Welch v. All Persons, etc.

Decision Date31 May 1929
Docket Number6445.
Citation278 P. 110,85 Mont. 114
PartiesWELCH v. ALL PERSONS, etc.
CourtMontana Supreme Court

Appeal from District Court, Toole County; George Bourquin, Presiding Judge.

Action by Art Welch, successor in interest of Agnes Welch, original plaintiff, against All Persons claiming any interest in or lien upon the real property herein described, or any part thereof. From the judgment plaintiff appeals. Reversed, with directions.

Angstman J., dissenting.

W. E Keeley, of Deer Lodge, and Louis P. Donovan, of Shelby, for appellant.

Hurd Hall & McCabe and Homer G. Murphy, all of Great Falls, for respondents.


This is the second appeal in this case. The facts set forth in the opinion on the first appeal (78 Mont. 370, 254 P. 179) will not be restated, but will be added to, in this. The controversy, it will be remembered, is over the succession to a tract of land in Toole county which Hiram J. Rhodes at the time of his death occupied as a homestead and to which he was not yet entitled to patent. His daughter Agnes Welch and her husband Art Welch completed the steps necessary to patent and it was issued by the United States to the heirs of Hiram J. Rhodes, deceased.

Agnes Welch brought this action, claiming to be the sole heir of her father. She died and Art Welch, her sole heir, was substituted as party plaintiff.

After the case went back to the trial court the defendants jointly filed two amended answers. In the second amended answer they admitted the marriage of Hiram J. Rhodes and Mariah R. Rhodes in 1857, and that Agnes Welch was the fruit of that marriage. They alleged that on or about the year 1873 Hiram J. Rhodes and Esther O'Brien married; "that defendants, after investigation, have been unable to ascertain the exact time and place of said marriage but are informed and believe that such marriage took place on or about the 14th day of February in the year 1873, in the town of Stockbridge, Wisconsin"; that thereafter Hiram J. Rhodes and Esther O'Brien continued to be and were husband and wife until the death of Hiram J. Rhodes on December 8, 1913; that Hiram E. Rhodes, Mabel Rhodes, now Mabel Knapp, and Minnie Rhodes, now deceased, were the issue of the second marrage. They then alleged that Hiram J. Rhodes died intestate, leaving surviving him as his heirs Esther Rhodes, his wife, Agnes Welch, a daughter, Mabel Knapp, a daughter, Hiram E. Rhodes, a son, and Minnie Burch, a daughter, who died about the month of July, 1918, leaving surviving her several children who are named. As a consequence, they alleged that Agnes Welch is entitled to an undivided one-twelfth interest in the property and that the others are entitled to interests in accordance with the laws of succession of this state. The plaintiffs denied all of the foregoing allegations except as to the death of Hiram J. Rhodes, that his daughter Agnes Welch survived him as an heir, and that Esther Rhodes, Mabel Knapp, Hiram E. Rhodes and Minnie Burch were living at the time of the death of Hiram J. Rhodes.

The court found, as it did upon the first trial, that the plaintiff and the defendants Hiram E. Rhodes and Mabel Knapp are each entitled to a one-fourth interest in the property, and that the heirs of Minnie Burch are entitled to the remaining one-fourth interest. The court deemed the proof sufficient to establish a common-law marriage between Hiram J. Rhodes and Esther O'Brien "approximately in the year 1873," but found the so-called common-law marriage to be "null in law;" concluded that the validity of the common-law marriage "is not material so far as the legitimacy of these defendants is concerned," and that defendants are "presumed to be legitimate." Decree followed accordingly. The plaintiff has appealed.

In legal effect plaintiff's case in chief upon the second trial was substantially the same as upon the first.

Plaintiff having rested, the defendants by stipulation of counsel introduced the testimony given by Hiram E. Rhodes and Mabel Knapp upon the first trial. In addition Hiram E. Rhodes gave testimony, supplementing that given by himself and Mabel Knapp upon the first trial, showing the cohabitation of Hiram J. Rhodes and Esther Rhodes, or Esther O'Brien Rhodes, and tending to show they treated each other as husband and wife, held themselves out to the public as such, and that Hiram recognized the children of Esther as his. But witness' testimony did not go back farther than '78 or '79, as he expressed it.

