Weidenhoft v. Primm

• Citation: 16 Wyo. 340,94 P. 453
• Parties: WEIDENHOFT ET AL. v. PRIMM
• Decision Date: 09 March 1908
• Court: United States State Supreme Court of Wyoming

94 P. 453

16 Wyo. 340

WEIDENHOFT ET AL. v. PRIMM

Supreme Court of Wyoming

March 9, 1908

ERROR to the District Court, Fremont County, HON. CHARLES E CARPENTER, Judge.

Upon a proceeding to determine heirship to the estate of Julius A Schuelke, deceased, Lola Small Schuelke Primm claimed the estate as widow of the decedent, as against Emilie Weidenhoft, mother, and Johanna Schuelke, sister of the decedent. Judgment was rendered in favor of the former and the latter--the mother and sister--prosecuted error. The facts are stated in the opinion. The case was heard upon motion to strike the bill of exceptions and dismiss the petition in error, and also upon the merits.

Reversed and remanded.

E. H Fourt, for plaintiffs in error.

The evidence is totally insufficient to establish a marriage contract between Dr. Schuelke, the deceased, and the defendant in error. While the latter was occasionally introduced by Dr. Schuelke as his wife, that was not usually so, and he refrained from so introducing her to respectable women of the community. She was not generally regarded as the doctor's wife, but their relations were generally understood to be illicit.

An alleged foreign marriage will not generally be presumed to be valid, without a showing of compliance with the laws of the country where it is alleged to have been performed. (Canale v. People, 52 N.E. 210; Norcross v Norcross, 29 N.E. 506; Medway v. Needham, 16 Mass. 157 (8 Am. Dec., 131.) A marriage in the District of Columbia, where this contract is said to have been entered into, is void unless solemnized according to law. It is so held in Maryland, from which state the law of the District of Columbia on the subject was taken. (Dennison v. Dennison, 35 Md. 361; Brown v. Becket, 6 D. C., 253.) A marriage invalid where entered into is invalid everywhere. (1 Bish. M. & Div. (6th Ed.), 390.) Cohabitation illicit in the beginning is presumed to have so continued until the contrary is proven. (Williams v. Williams, 46 Wis. 464; 1 Jones on Ev., 183; 1 Bish. M. & D., 504; Ededstein v. Brown (Tex.), 80 S.W. 1027; Sims v. Sims (N. C.), 28 S.E. 407; Riddle v. Riddle (Utah), 72 P. 1081.)

The statutes of this state seem to be mandatory in respect to procuring license to marry, and preclude the idea of a marriage, except when celebrated in the manner prescribed. A license must be obtained. (McLaughlin's Est. (Wash.), 30 P. 651; Ligona v. Buxton (Me.), 2 Greenl., 102; Com. v. Munson, 127 Mass. 459; Norcross v. Norcross, 29 N.E. 506; State v. Hodgkins, 19 Me. 155.)

Presumption of marriage from cohabitation and reputation is overcome by evidence of a separation. (Maher's Est. (Ill.), 56 N.E. 124.) The doctrine that a marriage resulted from contract of marriage per verba de futuro followed by cohabitation did not become a law of this state by the adoption of the common law of England. (Cheney v. Arnold, 69 Am. Dec., 609; Burtis v. Burtis, 14 Am. Dec., 563; Dennison v. Dennison, supra.) A mere contract of marriage was not a complete marriage, unless made in the presence of or with the intervention of a minister of Holy Orders. (2 Pars. Cont. (5th Ed.), 75, 78.)

Stone, Winslow & Gudmundsen and H. S. Ridgely, for defendant in error.

There is no provision of law for the bringing of error proceedings in this cause; the decision of the district court is by statute made final and conclusive, and this court is without jurisdiction. (R. S. 1899, Secs. 4835-4837; 88 Cal. 374; 17 Ency. L., 1060, et seq.; Wilson v Ter., 1 Wyo. 114; Mau v. Stoner, 14 Wyo. 183; Const., Art. V, Secs. 2, 18.) The proceeding to determine heirship is a special proceeding for the settlement of estates of deceased persons, and the provisions of the code of civil procedure relative to new trial, and error proceedings, are inconsistent and inapplicable. (26 Ency. L. (2d Ed.), 1; Smith v. Westerfield, 88 Cal. 374; Ex parte Smith, 53 Cal. 204; Bell v. King, 70 N. C., 330.) No provision regulating or allowing appeals applies to this proceeding. The bill of exceptions is not prepared, arranged and fastened together in proper order, and the pages of the same are not properly numbered as required by law and the rules of this court. The motion for a new trial is not embraced in the bill. There is no certificate of the trial court, or any officer thereof, that it is any part of the record in this case, and the same does not appear ever to have been filed in the district court, and is not certified by the clerk to be a part of the record. A motion for a new trial is not a part of the record unless incorporated in a bill of exceptions properly prepared, allowed and signed. (Seibel v. Bath, 5 Wyo. 409; Harden v. Card, 14 Wyo. 479.) The omission is such as cannot be amended. An appellate court will not permit a bill of exceptions to be withdrawn for the purpose of amendment or correction as a matter of course; and especially is this true where the mistake or omission is due to the laches of the party seeking relief. (Callahan v. Houck, 14 Wyo. 201; Freeburgh v. Lamoureux, 13 Wyo. 454.) The bill is not certified by the clerk to be the original bill of exceptions settled and allowed by the judge of the district court. It is sufficient as to this to call attention to the certificate of the clerk of the district court, and to the absence of any statement over his signature which would identify the bill of exceptions in the files of this court, with the bill settled and allowed and made a part of the record in the district court.

