Stamper v. Stanwood
| Decision Date | 09 July 1959 |
| Citation | 339 Mass. 549,159 N.E.2d 865 |
| Parties | G. Clifford STAMPER v. Milton S. STANWOOD. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Francis B. Turner, Boston (James O. Smith, Boston, with him), for petitioner.
William S. Monahan, Braintree (Louis L. Bobrick, Cambridge, with him), for respondent.
Before WILKINS, C. J., and RONAN, SPALDING, COUNIHAN and WHITTEMORE, JJ.
This is a petition by G. Clifford Stamper for his appointment as administrator of the estate of Walter A. Burnham, the intestate. Against this petition appearances were entered by several persons including the respondent, Milton S. Stanwood. The petitioner then moved to have the appearances struck out. After a hearing, the Probate Court allowed the motion to strike out and appointed the petitioner administrator of the estate. The respondent has appealed.
At stake is his right to share in the estate of the intestate who died in Somerville on May 2, 1957, apparently leaving as heirs and next of kin only first cousins. No question is raised as to the petitioner's relationship to the intestate which he traces through his father's parents, Abbie and William F. Stamper, who were the parents of Esther Stamper Burnham, the intestate's mother and the petitioner's aunt. The respondent is the son of Etta Burnham Stanwood, one of ten children of the union of Margaret Reiter and Alfred Augustus Burnham, and he claims through Alfred and Margaret who were the parents of Gorham Burnham, the intestate's father and the respondent's uncle. The relationships are set forth in the chart below.
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ABBIE AND WILLIAM F. STAMPER MARGARET (nee REITER) and ALFRED
AUGUSTUS BURNHAM
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GEORGE ESTHER and GORHAM BURNHAM ETTA
STAMPER STANWOOD
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G. CLIFFORD STAMPER WALTER A. BURNHAM MILTON S. STANWOOD
petitioner intestate respondent
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The respondent is one of eight claimants similarly situated, whose claims depend upon the validity of a purported marriage between Alfred and Margaret. See Parkman v. McCarthy, 149 Mass. 502, 21 N.E. 760; Sanford v. Marsh, 180 Mass. 210, 62 N.E. 268; Newhall, Settlement of Estates (4th ed.) § 230. The respondent does not contend that the petitioner was ineligible for appointment as administrator, but claims that, like the petitioner, he was a first cousin of the intestate and entitled to be heard upon the appointment.
Where, as in the present case, all the evidence of substantial importance is documentary and what little oral testimony there is consists almost entirely of explanations and descriptions of the documentary evidence, we are in as good a position as was the probate judge to decide questions of fact. Consequently we may decide such questions upon our own judgment unaffected by the findings below. Veazie v. Staples, 309 Mass. 123, 127, 33 N.E.2d 262, and cases cited; Pitman v. Pitman, 314 Mass. 465, 475, 50 N.E.2d 69, 150 A.L.R. 509; Fiduciary Trust Co. v. Mishou, 321 Mass. 615, 631, 75 N.E.2d 3; Gally, Petitioner, 329 Mass. 143, 145, 107 N.E.2d 21.
On October 25, 1850, Alfred Augustus Burnham married one Elizabeth Lane at Gloucester, Massachusetts. There were no children of this marriage. There is a record that less than four years later, on April 15, 1854, one Augustus S. Burnum went through a ceremony of marriage with one Margaret Reiter at Nashua, New Hampshire. It is alleged by the respondent, and we agree, that the parties to this marriage were the same Alfred Augustus Burnham and Margaret Reiter who thereafter lived together as husband and wife until the death of Alfred on November 12, 1899, their upon resulting in ten children, among whom were Etta Burnham Stanwood and Gorham Burnham, respectively the mother and uncle of the respondent. A copy of the marriage record indicates that 'Augustus' gave his residence as Bangor, Maine, and that the residence of Margaret was listed as Guysborough, See Inhabitants of Shutesbury v. Inhabitants of Hadley, 133 Mass. 242. A careful search revealed that no person with the name of Augustus S. Burnum was residing in or around Bangor, Maine, in 1854. Margaret's residence was in fact Guysborough, Nova Scotia. Her death certificate shows that she was a native of Guysborough, Nova Scotia; and if the marriage certificate was handwritten the letters could easily be mistaken for Margaret was also listed as a native of Guysborough on the death certificate of a child of Alfred and herself in 1860. There was no 'Guysborough' in New Hampshire. The Massachusetts census of 1855 indicates that a family unit composed of Alfred and Margaret Burnham and a child was living in Gloucester at that time. Margaret's birthplace is designated on it as Nova Scotia. And the census of 1880 shows Alfred and Margaret Burnhan and six children living together in Gloucester.
