Weatherall v. Weatherall

• Decision Date: 16 December 1909
• Citation: 105 P. 822,56 Wash. 344
• Court: Washington Supreme Court
• Parties: WEATHERALL v. WEATHERALL et al.

105 P. 822

56 Wash. 344

WEATHERALL v. WEATHERALL et al.

Supreme Court of Washington

December 16, 1909

Department 1. Appeal from Superior Court, Thurston County; John R Mitchell, Judge.

Sallie Weatherall commenced a proceeding to establish her marriage with H. R. Weatherall, deceased, and to contest his alleged will, and later filed a bill in equity against Robert Weatherall and others to establish a resulting trust in certain real estate. Both cases were tried together and dismissed, and Sallie Weatherall appeals. Reversed and remanded.

J. W. Robinson and R. H. Fry, for appellant.

Troy &amp Sturdevant and A. J. Falknor, for respondents.

GOSE J.

The appellant commenced a proceeding in the superior court of Thurston county in probate, for the purpose of establishing her marriage with H. R. Weatherall, deceased, and contesting his alleged will. Later she filed in the same court a bill in equity against the respondents, to establish a resulting trust in certain real estate. The two cases were tried, and one judgment was entered dismissing both cases. An appeal was taken from this judgment.

A motion to dismiss the appeal has been interposed, based upon two grounds: (1) Because the statement of facts was filed May 29, 1909, without service, and withdrawn, refiled, and served on June 19, 1909, under an order of the court; (2) because but one statement of facts was served and filed in the two cases. The judgment was entered April 26, 1909. In support of the first ground respondents cite State ex rel. Royal v. Linn, 35 Wash. 116, 76 P. 513. The case is not in point. It holds construing section 5058, 2 Ballinger's Ann. Codes & St. (Pierce's Code, § 675) that, where a proposed statement of facts has been filed and served, and no amendments proposed within 10 days, the proposed statement 'shall be deemed agreed to,' and shall be certified by the judge, and that he cannot thereafter permit it to be withdrawn, amended, refiled, and resettled. No good would have resulted to the respondents from a separate statement of facts in each case. The statements would necessarily have been duplicates. While the cases were not technically consolidated, they were tried together, and one judgment was entered, thus treating the cases as having been actually consolidated. The objections are technical, and raise no question going to jurisdiction. The motion will be denied.

The petition in probate alleges that the petitioner and H. M. Weatherall, deceased, were married in 1879, in Thurston county, this state, and that they lived together as husband and wife until the decease of the latter. This is denied by the respondents. The appellant is an Indian woman, and the deceased was a white man. The appellant contends that there was a valid, ceremonial marriage about the year 1879, and that the parties lived together thereafter, in the manner usual between husband and wife, until the death of the husband. The respondents insisted throughout the trial, and now insist, that the relation between the appellant and the deceased was not at any time one of a matrimonial cohabitation, but an illicit and meretricious cohabitation, which did not create the relation of husband and wife, and this view was adopted and made effective by the judgment below. James Tobin, an Indian, testified that the deceased and the appellant came to him, and that the former requested him to inform one Kettle Labatum, an Indian chief, that he came there for the purpose of having him unite them in marriage; that he interpreted the request to the chief, who said that white men, after they live with Indian women for a time 'throw them out'; that he interpreted this to the deceased, who said that he would not do that; 'that he would not throw out Sallie'; that Kettle then said that he would marry them if the deceased wanted her; that he interpreted this to the deceased, who said that he did want her, and that he came there to see if he (Kettle) would marry them; that Kettle then called upon the deceased and the appellant to stand together, and asked the deceased if he would take the appellant as his wife; that he then asked the appellant if she would take the deceased as her husband; that she answered 'Yes'; that he then caused them to shake hands, and said, 'You two are married, and you must be man and wife'; that thereafter they lived together. He also said, in answer to the question whether the chief was a minister: 'Why, he was a preacher; no getting around that.' The wife of this witness testified that she was a daughter of the chief; that the deceased 'came to see her father, and told her father that he wanted to marry Sallie. Her father asked Mr. Weatherall, 'Will you live with her until you die or until she dies?' and Mr. Weatherall says, 'Yes.' Then he married them right there, made them shake hands, and Mr. Weatherall swore he would live with her as long as both lived. * * * He made them raise their hands, and he said a prayer for them.' Other evidence was admitted and stricken and offered and denied, tending to show declarations of the deceased that the marriage ceremony was performed by a minister, and that the appellant was his wife, that they lived together as husband and wife until the husband's death, and that they were regarded as husband and wife by their friends and neighbors.

The respondents rely upon the following cases in support of the judgment: In re McLaughlin's Estate, 4 Wash. 570, 30 P. 651, 16 L. R. A. 699; Kelley v. Kitsap County, 5 Wash. 521, 32 P. 554; In re Wilbur's Estate, 14 Wash. 242, 44 P. 262. These cases, as we shall see, simply hold that a common-law marriage and a marriage according to Indian custom are invalid in this state. In Re McLaughlin's Estate, at page 585 of 4 Wash., page 656 of 30 P. (16 L. R. A. 699), it is said: 'In all cases, whether common-law marriage are recognized or not, evidence of cohabitation and repute are admissible as tending to show a valid marriage. Holding each other out as husband and wife to the public, and continued living together in that relationship, has ordinarily, if not universally, been held sufficient proof, unless contradicted, to establish it, even within those states where common-law marriages are not recognized. This presumption could always be rebutted, however, by showing that the parties intended their connection to be illicit, and if it was so intended at its commencement, it is presumed to continue, unless evidence is produced of a change of mind.' In the Kelley Case, at page 524 of 5 Wash.,

page 555 of 32 Pac., it is said: 'The testimony in this instance shows that said Michael Kelley obtained this woman by paying $2 or $3 in silver to her sisters, that they lived together a short time, and that she left him, she being at the time pregnant, and that the plaintiff was the issue.' And continuing it is said: 'There is no claim that any marriage ceremony was ever performed for the parties.' In Re Wilbur's Estate it was held that a marriage between a white man and an Indian woman according to Indian custom was invalid.

Later expressions from this court on the same subject are contained in the following cases: Summerville v. Summerville, 31 Wash. 411, 72 P. 84; Shank v. Wilson, 33 Wash 612, 74 P. 812; State v. Nelson, 39 Wash. 221, 81 P. 721; McDonald v. White, 46 Wash. 334, 89 P. 891; Nelson v. Carlson, 48 Wash. 651, 94 P. 477; In re Sloan's Estate, 50 Wash. 86, 96 P. 684, 17 L. R. A. (N. S.) 960; Thomas v. Thomas, 101 P. 865. In the Summerville Case there was no record evidence of a marriage. The wife testified that she saw neither a marriage license nor a marriage certificate; that her husband took her before a person whom she believed to be a clergyman, and who performed a marriage ceremony. In this case the court quoted approvingly from 1 Bishop's Marriage & Divorce, § 959, as follows: 'If a ceremony of marriage appears in evidence, it is presumed to have been rightly performed, and to have been preceded by all needful preliminaries.' Continuing: 'A valid marriage may be presumed to...