Welch v. All Persons, etc.

Decision Date28 February 1927
Docket Number6045.
Citation254 P. 179,78 Mont. 370
PartiesWELCH v. ALL PERSONS, etc.
CourtMontana Supreme Court

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

Action by Agnes Welch against all persons claiming any interest in lands granted by the United States, pursuant to Rev. Codes 1921, §§ 9501-9515, to heirs of Hiram J. Rhodes, deceased. Hiram E. Rhodes and others filed separate answers, and, Agnes Welch having died after commencement of the action, Art Welch was substituted as party plaintiff. From a judgment in favor of defendants, plaintiff appeals. Reversed and remanded, with directions.

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

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

CALLAWAY C.J.

This action was brought by Agnes Welch for the purpose of determining heirship to lands granted by the United States to the heirs of her deceased father, pursuant to the provisions of sections 9501 to 9515, inclusive, of the Revised Codes of 1921. Following the directions of section 9502, Mrs. Welch named herself plaintiff, and the defendants were described as "all persons claiming any interest in or lien upon the real property herein described, or any part thereof."

It is set forth in the complaint that one Hiram J. Rhodes and Mariah R. Welch intermarried at Brothertown, Wis., upon November 30, 1857, and that, subsequent thereto, and prior to December 8, 1913, Mariah R. Rhodes died; to the union there was born one child only, Agnes Rhodes, the plaintiff; that Hiram J. Rhodes never at any time intermarried with any woman other than plaintiff's mother; that Hiram J. Rhodes died on December 8, 1913; that plaintiff is the only lawful issue of Hiram J. Rhodes, deceased, and his only living heir; that prior to December 8, 1913, plaintiff intermarried with one Art Welch, who ever after continued to be her husband; that on the 14th of November, 1917, the government of the United States, by lawful patent, granted to the heirs of Hiram J Rhodes, deceased, certain lands in Toole county, Mont.; that by reason of the facts aforesaid the plaintiff is, and ever since the 14th day of November, 1917, has been, the owner of and entitled to the possession of, all of said lands, and so forth.

The defendants Hiram E. Rhodes, Mabel Knapp, and the children of Minnie Burch, deceased, filed separate answers. Each admitted the marriage of Hiram J. Rhodes and Mariah R. Welch upon November 30, 1857, and that the plaintiff was the lawful daughter of that union. Each denied plaintiff's allegation that Hiram J. Rhodes never married any woman other than plaintiff's mother, and each alleged in effect that Hiram E. Rhodes, Mabel Knapp, and Minnie Burch were the fruit of a marriage between Hiram J. Rhodes and Esther O'Brien, his second wife, which took place "on or about the year 1867."

Specifically, Hiram E. Rhodes alleged himself to be the son of a subsequent marriage of Hiram J. Rhodes, consummated with Esther J. O'Brien at Brothertown, Wis., "on or about 1867." He averred also that Hiram J. Rhodes, Mariah R. Welch, and Esther O'Brien were Stockbridge Indians of the full blood, "and that all of the tribal customs and relations were adhered to largely in the family and domestic relations at that time."

Mabel Knapp alleged that Hiram J. Rhodes, "on or about the year 1867," and subsequent to the death of Mariah R. Rhodes, married Esther O'Brien. The Burch heirs alleged that Mariah R. Rhodes died prior to 1867, and thereafter, and "on or about" that year, Hiram J. Rhodes and Esther O'Brien intermarried.

Each defendant prayed that the heirs of Hiram J. Rhodes, and their respective shares in the property, be declared to be: Agnes Welch, one-fourth interest; Hiram R. Rhodes, one-fourth interest; Mabel Knapp, one-fourth interest; and the children of Minnie Burch, deceased, one-fourth interest.

Replies were filed to the answers by the plaintiff, in which the essential affirmative allegations were denied. It was denied that Mariah R. Rhodes died "on or about the year 1867," and alleged that she did not die until many years after the year 1867.

After the commencement of the action, Agnes Welch died, and Art Welch was substituted as party plaintiff.

The trial court found that:

"Mariah R. Rhodes died about 1901, and Hiram J. Rhodes was duly and legally divorced from his first wife, Mariah R. Rhodes, and said Hiram J. Rhodes legally intermarried with Esther O'Brien, and the issue of said marriage with Esther O'Brien, to wit, Hiram E. Rhodes, Minnie Burch, and Mabel Knapp, were legitimate."