It is not disputed that the 1854 marriage of Alfred and Margaret was bigamous as to him, there being no evidence of the death or divorce of his first wife, Elizabeth. See present G.L. c. 207, § 4; Commonwealth v. Mash, 7 Metc. 472; Commonwealth v. Ross, 248 Mass. 15, 18-19, 142 N.E. 791. In fact there was no evidence of the whereabouts of Elizabeth since shortly after her marriage. It becomes important, then, to determine whether the marriage of Alfred and Margaret subsequently became valid under the provisions of St.1895, c. 427 (now G.L. c. 207, § 6), which read: 'Where a marriage contract has been entered into with due legal ceremony and the parties thereafter live together as husband and wife; and where at the time of such marriage ceremony a former husband or wife of one of the parties was living, and the former marriage with such person was still in force; and where such subsequent marriage contract was entered into by at least one of the parties in good faith, in the full belief that the former husband or wife was dead, or that such former marriage had been annulled by divorce; or without knowledge on the part of one of them of such former marriage; and where the impediment to such subsequent marriage existing by reason of the former marriage is removed by the death of the other party to the former marriage, or by a proper decree of divorce, and the parties to such subsequent marriage then continue living together as husband and wife in good faith, on the part of at least one of them, they shall be taken and deemed to have been legally married from and after the removal of such impediment, and the issue of such subsequent marriage shall be deemed to be the legitimate issue of both parents.' By St.1896, c. 499, this statute was made applicable to cases in which the impediment to the marriage was removed prior to its enactment.
We think that the marriage was entered into by Margaret in good faith. See Glass v. Glass, 114 Mass. 563; Lufkin v. Lufkin, 182 Mass. 476, 65 N.E. 840; Gardner v. Gardner, 232 Mass. 253, 258, 122 N.E. 308; Carmichael v. Carmicheal, 324 Mass. 118, 121-122, 85 N.E.2d 229; Fraser v. Fraser, 336 Mass. 597, 600-601, 147 N.E.2d 165. If there were evidence that Margaret had been domiciled in this Commonwealth prior to her marriage and that she married outside the Commonwealth in order to evade our laws, we should be constrained to hold otherwise. See Levanosky v. Levanosky, 311 Mass. 638, 42 N.E.2d 561; Fraser v. Fraser, 334 Mass. 4, 7-8, 133 N.E.2d 236. It is significant that Margaret, following the ceremony at Nashua, lived with Alfred in Gloucester as his wife for over forty-five years until his death in 1899, and bore him ten children. See G.L. c. 207, § 47; Banister v. Henderson, Quincy, 119; Finer v. Steuer, 255 Mass. 611, 620-621, 152 N.E. 220; Vergnani v. Guidetti, 308 Mass. 450, 456, 32 N.E.2d 272; Fraser v. Fraser, 336 Mass. 597, 601, 147 N.E.2d 165. These facts are supported by undisputed documentary evidence. Every presumption is in favor of her good faith, Harding v. Townsend, 280 Mass. 256, 261, 182 N.E. 369, see Gardner v. Gardner, 232 Mass. 253, 257-258, 122 N.E. 308, to the end that what has been called 'the progressive policy of our law,' namely, the '[r]emoval of the obstacles to the legitimation of innocent children, who have no responsibility for the circumstances of their birth,' may be effectuated. Green v. Kelley, 228 Mass. 602, 605, 118 N.E. 235, 237. See Meyers v. Pope, 110 Mass. 314, 316. In the instant case we cannot say that Margaret lacked the requisite good faith on meager evidence of an event which occurred more than a century ago.
Evidence arguably impugning her good faith, however, is found in a ninety-nine year lease from Alfred to the city of Gloucester, executed in 1880, twenty-six years after the marriage, and a bill in equity brought by Margaret in 1901, about two years after Alfred's death. There was no evidence...
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