Wadsworth v. Brigham

• Decision Date: 14 September 1927
• Citation: 259 P. 299,125 Or. 428
• Parties: WADSWORTH v. BRIGHAM ET AL.
• Court: Oregon Supreme Court

259 P. 299

125 Or. 428

WADSWORTH v. BRIGHAM ET AL.

Supreme Court of Oregon

September 14, 1927

In Bank.

Appeal from Circuit Court, Multnomah County; George Tazwell, Judge.

Suit by Mercedes E. Wadsworth against Aletta Brigham and others. Decree for defendants, and plaintiff appeals. Reversed and rendered.

This is a suit brought by Mercedes E. Wadsworth, claiming to be the sole heir of John H. Brigham, deceased, for the purpose of setting aside the provisions of a certain will made by the deceased whereby all the defendants except the Security Savings & Trust Company are named as beneficiaries. The Security Savings & Trust Company is named as trustee to carry out the provisions of said will; the plaintiff not being in any way named therein.

The plaintiff alleges that she is the daughter and sole heir of John R. Brigham, and, not being mentioned in the will, that she is entitled to inherit as against all the beneficiaries in the will, some of whom are nephews and nieces and others of no relation whatever.

The case was tried before Hon. George Tazwell, judge of the circuit court of Multnomah county, but upon request of plaintiff he called an advisory jury and submitted to them the following questions:

Question 1. Is the plaintiff the daughter of John R. Brigham deceased, who is mentioned in the pleadings in the above-entitled proceeding, and did the said John R. Brigham and the mother of plaintiff cohabit in the state of Oregon as husband and wife for over one year, the plaintiff being born as result of said relation? Answer: Yes.

Question 2. Were the parents of the above-named plaintiff ever formally married by means of a marriage ceremony either before or after the birth of plaintiff and while the said parents and each of them was single and capable of entering into a marriage contract? Answer: No.

The court set aside these findings as not supported by the evidence, and entered findings to the effect, first, that John R. Brigham, at the time of his death and always, had been unmarried and that he and Emily E. Liddy, mother of plaintiff herein, did not cohabit for one year or over and that plaintiff is not the issue of any such relation. Second that the great weight of evidence is contrary to the verdict of the jury to the effect that John R. Brigham and Emily E Liddy lived together as husband and wife in the state of Oregon for one year and that plaintiff is the result of such cohabitation, and that such verdict should be disregarded set aside, and held for naught. Third, that John R. Brigham and Emily E. Liddy, mother of Mercedes E. Wadsworth plaintiff, were never formally married by means of a marriage ceremony either before or after the birth of plaintiff, and that plaintiff is not the issue of any marriage relation existing between John R. Brigham and Emily E. Liddy. Thereafter the court made the following conclusions of law:

First, that the plaintiff is not an heir at law of John R. Brigham, deceased, and is not entitled to any relief whatsoever in this proceeding, and that the petition heretofore filed by her should be dismissed with prejudice. Second, that the defendants are entitled to their costs and disbursements in this proceeding.

Thereafter, a decree was entered conforming to these conclusions of law, from which decree the plaintiff appeals to this court.

Hoy & Childers, Thomas Mannix, and Dan E. Powers, all of Portland, for appellant.

V. V. Pendergrass and Charles Spackman, Jr., both of Portland, for respondents.

McBRIDE, J. (after stating the facts as above).

The first proposition that confronts us here is the question as to whether the plaintiff is the daughter of John R. Brigham. As to this, we think the testimony very largely preponderates in her favor. Plaintiff testified that she was born October 13, 1879, in Portland, and that from her earliest recollection she lived with her father, the decedent, and mother, until 1883 or 1884, when he eloped with another woman; that she was always told by both that they were married in California a year prior to her birth; that later, being informed that Brigham had denied that she was his daughter, she attempted to obtain proof of the marriage, but owing to the marriage records of San Francisco having been destroyed by the great fire and earthquake of 1906, such proof was not obtainable; and that she was named and always called Mercedes Brigham and attended school under that name and never went by any other name until her marriage. There was a slight attempt to impeach her veracity, but the impeachment was confined to the statement of a single witness, and he, although a gentleman of high character, seemed to base his testimony upon the result of a personal estimate from some business transaction with the deceased rather than upon a general reputation existing in the community. The plaintiff had lived in and about The Dalles for several years, and, certainly, long enough for her general reputation for truth to have become well known in the community; and the fact that no other witness was called on this branch of the case by the defendants is significant.

