Pittinger v. Pittinger

• Decision Date: 04 March 1901
• Citation: 64 P. 195,28 Colo. 308
• Parties: PITTINGER v. PITTINGER.
• Court: Colorado Supreme Court

64 P. 195

28 Colo. 308

PITTINGER v. PITTINGER.

Supreme Court of Colorado

March 4, 1901

Appeal from district court, Arapahoe county.

Action by Lizzie Pittinger against Margaret Pittinger. From a judgment in favor of defendant, plaintiff appeals. Affirmed.

The subject-matter of controversy is the right to the proceeds of two policies of insurance upon the life of one John Pittinger, deceased, which the association issuing them paid into the registry of the trial court, leaving the parties to this action to litigate the question as to which is entitled to such fund. Appellant claims this fund as the legal beneficiary and as the niece, and appellee as the legal beneficiary and as the widow, of deceased. The deceased was married in Pennsylvania, in 1876, to one Emma Koser. They separated in 1879. He appears to have entertained suspicions regarding her conduct, which, if based upon facts, justified his act in leaving her. They never lived together afterwards or communicated with each other. Deceased shortly afterwards came to Colorado, and in 1885 married appellee. They lived together as husband and wife until in the spring of 1898 when separation took place. Reconciliation was effected a few months later. After his marriage to appellee, and in 1885, he insured his life for her benefit in the Locomotive Engineers' Mutual Life & Accident Association. He delivered this policy to her. In 1894, for reasons which are immaterial, it was surrendered, and two issued in favor of appellee, which were also delivered to her. May 23, 1898, he returned these certificates of insurance to the association and had new ones issued in favor of appellant. This was without the knowledge or consent of appellee. After the reconciliation between appellee and himself, he informed her of his act, and promised to return the certificates and have them reissued in her favor. Shortly afterwards he met his death, without having made the change. At the time of the issue of the policies in favor of appellee, there was no provision in the charter or by-laws of the association permitting a change in beneficiaries without the consent of the latter; nor did such policies contain such a provision. In May, 1896, such a by-law was adopted. It appears that his first wife remarried, or went through the form of a marriage ceremony, in 1883, with one Harper, without ever having obtained a divorce, and thereafter lived with him as his wife. She testifies that deceased never obtained one from her, and that no papers for that purpose were ever served upon her. Other witnesses on behalf of appellant testified to the marriage relation between herself and deceased, and state that, to their knowledge, no divorce was ever obtained. Over the objection of appellant, appellee testified that deceased had stated to her that he had been married, but was divorced from his former wife and supposed her dead. Letters were also permitted to be introduced upon her part from deceased, in which he addressed and wrote to her as his wife. The judgment of the lower court was adverse to appellant, and she brings the case here for review.

Talbot, Denison & Wadley, for appellant.

Patterson Richardson & Hawkins, for appellee.

GABBERT J. (after stating the facts).

By the record in this case two propositions are presented for determination, upon which the rights of the parties depend: (1) Does the evidence establish that appellee was not the wife of deceased? If this is answered in the negative, then: (2) Were her rights devested by the surrender of the certificates and the issuance of new ones, naming appellant as beneficiary?

Appellee having been named as the beneficiary in the original certificates, and designated therein as the wife of deceased she is presumed to be a legal one, and bear the relation to the insured designated (Knights of Honor v. Davis, 26 Colo. 252, 58 P. 595); so that, to the extent that the rights of appellant are dependent upon the fact that appellee was not the wife of deceased, the burden of proof rested with her to establish this issue by a preponderance of the evidence. On this subject the first wife testifies to the effect that she was married to deceased in 1876. She took no steps herself to obtain a divorce, and states that no papers for that purpose were ever served upon her. This is the only testimony tending to establish that the marriage relation between herself and deceased was not dissolved, as the evidence of the other witnesses on behalf of appellant on this subject is immaterial. As against this testimony, we have the undisputed evidence to the fact that a marriage ceremony was regularly solemnized between appellee and deceased; and the question squarely presented is, does the proof of the existence of the former marriage relation of deceased, and the testimony of the former wife, establish that the marriage of appellee was invalid? No man is presumed to do an unlawful act. When a marriage has been shown, the law raises a strong presumption in favor of its legality. By some of the authorities this presumption is said to be one of the strongest known to the law. Its strength increases with the lapse of time. This presumption arises because the law presumes morality and not immorality, and that every intendment is in favor of matrimony. Lampkin v. Insurance Co., 11 Colo.App. 249, 52 P. 1040; 2 Nels. Div. & Sep. § 580; Boulden v. McIntire (Ind. Sup.) 21 N.E. 445; In re Rash's Estate (Mont.) 53 P. 312; Teter v. Teter, 101 Ind. 129; Johnson v. Johnson, 114 Ill. 611, 3 N.E. 232. This presumption applies with peculiar force in favor of one who is unable to prove affirmatively that the man with whom she entered into the marriage relation in good faith was divorced from a former wife. Appellee was not acquainted with deceased until she met him in Colorado, and, except for the presumption in favor of her innocence, there would be imposed upon her an unreasonable burden if she is required to show that prior to her contracting marriage with the assured he had been divorced. It is contended on behalf of appellant that, the marriage of deceased to his first wife having been shown, this is sufficient to overcome the presumption in favor of the legality of the marriage between deceased and appellee. While it is true that it is a presumption of law that a fact continuous in its...