mudd. Since this appeal was filed, Maude Lee Mudd has secured an order from this court, dismissing the appeal as to herself, and as the matter now stands, the appeal is prosecuted by Alex Mudd. The cause had its origin in the county court of said county by the said Alex Mudd and Maude Lee Mudd seeking a distribution of the estate of one Lucy Lotson Perry, deceased.
Under the provisions of sections 1354 to 1358, C. O. S. 1921, the said Alex Mudd and Maude Lee Mudd pleaded that the said Lucy Lotson Perry died May 31, 1922, that more than 4 months had elapsed since the issuance of letters of administration, that the decedent left no descendants surviving her, that she left no husband, and that the said Alex Mudd was her brother, and the said Maude Lee Mudd was the daughter of a deceased brother of the said decedent, and prayed:
"Wherefore, your petitioners pray that this petition be set down for hearing; that notice of the same be given as provided in section 1355 of the C. O. S. Okl. 1921, and that upon the hearing of said petition, that the court order the distribution of said estate, leaving only such funds in the hands of the administrator as may be necessary to finish paying the debts and the cost of the administration."
Notice was given as provided in said section 1355, and one Samuel A. Perry, who is styled herein as the appellee, under section 1356 came into the same proceeding, denied their allegation decedent left no husband, and made application for a distribution to himself, under said section 1354, of one-half of the estate of the said Lucy Lotson Perry, as the surviving husband of the said decedent, and that the remaining half be distributed equally between Alex Mudd and Maude Lee Mudd.
On hearing these applications after the notice was duly given, as provided by law, a judgment of distribution was entered by the county court, from which an appeal was taken to the district court, and on trial in the district court the judgment from which this appeal is perfected was entered. That judgment was, in effect:
And, further, that the said husband took one-half of the property ordered distributed and that Maude Lee Mudd took one-fourth, and that Alex Mudd took one-fourth. The judgment was conditioned, however, by the requirements set out in section 1357, C. O. S. 1921. The judgment was supplemented thereafter in substance requiring the county court, from which the cause was appealed, to carry the finding and judgment of the district court into effect.
Many assignments of error are made on behalf of the remaining appellant, but those which warrant discussion resolve themselves into few. One is that the district court had no power to enter the order of distribution in favor of Samuel A. Perry. Appellant's argument in support of this contention is centered around the case of In re Coyne's Estate (Okl. Sup.) 229 P. 630, and is to the effect that under the sections of the statute, supra, authorizing the proceeding instituted in the county court of Craig county, a decree of heirship cannot be entered, for that a decree of heirship is exclusively authorized by sections 1359 and 1384 to 1388, C. O. S. 1921, inclusive.
On reading the syllabus in said case, without analyzing it in connection with the facts as disclosed in the body of the opinion, the position of counsel could not be said to be taken without reason. In the Coyne Estate, however, the facts were such as not to justify the interpretation placed thereon which appellant seeks to give it in support of his position. The decedent Coyne in that case did not die without issue surviving, but, on the contrary, left surviving him a daughter, whose whereabouts for a number of years had been unknown. This daughter, Mary Ellen, would have been the sole surviving heir, but not having been heard from for years, a brother, Thomas J. Coyne, acquired a decree of distribution to himself, as heir, undertaking to pursue said section 1359 "on final distribution of estates," but as held by the court in said case, it was treated by the county court as being a substantial compliance with the provisions governing partial distribution. Sections 1354 to 1357, inclusive, C. O. S. 1921.
The law announced in the syllabus in the Coyne Case can be held to go only to the point that the daughter could not be excluded by the proceedings there, and the inheritance taken by her father's brother and paid, as administrator, to himself could not be retained by him; she having established her status as his daughter. It cannot be extended to the point of holding that under the partial distribution statutes, supra, that the person who petitions for a partial distribution as an heir, that any dispute as to his relationship to the decedent or the amount of the estate he is entitled to receive, which may be raised by some other person, cannot be heard and tried by the court. The judgment entered on such hearing is conclusive as against all the parties before the court, but it does not operate as a decree of heirship in the sense that it excludes all other persons foreign to the proceedings for partial distribution who may afterwards come in and desire to be heard, under sections 1359 or 1384 to 1388, inclusive, C. O. S. 1921. But in the instant case the petition for distribution by the appellee is on the ground that he was the lawful husband of the deceased. Under the statute, since it is admitted that decedent left surviving no descendants, he would receive as an heir one half of her property, the remaining half to go in as many divisions as might on a determination of heirship be adjudged there were separate and distinct heirs. How many collaterals there might be to take the other half would not in any wise affect the husband's right to one-half of the property, if in fact he was the lawful husband. Apparently it was conceded by the appellant here, through counsel in the district court, that the...
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