Accordingly it adjudged that the plaintiff, Hiram E. Rhodes, Mabel Knapp, and the children of Minnie Burch collectively, are entitled to share equally in the property. The plaintiff has appealed.

The parties to this action are the descendants of those Indians, members of the historic Six Nations, who in the first half of the last century emigrated from Eastern States to reservations in the West. The ancestors of the litigants settled upon a reservation in Wisconsin. For a long time these Indians have been citizens of the United States.

At the trial, as in the pleadings, it was conceded that Hiram J. Rhodes and Mariah R. Welch were lawfully married on November 30, 1857. These people separated, but when the record does not disclose. They were not living together in 1882, nor at any time after that.

About 1890 Agnes Rhodes married Art Welch, and shortly thereafter Mrs. Mariah R. Rhodes took up her abode with them, and lived with them until she died in 1900 or 1901. About 1895 Hiram J. Rhodes paid a short visit to Mr. and Mrs. Welch, who were living at Amberg, Wis. Mrs. Rhodes was with the family, but it does not appear that there was any resumption of the marital relations between Hiram J. Rhodes and herself on that occasion. In fact, the record does not indicate that they even so much as engaged in ordinary conversation.

Shortly after the death of Mariah R. Rhodes, Hiram J. Rhodes again visited Mr. and Mrs. Welch, upon which occasion he remained with them three or four days. During his visit there, according to Mr. Welch, who gave this testimony over the objection of the defendants, Mrs. Welch reproached him with his neglect of her, asking why he did not think of her as he did of his other children, and he said to her:

"You are my only rightful legal heir; the only one I have. Your papa some day will surprise you with something."

In reply to this Agnes said:

"You have gave those other children all your property, and why don't you think of me?"

To which he replied:

"I was never married to Esther O'Brien; neither did I ever-there was no divorce action ever brought up with me and your mother, and * * * that makes you my only legal heir."

The defendants did not attempt to prove a ceremonial marriage between Hiram J. Rhodes and Esther O'Brien in 1867 or at any other time, nor did they offer any testimony with respect to tribal customs and relations. Counsel for defendants were surprised when the proof came in showing that Mariah R. Rhodes was living as late as the year 1900. They then offered proof tending to show the existence of a common-law marriage between Hiram J. Rhodes and Esther O'Brien. To this counsel for plaintiff objected upon the ground that the proof was outside the issues as framed by the pleadings. The objection was overruled, and defendants were allowed to proceed. No proof was offered to show when Hiram J. Rhodes and Esther O'Brien began living together; none that they ever cohabited at Brothertown, Wis.; none that their relations (whatever they were) began in 1867 or prior to 1873. A child was born to them in 1874, another in 1876, and later four others. Three of the children died in infancy. Minnie, Hiram, and Mabel attained majority.

Hiram E. Rhodes testified that he was born at Stockbridge, Wis. (and it is likely his elder sister Minnie was born in that state), but Hiram's first recollection of a family residence was at Redwood Falls, Minn. There is ample proof that Hiram J. Rhodes and Esther O'Brien maintained family relations and deported themselves as husband and wife at Redwood Falls in 1882 and thereafter until they separated in 1899. In 1899 the family, by common consent, it would seem, sold their home at Redwood Falls, and divided their property. Hiram E. Rhodes moved to Long Prairie, taking his father with him. The mother, Esther, who was losing her sight, was cared for by one of her daughters. She became totally blind in 1900. Hiram and Esther did not live together after 1899.

At the funeral of Hiram J. Rhodes, which occurred in 1913, there were present Mr. and Mrs. Welch and Hiram E. Rhodes. On that occasion Mrs. Welch said to Hiram E. Rhodes, so he testified, respecting decedent's property, the homestead in question:

"She asked me if we was ready to make any kind of division. I asked her what kind of a division she wanted. She said, 'Whatever is fair.' I said, 'Whatever you think is fair with me.' She says, 'There is four of us, and we might as well divide it four ways, each take one-fourth, and,' she says, 'we will all furnish money to go ahead and prove it up just the same as though he is living."' There was some talk of the expense which necessarily would be incurred; Rhodes opined that his sisters would not be able to contribute. Nothing came out of this conversation. Art Welch and his wife undertook to expend the necessary money and labor to bring about the issuance of a patent, and this was done without reference to the other children of Hiram J. Rhodes. Hiram E. Rhodes explained that, when he offered to assist, he was not allowed to participate, and did not.

A just decision of this case upon the record certainly...

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