We are disposed to accept her statement as those of any other unimpeached though vitally interested witness who testified to occurrences many of which took place more than 40 years before this trial, and while in view of the interest she has in this proceeding and the time that has elapsed her statements may have been unconsciously colored, we do not feel at liberty to reject them entirely. Her testimony, as to the general conduct of the deceased towards her indicates all the usual affection of a father for his daughter. He called himself "papa," made her presents, and conducted himself during her tender years as a father would toward a beloved child. One incident that strongly corroborates her statement in this regard, and which cannot be disputed, is a present of a childish series of leaflets embodying pictures and verses of a "Mother Goose" character upon which is written in his undisputed and undisputable handwriting, "To Sadie Brigham from Papa," the words "to" and "from" being printed and the other words being in Brigham's handwriting. In corroboration of her claim, Mrs. Mary K. Britten of The Dalles testified as follows:

"Q. Where do you reside, Mrs. Britten? Where do you live? A. Your honor, I am hard of hearing; I wish counsel would come forward.

"Q. I'll speak a little louder; I think that she can hear me. Where do you live, Mrs. Britten? A. In The Dalles, Or.

"Q. How long have you lived in the state of Oregon, approximately? A. It will be 46 years November 4th.

"Q. Were you acquainted with John R. Brigham during his lifetime? A. I was.

"Q. Did you know, or were you acquainted with, the plaintiff here, Mrs. Wadsworth? A. I am.

"Q. How long have you known Mrs. Wadsworth, or how large was she when you first saw her? A. Well, she was a very little girl; possibly a year old or more.

"Q. When and where did you first see John R. Brigham? A. In The Dalles, Or.

"Q. At what place in The Dalles did you see him? A. The Umatilla House.

"Q. Who was with him when you saw him at the Umatilla House? A. Sadie, or Mrs. Wadsworth, and her mother and Mr. Brigham.

"Q. And how large was Sadie at that time, did you say? About how old would you think she was? A. Oh, I should think about a year or more old; she was just beginning to walk.

"Q. Did you meet John R. Brigham formally at that time? Were you introduced to him? A. I was.

"Q. Now, just tell the jury, Mrs. Britten, what took place at that time, at that meeting? How you met him, and what happened? Who was there, and all about it? A. Well; I just came from the boat, from New York state, and we stopped at the Umatilla House, and my sister was with me, and we went in and sat down. They were expecting the news about Garfield's election, and we all went in there and sat down, and we happened to sit in a seat next to Mrs. Wadsworth's mother, and my sister introduced me to Mrs. Liddy, and she says her name was Liddy at one time, but she said 'Excuse me,' she said, 'It is Mrs. Brigham.'

"Q. Was John R. Brigham there at that time? A. He was sitting next to her.

"Q. What did he say or do, if anything? A. And my sister asked him, 'Are you married?' and he said, 'We are;' and she said, when my sister introduced me, she said, 'If you please I am not Mrs. Liddy; I am Mrs. Brigham; this is my husband;' and we asked him if he was married, and he said, 'We are;' and he picked up the little girl and held her up, and he said, 'Look at our marriage certificate.' "

This witness further testified that upon two subsequent occasions she visited the Brighams in Portland, once at their home in the Reed Block, and once at the St. Charles Hotel, and found there Sadie, this plaintiff, and her mother and Mr. Brigham. She seemed to be a disinterested witness and her testimony is entitled to great weight. The witness further testified, in substance, that she visited Brigham in company with plaintiff a few days before his death; that he evinced a desire to see plaintiff, who was waiting outside; and that when plaintiff, at the call of the witness, entered the room, he (Brigham) greeted her affectionately; that they embraced each other with tears and conversed but out of the hearing of witness, who withdrew to another part of the room.

Mr. Comini of the The Dalles testified that he saw Mr. Brigham in regard to a tombstone for plaintiff's mother, and when he left, Brigham told him to give his best regards to his daughter, meaning plaintiff.

Thomas A. Doud, a witness for plaintiff, testified that he formerly resided in Binghampton, New York, where Mr. Brigham was born and where his folks lived, and that he came to Portland in 1882 and soon became acquainted with Mr....