Wiley v. Wiley

• Decision Date: 13 May 1919
• Docket Number: No. 9924.,9924.
• Citation: 75 Ind.App. 456,123 N.E. 252
• Parties: WILEY et al. v. WILEY et al.
• Court: Indiana Appellate Court

75 Ind.App. 456

123 N.E. 252

WILEY et al.

v.WILEY et al.

No. 9924.

Appellate Court of Indiana, Division No. 2.

May 13, 1919.

Appeal from Circuit Court, Decatur County; John W. Donaker, Judge.

Action by Mack H. Wiley against Emma Bagby Wiley and others. From judgment in favor of some of the defendants, plaintiff and other defendants appeal. Reversed.

This action was instituted by appellant Mack H. Wiley against appellee Emma Bagby Wiley and 28 others for the primary purpose of having an ostensible marriage adjudged void. The complaint as filed consisted of two paragraphs, but the second paragraph was dismissed, and throughout the opinion we will refer to said first paragraph as “the complaint.”

The following facts are averred in the complaint:

“One Hugh F. Wiley died intestate at the county of Decatur on the 19th day of January, 1916. He left an estate consisting of real property of the value of $15,000 (particularly described) and personal property of the value of $1,000. He left surviving a sister, two brothers, eight nieces, six nephews, and four grandnieces. Said surviving relatives are the deceased's sole heirs at law, and inherited his entire estate by virtue of the laws of Indiana, if the marriage assailed in this action is void. After the death of said Hugh F. Wiley his sister conveyed to the appellant Mack H. Wiley the portion of the real estate which she claims to have inherited from the deceased, being an undivided one-seventh, and that he is now the owner thereof. The personal property is sufficient to pay all claims against the estate and costs of administration.

On May 11, 1911, the said Hugh F. Wiley was adjudged to be an insane person by a duly constituted legal tribunal, and was committed by said tribunal to the Southeastern Hospital for the Insane at Madison, Ind., in which institution he was confined for two months. At no time after his confinement in said hospital was said Hugh F. Wiley, by any court or by any proceeding known to the law, adjudged to be a person of sound mind, and from the time of his said commitment continuously to the time of his death he was an insane person.

On April 19, 1915, a pretended marriage was solemnized between the said Hugh F. Wiley and one Emma Bagby, who is here designated by the name Emma Bagby Wiley. From the date of said pretended marriage until May 11, 1915, the said Hugh F. Wiley and Emma Bagby Wiley lived together as husband and wife, but did not so live together at any time thereafter. At the time of said pretended marriage Hugh F. Wiley was 71 years of age, and his mind and memory were so impaired that he was wholly incapable of entering into a contract of marriage. At the time of the marriage he was the owner of the property aforesaid.

At the time of said pretended marriage, and for more than two months prior thereto, and continuously thereafter until his death, the said Hugh F. Wiley was an insane person and had not sufficient mental capacity during any of said time to understand the nature and obligations of the marriage contract, and during all of said time was incapable, from want of understanding, of contracting marriage, and continuously after said pretended marriage he was incapable, because of his want of understanding, of ratifying said pretended marriage. The said Emma Bagby Wiley at the time of the said pretended marriage, and for some days prior thereto, knew that said Hugh F. Wiley was an insane person and incapable of entering into a marriage contract.

At the time of said pretended marriage the said Emma Bagby Wiley was a woman of bad moral character, lewd, and unchaste, and was the mother of a bastard child three years of age.

The first meeting and the first acquaintance of said Emma Bagby Wiley and said Hugh F. Wiley was on the afternoon of April 15, 1915, and not prior thereto. At the time of said meeting, and at the time of said pretended marriage, the said Emma Bagby Wiley was enceinte, and on December 20, 1915, she was delivered of a fully developed nine-months child, who is now living, and whose name is Ethel Pauline Wiley. The said Ethel Pauline Wiley was not begotten by the said Hugh F. Wiley and is not his child. The said Ethel Pauline Wiley was begotten by another man before the said Emma Bagby Wiley ever saw or met the said Hugh F. Wiley. At the time of said pretended marriage and prior thereto the said Hugh F. Wiley did not know, nor did he have mind enough to realize, that said Emma Bagby Wiley was pregnant, and that the said Emma Bagby Wiley then and there well knew of her physical condition and knew that she was pregnant on April 15, 1915. Said Hugh F. Wiley at no time ever acknowledged said Ethel Pauline Wiley as his child.

