Potter v. Clapp

• Decision Date: 16 June 1903
• Citation: 203 Ill. 592,68 N.E. 81
• Parties: POTTER et al. v. CLAPP.
• Court: Illinois Supreme Court

203 Ill. 592

68 N.E. 81

POTTER et al.

v.CLAPP. ^*

Supreme Court of Illinois.

June 16, 1903.

Appeal from Circuit Court, Cook County; Joseph P. Roberts, Judge.

Bill by Mary Ann Clapp against Georgianna Potter and others. From a decree for complainant, defendants appeal. Reversed in part.F. P. Read, for appellants.

A. N. Tagert, for appellee Mary Ann Clapp.

This was a bill in chancery, filed by Mary Ann Clapp in the circuit court of Cook county as widow of James H. Clapp, deceased, against Georgianna Potter, Annie L. Wilcox, and Albert G. Clapp, his children by a former marriage, for the assignment of dower and homestead in the real estate of which he died seised, the establishment of a resulting trust in said real estate to the extent her money had paid therefor, and for an accounting. Mary M. Clapp, the divorced wife of the said James H. Clapp, intervened, by leave of court, as a claimant for dower. Answers, a cross-bill, and replications having been filed, the case was referred to a master, and, his report having been filed, a decree was entered in accordance with the recommendations thereof, and the children of James H. Clapp have prosecuted an appeal.

It appears from the pleadings, evidence, and master's report that James H. Clapp, on May 12, 1856, was married to Mary M. Dean at Taunton, Mass., by a ceremonial marriage; that said James H. and Mary M. thereafter lived together as husband and wife at Providence, R. I., and other places in that vicinity, for the period of about 19 years; that there was born to them during that period three children, viz., Georgianna, Annie L., and Albert G., who are defendants to this bill; that in September, 1875, said James H. Clapp and Mary M. separated,and soon thereafter Clapp located in Chicago. It further appears that the complainant, Mary Ann, in the year 1862 (her maiden name being Mary Ann Hartnett), married one William S. Seamans, and lived with him at Smithfield, R. I., for four or five years, when they separated, and for a number of years she resided with her sister, Margaret Coombs, at Providence, R. I.; that in August, 1875, she drew from the Providence Institution for Savings her entire deposit, amounting to $1,437.31, and some time thereafter went to Chicago; that about the year 1876 James H. Clapp and Mary Ann Seamans were living together as husband and wife in the city of Chicago, where they continued to reside as husband and wife until the death of James H. Clapp, on December 1, 1897; that William S. Seamans died in an insane asylum in the state of Rhode Island, October 30, 1883, and on July 21, 1885, the complainant (under the name of Mary A. Seamans) and James H. Clapp were married at Portland, Me., by Melville A. Floyd, a justice of the peace; that Mary M. Clapp, at the October term, 1887, of the Supreme Court of Rhode Island, was divorced from James H. Clapp on the ground of desertion, on service by copy of bill in Chicago upon James H. Clapp. The complainant has no children, and was about 58 years of age at the time of the death of James H. Clapp. There is no direct evidence in the record which shows that the complainant knew that James H. Clapp had a wife living while she was living with him as his wife, or that James H. Clapp knew that the complainant had a husband living during any part of that period. Neither does it appear from any direct evidence that William S. Seamans was ever divorced from the complainant, or she from him, or that James H. Clapp was divorced from his wife Mary M. prior to July 21, 1885. James H. Clapp seems to have had no communication with any of his family from about 1876 to 1887, when his son, Albert G., receiving information which led him to believe his father was living in Chicago, wrote him, and after that James H. Clapp corresponded quite regularly with his children up to the time of his death. He visited them and they visited him, and his son, Albert G., attended his funeral. The complainant, from the time she commenced living with James H. Clapp, bore his name, was called by him his wife, and was so recognized by his neighbors and acquaintances, and in his letters to his children he referred to her as his wife, and when they visited at his house in Chicago he spoke of her as his wife, and she was recognized and treated by all as his wife. This relation was continued after the death of Seamans, in 1883, after the ceremonial marriage in 1885, and the divorce of Mary M. Clapp, in 1887.