In the pleadings it is alleged that Emilie Weidenhoft was the mother and Johanna Schuelke the sister of the said Julius A. Schuelke, deceased, but there is no evidence that such was the fact. It is true that in the court below, for the purposes of the hearing, and so far as it affected the rights and interests of the defendant in error, she admitted that the plaintiffs in error stood in the relationship claimed by them. But such admission was not binding upon the court, and could not be taken by the court in lieu of proof; neither was the admission sufficient, in the absence of positive evidence, to justify the court in making a finding in their favor; it could not be taken by the court as a substitute for the necessary proof of identity. The burden was upon the plaintiffs in error to establish their identity and relationship. (14 Cyc., 98; Hall v. Wilson, 14 Ala. 295; Anson v. Stein, 6 Iowa 150; Currie v. Fowler, 28 Ky. 145; Taylor v. Whiting, 4 T. B. Mon., 364; Emerson v. White, 29 N. H., 482; Morrill v. Otis, 12 N. H., 466; Birney v. Hann, 10 Ky. 322; Freeman v. Loftus, 51 N. C., 524; Goldwater v. Burnside, 22 Wash. 215.) We submit that plaintiffs in error here having failed to make sufficient proof, and there being no finding in their favor upon the evidence as to relationship, the court below cannot be held to have committed error in refusing to render judgment for them.

There existed between the defendant in error and the decedent a valid common law marriage, such as could only be terminated by death or a judicial decree; as such wife, upon his death, she became, under the law of descent of this state, the person to whom all of the estate of the said decedent should be distributed, had he died intestate, and she is entitled to take the same under the terms of the will. A direction to distribute "under the intestate laws" is a gift to a class. (McGowan's Est., 190 Pa. St. 375; 30 Ency. L., 718.) Taking under the will, the defendant holds by purchase and not by descent. (Allen v. Bland, 134 Ind. 78.)

A formal valid marriage will be presumed from cohabitation acknowledgment and reputation. (19 Ency. L. (2d Ed.), 1202, 1204, and cases cited; Teter v. Teter, 101 Ind. 129.) The essentials are capacity and consent. A contract of marriage per verba de praesenti is valid. (Connors v. Connors, 5 Wyo. 433; Fornshill v. Murray, 18 Am. Dec., 344; 1 Bish. M. & D., 116.) A marriage established by evidence is presumed to be regular and valid. (26 Cyc., 57; Green v. Norment, 5 Mackey, 80.) A marriage may be proved by circumstantial or presumptive evidence. (26 Cyc., 62, 68; Pierce v. Jacobs, 7 Mackey, 498; Senge v. Senge, 106 Ill.App. 140; Jennings v. Webb, 8 App. Cas. (D. C.), 43.) And by one of the parties thereto. (In re Richards, 133 Cal. 524; Com. v. Dill, 156 Mass. 226; Leighton v. Sheldon, 16 Minn. 243.) In the absence of any positive provision declaring that all marriages not celebrated in the manner prescribed shall be void, it is generally held that a marriage without conformity to such regulations is valid if the parties have entered into the contract according to the common law. (19 Ency. L. (2d Ed.), 1195, and cases cited; 26 Cyc., 20; Connors v. Connors, 5 Wyo. 433.) This marriage was contracted in the District of Columbia, and it may be of importance to observe that the common law is in force there, except in so far as it has been abrogated by act of Congress. (DeForrest v. U.S. 11 App. Cas. (D. C.), 458; State v. Cummings, 33 Conn. 260; U. S. v. Griffen, 6 D. C., 53; U. S. v. Guiteau, 1 Mackey (D. C.), 498; Ex parte Watkins, 7 Pet. (U.S.), 568.) The common law of another state must be presumed to be the same as it is in the state of the forum, in the absence of evidence to the contrary. (10 Cent. Dig. Col., 864, and cases cited.) This state has adopted the common law. (R. S. 1899, Sec. 2695.) It will be presumed that the legislature in enacting a statute did not intend to make any alteration in the common law other than that specifically stated. (Cadwallader v. Harris, 76 Ill. 370; Hooper v. Baltimore, 12 Md. 464.) No provision of the law of Wyoming makes void marriages not celebrated in accordance with the statutory procedure. Under our law marriage is made a civil contract. (Sec. 2955.) Upon the authorities it...