Said pretended marriage was brought about and caused to be consummated through and by reason of a conspiracy entered into, planned, schemed, and formed by the said Emma Bagby Wiley, Dr. Cecil G. Harrod, Herman Borcher, and others unknown to this plaintiff, all of whom were well aware of the irresponsible mental condition of the said Hugh F. Wiley, with the fraudulent intent, purpose, and motive to acquire the property and estate of the said Hugh F. Wiley, and for the further fraudulent purpose, object, and intent of overreaching the said Hugh F. Wiley into acknowledging, when born, the then unborn illegitimate child with which the said Emma Bagby Wiley was then pregnant. The said Hugh F. Wiley at that time was insane, and was induced and influenced to enter into said pretended marriage by the concerted action and connivance, the particulars of which are not known to this plaintiff, of said conspirators, for the fraudulent and unlawful purpose of cheating and defrauding said Hugh F. Wiley out of his property, and for the fraudulent and unlawful purpose of cheating and defrauding the natural and legal heirs of said Hugh F. Wiley out of any property of which he might die the owner, and for the fraudulent and unlawful purpose of securing for themselves the property of said Hugh F. Wiley which he owned and of which he might die seized. Said Herman Borcher was and is a man of bad moral character and of long acquaintance with the said Emma Bagby Wiley, and for many months prior to said pretended marriage he was intimately acquainted with both the said Emma Bagby Wiley and the said Dr. Cecil G. Harrod.

On April 17, 1915, said Emma Bagby Wiley and her coconspirators induced said Hugh F. Wiley to accompany her to the office of the clerk of the Decatur circuit court, where application was made for a marriage license. The clerk refused to issue a license, for the reason that a proceeding was then pending in said court for the purpose of having said Hugh F. Wiley adjudged a person of unsound mind. Thereupon said application was taken to the judge of said court, who sustained the action of the clerk and ordered that no license be issued. On April 19, 1915, said Hugh F. Wiley was taken by said Emma Bagby Wiley and her said confederates to Jeffersonville, Ind., or to Louisville, Ky., the exact place being unknown to the plaintiff, where a marriage license was obtained and a marriage ceremony performed.

At the June, 1915, term of the Decatur circuit court said Emma Bagby Wiley was indicted for perjury arising out of alleged false answers made by her in her application for a licenseto marry said Hugh F. Wiley. On September 27, 1915, one Ed. B. Bach, by his affidavit filed with a justice of the peace, charging her with the crime of perjury arising out of her testimony given before the grand jury. She was put under bond in the sum of $1,000 by the justice of the peace to appear at the next term of the Decatur circuit court. On January 17, 1916, the prosecuting attorney of said county filed his affidavit charging her with the crime of perjury arising out of her testimony before the grand jury.

“On May 8, 1915, said Hugh F. Wiley, by proper legal proceedings duly instituted, was adjudged an insane person, and recommitted to the State Hospital for Insane, and was received at said hospital May 11, 1915. He was thereafter continuously confined in said institution until his death.

On the - day of June, 1915, said Ed. B. Bach was duly appointed guardian of the person and estate of said Hugh F. Wiley by the Decatur circuit court. On June 30, 1915, an action was commenced in said court, entitled Hugh F. Wiley v. Emma Bagby Wiley, to annul said pretended marriage on the ground of the mental incapacity of said Hugh F. Wiley at the time of said marriage. Said Bach, as guardian aforesaid, maintained, continued, and prosecuted said action until long after the death of his said ward.

After the death of said Hugh F. Wiley said Ed. B. Bach, as guardian aforesaid, entered into an agreement with said Emma Bagby Wiley and others, which agreement is said to have been reduced to writing. Plaintiff avers that, as he is informed and believes, said agreement contains stipulations whereby said Emma Bagby Wiley and said Ethel Pauline Wiley together are to receive four-sevenths of said estate; that one Mollie K. Henderson is to receive three-sevenths of said estate; that said Ed. B. Bach and one Rollin A. Turner are to be appointed administrators of said estate; and that the suit to annul said marriage and the criminal proceedings aforesaid are to be dismissed. Pursuant to said agreement all said causes pending in said court were dismissed; said Bach and Turner, the latter being an attorney for Emma Bagby Wiley, were appointed administrators of the estate of the said Hugh F. Wiley, deceased; and said administrators are proceeding with the settlement of said estate. None of appellants was a party to said agreement nor a party to any of the proceedings, suits, or actions aforesaid. None of the appellants has in any manner consented to or ratified said agreement or any of the proceedings with reference to said actions pending in said circuit court.

Mollie K. Henderson, as plaintiff is informed, is claiming some relationship...