In 1883 the real estate in controversy, which consists of two 25-foot lots located in the city of Chicago, which is now worth, with the improvements thereon, from $12,000 to $15,000, and produces a rental of about $85 per month, was purchased for $4,000, and title taken in the name of Mary Ann Clapp. About two-thirds of the purchase price was paid in cash, and a deed taken for the premises, subject to a mortgage for the balance of the purchase price, which was subsequently paid. In 1885 Mary Ann Clapp and James H. Clapp conveyed said real estate to Henry D. Nichols, and he immediately conveyed the same to James H. Clapp, and the legal title remained in Clapp at the time of his death. After the purchase of the property a threestory brick flat building and a story-and-a-half frame cottage were erected, and the two-story frame building standing upon the premises at the time of the purchase, the lower story of which was used by Clapp as a residence and the upper story of which was rented, was repaired. The cottage was not completed at the time of Clapp's death, and was afterwards completed by complainant. At the time Albert G. Clapp was in Chicago, in attendance upon his father's funeral, complainant stated to him that the cottage was not completed, that there were debts unpaid, and advised with him as to what had best be done toward a settlement of the estate of James H. Clapp. After talking with an attorney he stated to the complainant, in substance, that she was entitled, as widow, to administer upon the estate, and that she, being in Chicago and the heirs all nonresidents, could better than they rent the real estate, and also advised that the cottage then commenced be completed, and that her rights and the rights of the heirs could be subsequently adjusted. The complainant took out letters of administration in the probate court of Cook county, as widow, upon the estate of James H. Clapp, and filed an inventory, appraisement, and appraisers' estimate for widow's award. Afterwards the heirs appeared in the probate court and filed objections to the approval of the inventory and appraisement and to the allowance of the widow's award, one ground of objection to the allowance of the widow's award being that the complainant was not the lawful wife of said James H. Clapp at the time of his death. The court overruled said objection, approved the inventory and appraisement, and allowed the widow's award to complainant, which order remains in full force and unappealed from. In the title papers to the real estate in which the complainant claims dower and homestead, and through which the defendants claim title, the complainant is designated as the wife of James H. Clapp. Only one, however, a release of a mortgage, bears date subsequent to 1887, the date of the divorce of Mary M. Clapp.

HAND, C. J. (after stating the facts).

The first question which is presented for consideration upon this record is, was the complainant, Mary Ann Clapp, the lawful wife of James H. Clapp at the time of his death? It clearly appears that at the time James H. Clapp and Mary Ann commenced living together in the city of Chicago, ostensibly as husband and wife, James H. Clapp had a lawful wife then living, and that Mary Ann had a lawful husband then living. Their cohabitation was therefore meretricious in its inception, and the presumption of law is that it so continued so long as they continued to live and cohabit together, unless the proof shows that the evil purpose of the parties subsequently changed, and that the cohabitation lost its unlawful character and became matrimonial in its intent and character, which intent and character may be shown by direct or circumstantial proof, and would be evidenced by a lawful marriage between the parties subsequent to the removal of the disability of each to enter into a lawfulmarriage contract. Cartwright v. McGown, 121 Ill. 388, 12 N. E. 737,2 Am. St. Rep. 105;Robinson v. Ruprecht, 191 Ill. 424, 61 N. E. 631;Manning v. Spurck, 199 Ill. 447, 65 N. E. 342. At the time of the ceremonial marriage between James H. Clapp and Mary Ann, on the 21st day of July, 1885, William S. Seamans, the former husband of Mary Ann, had died, and the impediment to her marriage had been removed. The wife of James H. Clapp, however, was then living, and she did not become divorced from him until more than two years after that date, and was still his lawful wife, unless he had before the date of said ceremonial marriage been divorced from her, as the rule universally recognized by the courts is that a marriage between parties, where either the man or the woman has a lawful wife or husband living at the time of the marriage, is absolutely void. Schmisseur v. Beatrie, 147 Ill. 210, 35 N. E. 525. True it is, at the time of the marriage of the parties in the state of Maine, the proof does not show that Mary Ann then knew that James H. Clapp had a lawful wife living; but Clapp knew that fact, unless he had been divorced from her, and his knowledge made the continuation of the relation between the parties meretricious, and the ceremonial marriage on the 21st of July, 1885, between the parties, was void, unless James H. Clapp had been before that time divorced from Mary M. Clapp. Mary M. Clapp did not obtain a divorce from Clapp at her suit until in October, 1887; but the record is silent as to the fact whether or not James H. Clapp, prior to the time of the ceremonial marriage with Mary Ann, had been divorced from Mary M. In Cartwright v....