Pegg v. Pegg
| Decision Date | 11 April 1908 |
| Citation | 115 N.W. 1027,138 Iowa 572 |
| Parties | MARGARET PEGG, Appellant, v. JULIUS PEGG, Administratrix of the Estate of ELIAS W. PEGG, Deceased, ET AL |
| Court | Iowa Supreme Court |
REHEARING DENIED, MONDAY, JUNE 8, 1908.
Appeal from Harrison District Court.--HON. O. D. WHEELER, Judge.
ACTION in equity by Margaret Pegg, claiming to be the widow of Elias W. Pegg, deceased, to have her right to one-half the property of the decedent confirmed in her as his widow, to have said property partitioned, and to have defendants enjoined from interfering with plaintiff in the enjoyment of the property alleged by her to have been occupied by her and decedent at his death as a homestead, and asking other equitable relief. Defendants, who are the heirs at law of decedent, one of them having been appointed administrator of his estate, denied the allegations of the petition, and specifically denied that plaintiff is the widow of decedent. After trial on the merits the court dismissed plaintiff's petition, and she appeals.
Affirmed.
Cochran & Egan, for appellant.
Roadifer & Arthur and C. A. Bolton, for appellees.
In 1882 Elias W. Pegg, an unmarried man, who had at one time been a school teacher, and who was then a farmer living in Harrison county, employed in his home as housekeeper the plaintiff then and since known as Mrs. Margaret Asher. She brought with her to his house two infant daughters, who lived with him until their marriage. According to her testimony she had been married to one Asher of Tama county, and had been left by him in 1875, since which time she had not heard from him. The presumption that he was dead in 1882 is not contradicted by any evidence in the record. From 1882 until 1885 decedent and plaintiff occupied the ostensible relation of employer and employe, and it appears that there were written contracts between them of employment specifying the wages per week to be paid plaintiff, and showing by indorsement the payment of various sums. Twice in 1885 these two were arrested and brought before a justice of the peace in the county on the charge of illicit cohabitation, and on one of these occasions a written contract of employment was introduced in evidence for defendants. On the day the second of these prosecutions was dismissed, as the evidence tends to show, an instrument was drawn up by their lawyer and signed by them in his office purporting to be a marriage contract between them, by which they agreed to take each other as lawful husband and wife, and live together as such during life. The original of this contract was not produced on the trial, but it was proved by copy and by the testimony of witnesses who had seen and read it, and who testimony to its contents as corresponding with the copy. One of the contentions for appellees is that the existence of this contract is not established, and the court below so found, but we think the evidence established its execution and its existence in the home of decedent for many years and until near the time of his death in 1906; plaintiff being an occupant of his home during the entire time. It may be conceded that the circumstance under which the copy is claimed to have been made by Mrs. Wilke, one of plaintiff's daughters, in 1902, and the lack of care with reference to its preservation, in view of the purpose for which she testified she made it -- to preserve some evidence of her mother's marriage to decedent -- were peculiar, but we are so well satisfied that there was such a contract, and that its contents were substantially those of the copy introduced in evidence, that we do not feel justified in giving this phase of the case any further attention.
Counsel for appellees further contend, however, that this contract, so called, was entered into merely as a blind to be used to prevent or defeat further prosecutions for illicit cohabitation, that the relations of the parties had been and continued to be meretricious and illicit, and that they never assumed toward each other the relations of lawful marriage. It must be conceded that the voluntary signing of a written instrument of agreement to regard each other as husband and wife does not alone create the relation of marriage between a man and a woman. Although marriage is defined in our Code as a civil contract (section 3139), nevertheless the methods in which marriages must be solemnized are expressly prescribed (section 3145), and the signing of a contract is not one of them. We recognize so-called common-law marriages as valid; but for such a marriage to be valid there must be a present agreement to be husband and wife, followed by cohabitation as such. Blanchard v. Lambert, 43 Iowa 228; McFarland v. McFarland, 51 Iowa 565, 2 N.W. 269; Brisbin v. Huntington, 128 Iowa 166, 103 N.W. 144. That a mere written or oral agreement to be husband and wife, without present intention to assume that relation in fact, does not constitute a marriage between the parties, especially if the agreement is entered into for some other purpose, is well settled. Schouler, Domestic Relations, section 26; 1 Bishop, Marriage and Divorce, sections 328-335; Rodgers, Domestic Relations, section 96; Clancy v. Clancy, 66 Mich. 202 (33 N.W. 889).
The question for us to decide, therefore, under the evidence, is whether these two persons cohabited as husband and wife -- that is, intending to occupy that relation to each other -- or whether their relations continued to be or became illicit after the agreement was signed; for that they did cohabit admits of no question. No doubt proof of the agreement followed by cohabitation would presumptively establish a common-law marriage, and we must consider the various circumstances relied upon to show a contrary intent. Public repute may be considered in such cases, but here there is no controlling evidence of this kind one way or the other. Before the contract, there had been much neighborhood comment of an unfavorable character as to the relations of these parties, and to some extent this continued, and some who did not regard the relations of the parties as illicit considered plaintiff to be decedent's housekeeper merely, and not his wife. Common repute to be significant should be uniform. Rodgers, Domestic Relations, section 94. The public conduct of the parties toward each other is entitled to...
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