Peirce v. Peirce

• Citation: 39 N.E.2d 990,379 Ill. 185
• Decision Date: 11 March 1942
• Docket Number: No. 26400.,26400.
• Parties: PEIRCE et al. v. PEIRCE.
• Court: Supreme Court of Illinois

379 Ill. 185

39 N.E.2d 990

PEIRCE et al.

v.PEIRCE.

No. 26400.

Supreme Court of Illinois.

Jan. 20, 1942.

Rehearing Denied March 11, 1942.

Appeal from Appellate Court, Second District, on Appeal from the Circuit Court, Jo Daviess County; Harry E. Wheat, Judge.

Proceeding in the matter of the estate of Harry M. Peirce, deceased, between Augustus Wierich Peirce and Richard K. Peirce, and others. Letters of administration were issued to Richard K. Peirce, and Augustus Wierich Peirce filed a petition to have such letters revoked. From an adverse judgment on appeal from county court, Augustus Wierich Peirce appealed to the Appellate Court. From a judgment of the Appellate Court, 310 Ill.App. 481, 34 N.E.2d 564, reversing the judgment, Richard K. Peirce, administrator, and others, appeal.

Judgment of Appellate Court reversed, and judgment of circuit court affirmed.Louis A. Nack and Donald M. Eaton, both of Galena, for appellants.

F. J. Campbell, of Galena, and James L. Coburn, of Elizabeth, for appellee.

SMITH, Justice.

This case involves a contest over the right to administer the estate of Harry M. Peirce, deceased. Deceased was twice married and children were born to each union. The contest is between Augustus Wierich Peirce, a son by the first wife, and Richard K. Peirce, as son by the second wife.

The undisputed facts show that deceased was legally married to Theresa Thompson in the State of Montana on June 30, 1892. One child was born of that marriage, the appellee here. In 1905, and while still married to Theresa Thompson, deceased, while en route to California by train, became acquainted with Era Peirce who resided on a farm near Monmouth, Illinois. He subsequently visited her at her home and, in 1907, she went to Mexico, where she met him by prearrangement and they were married by a religious ceremony. Deceased had informed her of his prior marriage, but told her that he had obtained a divorce. Her name is given in the record only as Era Peirce. After two months in Mexico, deceased and his new wife went to Havana, Cuba, where he was employed by a New York firm. After four months in Cuba, they moved to New York, and in December, 1908, to Texas. For the next six years they lived in Texas, and in 1915 returned to Era Peirce's home near Monmouth. From 1908 to 1915, four children were born to Harry M. and Era Peirce.

Leaving Era Peirce in Illinois, deceased went west to look for business opportunities. One of the States which he visited was Nevada, and while there he instituted suit for divorce against Theresa Thompson Peirce. She appeared and filed an answer. This suit resulted in a decree of divorce in favor of Theresa Peirce, and against Harry M. Peirce. By the decree she was awarded $25 a month alimony. Era Peirce, who had been in Illinois during all this time and knew nothing of the divorce proceedings, at his request joined him in Nevada. Thereafter they remained in that State, living as husband and wife, for about a month during the summer of 1916. Deceased failed to locate a position, and they returned to Chicago where he obtained a job. Thereafter they moved to Pontiac, and in 1917 to Galena, where they lived until 1920. At that time she left him and returned to Monmouth with the children, because he was not supporting her.

Throughout the entire time from 1907 to 1920 deceased represented to the world that Era Peirce was his wife and, by his conduct, that their four children were legitimate; they lived together as husband and wife, except while he was away looking for business opportunities. Era Peirce knew nothing of the Nevada divorce until after his death, when Theresa Thompson Peirce presented a claim against his estate for unpaid alimony.

Harry M. Peirce died in 1939, a resident of Galena. Upon petition of Richard K. Peirce, his son by Era Peirce, letters of administration were issued by the county court of Jo-Daviess county to him. Augustus Wierich Peirce then filed a petition to have such letters revoked on the ground that Richard K. Peirce was not a son and heir of Harry M. Peirce, deceased. The petition was heard and denied by the county court and an order entered, finding that Era Peirce was the widow and that her four children were the children and heirs of Harry M. Peirce. The same result was reached by the circuit court on appeal. That court found and adjudged that Era Peirce was the widow and that as such widow, she, together with appellee, and the four children born to Harry M. Peirce and Era Peirce, constituted his heirs-at law. On appeal to the Appellate Court for the Second District the judgment of the circuit court was reversed. Leave to appeal was granted by this court.

The sole question involved is whether or not Richard K. Peirce and the three other children of Era Peirce are legitimate children of the deceased. In ruling that they were not, the Appellate Court placed its decision upon the fact that Era Peirce and deceased were never legally married, since at the time of their marriage deceased had not yet been divorced from his first wife. Appellant, Richard K. Peirce, does not contest the fact that the marriage of Era Peirce to deceased was originally void, but argues that under the Nevada law, the marriage became valid when the disability was removed by the divorce in 1916, and that the children thereupon became legitimate children of Harry M. Peirce.

In Illinois it was provided by statute, both prior and subsequent to the passage of the Rrobate act, for the legitimization of children born out of wedlock where the parents subsequently intermarry and the father acknowledges his paternity. Ill.Rev.Stat.1939, chap. 39, par. 3; Ill.Rev.Stat.1941, chap. 3, par. 163. Appellee contends that the only marriage which esisted between Era Peirce and deceased was a common law marriage, and that common law marriages are no longer recognized in Illinois, even though made outside of the State and valid where entered into. Appellants insist that a common law marriage existed in Nevada which must be recognized by the courts of Illinois.

The real question, however, is the legitimacy of the children, not the validity of the marriage; the legality of the marriage is only important as affecting the question of legitimacy. It was held in McNamara v. McNamara, 303 Ill. 191, 135 N.E. 410, 413, that the status of a child as heir depends upon his legitimacy, as determined by the law of the State in which he has his domicile, and not by the law of Illinois. Hence if, subsequent to deceased's divorce from his first wife, his children were legitimatized by the law of Nevada, they thereupon became legitimatized in Illinois. It is not against the public policy of this State to recognize legitimacy conferred by the law of Nevada, although the method whereby legitimacy is there obtained is not available in Illinois. As was said in McNamara v. McNamara, supra: ‘We must recognize the status of John Hamilton McNamara as created by the law of California to be legitimate from his birth, and that being so, he is the sole heir of his father and entitled to real estate in this state. This is not prohibited either by any express provision of law or by public policy. It is not contrary to public policy, as manifested by statutes. Section 15 of the act concerning bastardy (Harker's Stat. p. 349) provides that, if the mother of any bastard child and the reputed father shall at any time after its birth intermarry, the child shall in all respects be deemed and held legitimate. That rule was applied, in connection with the Statute of Descent, in Hall v. Gabbert, 213 Ill. 208, 72 N.E. 806. The Legislatures of California and of this state,...