Ollschlager's Estate v. Widmer

• Decision Date: 21 December 1909
• Citation: 105 P. 717,55 Or. 145
• Parties: OLLSCHLAGER'S ESTATE v. WIDMER et al.
• Court: Oregon Supreme Court

105 P. 717

55 Or. 145

OLLSCHLAGER'S ESTATE v. WIDMER et al.

Supreme Court of Oregon

December 21, 1909

Appeal from Circuit Court, Marion County; Wm. Galloway, Judge.

In the matter of the estate of Henry Ollschlager, deceased. From a decree directing the distribution of the estate on the filing by Theo. M. Barr, administrator, of his final account, J.M Widmer and others, objectors, appeal. Affirmed.

See also, 50 Or. 55, 89 P. 1049.

Martin L. Pipes and Carey F. Martin, for appellants.

P.H D'Arcy and Geo. G. Bingham, for respondent.

KING J.

This is a contest over the distribution of the estate of Henry Ollschlager, deceased; the sole question presented being whether he and the petitioner, Mrs. Mary Ollschlager, were legally married. The decedent died in Marion county March 24 1904, leaving an estate estimated at about $21,000, of which Theodore M. Barr was appointed administrator, qualified as such, and proceeded with the administration, which position he has since held. In his final account he asked permission to distribute all of the residue of the estate to the petitioner named, as the widow of the decedent; but J.M. Widmer, Margaret M. Widmer, Gertrude D. Widmer, George C. Widmer, Christian Sulzen, Hubert Sulzen, Karl Sulzen, Peter Sulzen, Elizabeth Sulzen, and Joseph Sulzen, as collateral kindred of the decedent, objected, urging that the petitioner was not the widow of the decedent, nor in any way related to him, and therefore not entitled to share in his estate. The objections were overruled, and the prayer of the administrator granted. On appeal to the circuit court the rulings of the county court were sustained, but here reversed, on questions of procedure, and remanded for a new trial. 50 Or. 55, 89 P. 1049. The cause was retried, and, from decrees entered in petitioner's favor, comes here again on appeal.

The facts disclosed by the record, so far as material to this controversy, are: Between the years 1883 and 1887, Henry Ollschlager, the decedent, a resident of Marion county, took two or three trips to Germany, visiting relatives residing there, among them a sister, who, in 1887, died, leaving an estate in which he had an interest. For a number of years there had resided with this sister a Miss Mary Sabilla Hamaker, now the petitioner herein. Before taking his last trip to Germany, in the summer of 1887, at which time he received his share in his sister's estate, Ollschlager told numerous friends about Miss Hamaker, and that one purpose of his trip was to persuade her to marry him, alluding to the fact that she had, for a number of years, been his sister's housekeeper. In this venture he was successful; but on preparing to return, and after she had consented to become his wife, they found that, under the marriage customs prevailing in that part of Germany, the inconvenience and delay incident to their contemplated wedding was greater than anticipated, on account of which they decided to start for America at once, postponing their marriage until their arrival in this country. On embarking decedent registered their names as "Mr. and Mrs. Henry Ollschlager." Petitioner could speak no English, so she states, and therefore left all arrangements to him, testifying to having no knowledge as to how or whether they were registered on the steamer, but that they occupied separate rooms, and as soon as they reached Philadelphia went to the office of some one, whom she supposed, and was led to believe, was an officer duly authorized, under the law, to marry them, and by whom a marriage between her and Ollschlager was solemnized, or, at least, under the ceremony then performed she was led to think, did believe, and at all times since has understood, she became his wife, and, by reason thereof, his widow. On their arrival in Salem, petitioner was introduced by Ollschlager as his wife, and, until his death, was so recognized by all of their acquaintances and friends, comprising the narrow circle in which they moved and lived. His kindred, here questioning the legality of their marriage, visited them occasionally; among them being nieces, who wrote letters to the petitioner, addressing her as "aunt," and otherwise recognizing her as decedent's wife until about the time of his death, prior to which the marriage was not questioned by any of them. Rumors, growing out of statements purporting to come from decedent, about seven or eight years after returning with his bride, were afloat, but were not deemed by the kindred of sufficient importance to be acted upon, socially or otherwise. On his return from Germany Ollschlager told a number of his acquaintances that they were married, and corroborated petitioner's statements to the effect that their marriage was solemnized in Philadelphia, mentioning that it took place before a "squire," or justice of the peace.

