Thomson v. Thomson et al.

• Decision Date: 15 June 1942
• Docket Number: No. 20121.,20121.
• Parties: MARTHA S. THOMSON, RESPONDENT, v. EARL P. THOMSON, ADMINISTRATOR, GRACE RICHARDSON, APPELLANTS.
• Court: Missouri Court of Appeals

163 S.W.2d 792

MARTHA S. THOMSON, RESPONDENT, v. EARL P. THOMSON, ADMINISTRATOR, GRACE RICHARDSON, APPELLANTS.

No. 20121.

Kansas City Court of Appeals, Missouri.

June 15, 1942.

Appeal from Jackson Circuit Court. — Hon. Albert A. Ridge, Judge.

AFFIRMED.

William B. Teasdale for appellant, Grace Richardson.

Frank H. Floyd and H.G. Pope for appellant, Earl P. Thomson, Administrator.

(1) Section 3364, Revised Statutes of Missouri, 1939, provides that previous to any marriage in this State, a license for that purpose shall be obtained from the officer authorized to issue the same and that no marriage hereafter contracted shall be recognized as valid unless such license has been previously obtained and unless such marriage is solemnized by a person authorized to solemnize marriages. Common-law marriages hereafter contracted shall be null and void. Secs. 3363, 3364, 3365, 3366, R.S. Mo. 1939; In re Wilds Estate, 90 S.W. (2d) 805; Offeld v. Davis (Va.), 40 S.E. 910, 914. (2) The court erred in refusing to give the instructions or declarations requested by Grace Richardson and Earl P. Thomson, in the nature of demurrers at the close of claimant's evidence and at the close of all the evidence and in giving declarations of law numbers 1 and 2, at the instance and request of claimant, Martha S. Thomson. Collins v. Hoag & Rollins, Inc. (Neb.), 241 N.W. 766; Walden v. Walden, 241 N.W. 766; In re Elliott's Estate (Cal.), 132 Pac. 439. (3) The Legislature may prescribe who may marry, the age at which they may marry, the procedure and form essential to constitute a marriage and the effect on property rights of the parties. 38 C.J. 1275; Wagoner v. Wagoner, 287 Mo. 567, 229 S.W. 1064, 1070; Wylie v. Wylie, 75 Ind. App. 456, 123 N.E. 252, 18 R.C.L. 387. (4) Where an ostensible marriage is void ab initio no civil rights can be secured thereby, and it may be inquired of in any court where rights are asserted under it, and after the death of either or both parties. 38 C.J. 1280; Henderson v. Henderson, 265 Mo. 729; Higgins v. Breen, 9 Mo. 293, (497). (5) A marriage cannot arise from the mere cohabitation of two persons who are generally reputed to be husband and wife; such cohabitation and reputation are merely evidence of the existence and reality of the consent. 38 C.J. 1299, sec. 57; Collard v. Burch, 138 Mo. App. 94; Bishop v. Brittain Inv. Co., 229 Mo. 699, 725-731. (6) The burden of proving a marriage rests on the party who asserts it. 38 C.J. 1321; Perkins v. Silverman, 284 Mo. 238, 223 S.W. 895; Imboden v. Trust Co., 111 Mo. App. 220; Heger v. Bunch, 12 S.W. (2d) 459. (7). Where a marriage is set up as having been performed at a particular time or place or by a particular form of ceremony, and the evidence fails to support the assertion, the party asserting the marriage will not be allowed to rely on cohabitation and reputation to establish it. 38 C.J. 1325, par. 895; Eldred v. Eldred, 97 Va. 406, 34 S.E. 484; Bowman v. Little (Md.), 61 Atl. 223; Brown v. Texas & P.R.R. Co. (La.), 138 So. 221, 223.

Louis L. Kirchner and Don Bush for respondent, Martha S. Thomson.