In rebuttal plaintiff testified to declarations made by Mariah R. Rhodes that she was never divorced from Hiram J. Rhodes. These declarations were numerous, the witness testified, and as late as 1897. Mariah R. Rhodes died in 1899.

Photostatic copies of records on file in the Pension Bureau of the Department of the Interior at Washington, duly certified by the commissioner of pensions, were introduced in evidence over the objection of defendants. It appears from these that Esther O'Brien in 1860 married Edward O'Brien who died at Nashville, Tennessee, on December 6, 1863, being then a member of Company I, 21st Wisconsin Infantry. Esther O'Brien, the soldier's widow, was awarded a pension under certificate No. 22270.

On the 25th day of September, 1884, at Redwood Falls, Minnesota, Esther O'Brien and Hiram J. Rhodes gave testimony in form of depositions, which they severally signed, before James F. Williamson, a special examiner of the pension office, the subject of the inquiry being whether Esther was still entitled to her pension. At that time she testified that she had three children, Minnie, age 15, Hiram, age 13, and Mabel, age 3. She swore that she and Rhodes were not living together as man and wife. "He makes his home here with me and we have lived in the same house for about eleven years except occasionally when he is away. This is his home and when he is in the vicinity he comes here." Asked "Who is the father of these children?" she answered, "I do not know as they have got any father. Q. Is not Hiram J. Rhodes the father of these children? A. Not that I know of. I don't know who their father is." She said she had not lived with any man as husband. Asked categorically as to who was the father of each of the children she replied, "I don't know," and as to whether other men had had the opportunity to become the father of the children, she responded, "I presume that such a thing may have been." Asked by what name the children went she said, "I don't know; I call them by my name," and said she clothed and fed them; that Rhodes never bought anything for them that she knew of.

Hiram J. Rhodes testified that he was then a married man and the name of his wife was "Rosetti Maria Rhodes. Her maiden name was Welch." He said he had not lived with his wife for eighteen years, but was never divorced from her, nor was she divorced from him to his knowledge. "Q. Do you know a woman by the name of Esther O'Brien, or Esther Rhodes? A. I know a woman by the name of Esther O'Brien; she is also called Mrs. Rhodes by the neighbors; I never call her Rhodes and never sign her name Rhodes." He said he had known Esther since she was a child and had never been married to her; he did not know who was the father of the children. Asked certain intimate questions he answered: "I neither admit nor deny it." He testified that sometimes the children called him "father" or "papa;" but denied that he supported them. "Q. Have you not lived with and treated this woman, Esther Rhodes, or Esther O'Brien, as your woman, or your wife for the past three years or more? A. No sir. I deny that I have."

On the 15th day of July, 1885, Esther O'Brien again testified before the special examiner. She said she did not care to make any change in the testimony she had given before him during the preceding fall. She said, "as I have had all these children since soldier's death, I know that I have lost my title to pension. Without admitting who was the father of the children I admit the children. I herewith abandon all my claim to pension. I do not want any more bother with it."

On the 10th of October, 1885, she asked to be restored to the pension roll. In an affidavit made before the clerk of the district court of Redwood county, Minnesota, she described herself as Mrs. Esther O'Brien, widow of the later Edward O'Brien. She swore, "I have not remarried since the death of my husband, nor have I lived with Mr. Hiram Rhodes, who is my cousin, or any other man as his wife since my husband died. Soon after Mr. O' Brien's death, being sickly, I was advised by my physician to get married and have children and it would improve my health. But I did not want to get married again. All the Indians were drunken and I did not expect a white man would marry me. For the sake of my health I concluded to bear the reproach of having illegitimate children. I procured this to be brought about for this purpose, and no other, and the result aimed at was secured. I have had, of course, the additional labor required to take care of these children. I do not think it necessary for me to state who was the father of my children. They are respectively 16, 14 and 4 years of age."

On the 12th of October, 1885, Rhodes made an affidavit in which he swore that he had known Mrs. Esther O'Brien since she was two years old. "She is my cousin. We grew up together as brother and sister. After her husband died she lived with her father at Stockbridge, Wisconsin. I employed her to work for me at $1.00 per week at housework for about four years after I came here. I carried on farming during that time. Since then when I have been at this place I have made my home at her house and boarded there, paying her for the same. I know nothing about the paternity of her children. She has never remarried. I...

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