Before entering upon a discussion of the testimony, presented for the purpose of neutralizing the evidence adduced by petitioner, some of the legal phases, material to the controversy, will be noted. The first point, the determination of which is essential, in order to reach a definite conclusion, is: Upon whom does the burden of proof, in this case, rest? "The burden of proof," says Mr. Justice Bean ( In re Estate of Megginson, 21 Or. 387, 28 P. 388, 14 L.R.A. 540), "is on the party objecting to the validity of such a marriage," concerning which rule, Bishop, on Marriage and Divorce, § 457, there quoted with approval, says: "When a marriage therefore has once been shown, however celebrated, whether regularly or irregularly, or however proved, whether directly or by circumstantial evidence, the law raises a strong presumption in favor of its legality; so that the burden is with the party objecting throughout, and in every particular, to prove, against the constant pressure of this presumption of law, that it is illegal and void. And it has been considered that the validity of a marriage cannot be tried like any other question of fact which is independent of presumption, because the law, besides casting the burden of proof upon the objecting party, will still presume in favor of the marriage, and this presumption increases in strength with the lapse of time through which the parties are cohabiting as husband and wife. It being for the highest good of the parties, of the children, and of the community, that all intercourse between the sexes in its nature matrimonial, should be such in fact, the law, when administered by enlightened judges, seizes upon all presumptions both of law and of fact, and presses into its service all things which can help it in each particular case, to sustain marriage, and repel the conclusion of unlawful commerce." It is also recognized by our statute (B. & C. Comp. § 788, subd. 30) as a satisfactory presumption, until overcome, "that a man and woman, deporting themselves as husband and wife, have entered into a lawful contract of marriage."

In this connection, however, counsel for the objectors contend it is disclosed by the record that the first relations between the parties were meretricious, by reason of which it is maintained that the rule above invoked does not apply. The weakness of this position lies in assuming a premise not clearly established. It first appears that Ollschlager went to Germany to marry the person whom he brought back with him, and whom he represented as his wife. They, as stated, had endeavored to get married before starting, but, probably on account of the delays and expense incident to ceremonies of that character, or for some other reason satisfactory to each, changed their plans, delaying the wedding until they reached the United States. No evidence whatever is presented tending to, in any way, establish any improper relations between them, further than the deposition received in evidence, showing that, when taking the steamer for this country, their names were registered as "Mr. and Mrs. Henry Ollschlager." Of this the petitioner testifies she has no knowledge; that, being unconversant with the English language, she left every arrangement relative to the trip to decedent; but that they occupied different rooms and were married when they reached Philadelphia. There is no proof that either were persons of a character of whom meretricious relations might be inferred, and their subsequent unquestioned reputation, in this respect, develops a forcible presumption that the inference sought to be drawn from the fact that some one on the steamer, crossing the Atlantic during 1887, registered as indicated, the identity of whom is not clearly established, is without merit. Again, whatever deduction may be made from this incident, the weight of authority is to the effect that even though libidinous relations may, in the first instance, be established, proof of subsequent marriage, whether solemnized in strict conformity with law or not, if entered into in good faith, and under the belief that the ceremony was legal, overcomes any presumption arising out of such unconventional relations, shifting thereby the burden of proof upon the party questioning the marriage. 8 Ency.Ev. 450; Moore on Facts, § 549; Gall v. Gall, 114 N.Y. 109, 21 N.E. 106; White v. White, 82 Cal. 427, 439, 23 P. 276, 7 L.R.A. 799; In re Homeyards' Estate, 10 Pa.Dist.R. 730.

This brings us to a consideration of the testimony by which it is sought to contravene the proofs by which a prima facie case is made out in petitioner's favor. The first indication disclosed of any attempt on the part of Ollschlager to deny his marriage appears from the testimony, admitted without objection, of J.M. Widmer, in reference to a conversation with the decedent, concerning which Widmer says: "The earliest I recollect, I don't remember the year it was quite long years...