(1) The production of the marriage record is not the only method of proving a valid marriage. Sec. 3364, Chap. 20, R.S. 1939; In Re Hinman, 131 N.Y. Supp. 861, aff. Memo. Opinion, 99 N.E. 1108; In Re Clark's Estate, 264 Ill. App. 544; Scott v. Scott (Ky. App.), 252 S.W. 1019, 1020; Travers v. Reinhardt, 205 U.S. 423. (2) Martha S. Thomson offered sufficient competent evidence of the fact that a marriage did exist. (a) Scott v. Scott (Ky. App.), 252 S.W. 1019, 1020. (b) Written and oral declarations of deceased husband are original evidence of the fact of the marriage, admissible both as admissions and as part of the pedigree rule. In Re Imboden's Estate (Mo. App.), 86 S.W. 267; Topper v. Perry (Mo.), 95 S.W. 205; 1 Greenleaf on Evidence (Lewis Ed.), par. 103. (c) The general reputation of Mrs. Thomson is admissible to corroborate the admissions and declarations of Mr. Thomson. Wigmore on Evidence (3 Ed.), sec. 2505. (3) Once a marriage is established a strong presumption arises in favor of its validity and the burden shifts to the opponent of the marriage to prove its invalidity. Nelson v. Jones et al. (Mo.), 151 S.W. 80, 82; Osmak v. American Car Foundry Co. et al. (Mo.), 40 S.W. (2d) 714, 717; In Re Hinman, 132 N.Y. Supp. 861; Galveston Rly. Co. v. Cody (Texas), 50 S.W. 135; Wigmore on Evidence (3 Ed.), sec. 2505; 35 Am. Juris., sec. 194; Johnson v. St. Joseph Terminal Rly. Co. (Mo.), 101 S.W. 641, 646; Maier v. Brock (Mo.), 120 S.W. l.c. 1174; L.R.A. 1915E, page 47, sec. f. (4) The presumption in favor of the validity of a marriage once shown is useless unless a compliance with all statutory requirements, including the issuance of a license and a ceremony performed in compliance therewith are part of that presumption. In Re Hinman, 131 N.Y. Supp. 861; 35 Am. Juris., sec. 194; Wigmore on Evidence (3 Ed.), sec. 2505; Johnson v. St. Joseph Terminal Ry. Co. (Mo.), 101 S.W. 646; Scott v. Scott (Ky. App.), 252 S.W. 1019, 1020; In Re Seymour, 185 N.Y. Supp. 377; Travers v. Reinhardt, 205 U.S. 423; Redgrave v. Redgrace, 38 Maryland 93, 97; Galveston Rly. Co. v. Cody (Texas), 50 S.W. (2d) 135; In Re Elliott's Estate (Calif.), 132 Pac. 441. (5) Appellants did not disprove the validity of the marriage. Osmak v. American Foundry Co. et al., 40 S.W. (2d) 714, 717.

SPERRY, C.

Martha S. Thomson, filed a claim in probate court seeking the statutory allowance of $400 for a widow, and an allowance for a year's maintenance and support, from the estate of Peter Thomson, deceased, whose widow she claims to be. Her claim was allowed for $400 absolute allowance and for $1400 maintenance. Earl P. Thomson, a son of deceased and administrator of said estate, and Grace Richardson, a daughter of deceased, defendants, appealed to the circuit court. The cases were consolidated in circuit court, and a trial of the cause resulted in a judgment sustaining the allowances made by probate court. From that judgment both defendants prosecute their appeals to this court.

The sole question presented here is whether or not the evidence supports the judgment of the court to the effect that Martha S. Thomson, claimant, is the legal widow of Peter Thomson, deceased. If the evidence is sufficient to justify a finding to the effect that claimant and deceased were legally married the judgment should be sustained; otherwise it should be reversed.

Peter Thomson and Anna George were married in 1894, and the two defendants herein are the children of that marriage. Anna George Thomson died in 1914, but her mother made her home with Thomson thereafter until her death in 1919. Earl came home from the army in 1918 and was introduced to claimant, under the name of Martha Evans, by his father. Grace also met claimant at about that time, at the Thomson home, and claimant was introduced to her also as Martha Evans. The Thomson family, then living at the home, consisted of Peter, Earl, Grace, the grandmother, and a housekeeper. Claimant did not live there but only came there occasionally. Grace was married and, shortly thereafter, on October 11, 1919, she left home. For a period of about ten years thereafter she did not return home but saw her father occasionally.

Claimant's sister testified in her behalf and stated that, from the date of her marriage in 1911, until 1930, she resided at Chicago and only returned to Kansas City occasionally for visits to her sister and her father and mother; that their parents lived at 2510 Indiana, in Kansas City, where claimant and witness grew up; that she visited here in April, 1921, and was in the Thomson home; that claimant was living there at that time and was employed as housekeeper; that claimant was then the legal wife of one Fred C. Edelen, who was living but was a mental case; that she requested claimant to move to and live in their father's home because their mother was ill; that deceased said: "Well, this will be her home some day," and that witness answered; "It isn't now because she has a living husband;" that claimant's name at that time was Edelen. The witness further testified that she returned to Chicago; that Fred C. Edelen committed suicide in May, 1921; that witness returned to Kansas City, on a visit, at about Christmas time, 1921; that she visited in the Thomson home and, while there at dinner with deceased and claimant, deceased said to her: "Well, kid, I finally got her to marry me;" that deceased talked with her several times about being married to claimant; that she told him that her wedding anniversary was August 7th, and deceased said: "Well, kid, I got you beat. My first anniversary was 8th of August, and I had another one, that is where I have got it over you, I was married in October, too." She stated that deceased and claimant accompanied witness and her husband on recreational trips out to parties and banquets almost weekly over a period of years and deceased always introduced claimant, and referred to her, as his wife and that she was so accepted and known among their friends and acquaintances; and that deceased and claimant were generally reputed to be husband and wife in the community in which they lived. She also testified that deceased and claimant made a number of trips to Canada to visit deceased's relatives and that she received mail from them while they were on such trips. She identified an envelope and letter which was addressed to claimant, and also a postal card addressed to her from Canada, as being in the handwriting of and signed by deceased. Said letter and card were placed in evidence and the letter closed as follows: "Your loving husband, Peter." The envelope was addressed to "Mrs. Peter Thomson, 1239 Ewing Ave., K.C. Mo." The postal card was signed "Your loving husband, Peter."

Mrs. Wroten testified that she knew deceased and claimant intimately over a period of fifteen years; that witness and her husband, who is...