Williams v. Williams

• Decision Date: 28 April 1885
• Citation: 23 N.W. 110,63 Wis. 58
• Parties: WILLIAMS v. WILLIAMS.
• Court: Wisconsin Supreme Court

63 Wis. 58

23 N.W. 110

WILLIAMS

v.WILLIAMS.

Supreme Court of Wisconsin.

Filed April 28, 1885.

Appeal from circuit court, Milwaukee county.

This is an action of ejectment, commenced September 7, 1874, by the plaintiff, as the widow of Lewis Williams, Sr., for dower of an undivided one-third of 260 acres of land in Kenosha county, and damage for withholding the same. The answer denies that she was ever such widow, or the wife of the deceased. On the first trial the jury found in favor of the plaintiff, and the judgment entered upon the verdict was reversed by this court for intervening error. 46 Wis. 464;S. C. 1 N. W. REP. 98. Upon the cause being remanded, the jury was waived, and the case was tried by the court, which found, in effect, that William Jones married Amelia Rees, April 6, 1860, at Ebber Vale, Wales, Great Britain, but abandoned her in June, 1860, and never returned to or saw her thereafter; that the same William Jones married the plaintiff (then Jane Davis) at Newtown, Wales, June 13, 1864, and cohabited with her as late as 1869 in Kenosha county; that May 9, 1870, the plaintiff married Lewis Williams, Sr., at Racine, Wisconsin; that in October 1870, the plaintiff, by the name of Jane Jones, commenced an action for divorce against William Jones, upon personal service and verified complaint, on the ground that he had willfully deserted her in 1868 and had not returned, and obtained judgment of divorce therein, in the circuit court for Kenosha county, in November 1870; that Lewis Williams, Sr., was seized of the premises in question May 9, 1870, when he was married to the plaintiff, and thereafter conveyed the same to the defendant without the signature of the plaintiff; that Lewis Williams, Sr., died August 25, 1873; that William Jones was divorced from Amelia Rees before he married the plaintiff; that the plaintiff was, May 9, 1870, and until her divorce in November, 1870, the wife of William Jones; that Amelia Rees was living as late as October, 1877; that the plaintiff was not the wife of Lewis Williams, Sr., at the time of his death; that the plaintiff demanded possession of the premises in question before the commencement of this action, which the defendant refused to deliver up. Upon the findings judgment was rendered against the plaintiff and in favor of the defendant, from which the plaintiff brings this appeal.J. V. Quarles and Charles Quarles, for appellant.

Fish & Dodge and D. S. Wegg, for respondent.

CASSODAY, J.

Was the marriage between the plaintiff and Lewis Williams, Sr., legal and binding upon the parties at the time it was consummated, on May 9, 1870? The answer to this question must be in the affirmative, unless the plaintiff was at the time the wife of William Jones. If she was at the time the wife of Jones, then she was incapable of entering into the marriage contract with Lewis Willams, Sr. Section 2330, Rev. St. The statute expressly prohibits such second marriage. Id. It goes further and declares that “if solemnized within this state,” as this was, it shall “be absolutely void, without any judgment of divorce or other legal proceedings.” Section 2349, Rev. St. Whether the plaintiff was at that time the lawful wife of Jones, depends upon whether the marriage between them in Wales, June 13, 1864, was a legal marriage. It is a verity in the case that four years prior to that marriage Jones had been lawfully married to Amelia Rees, who was then still living, and who continued to live for at least three years after the commencement of this action. It is claimed that the trial court was bound to presume, in the absence of testimony, that the marriage between Jones and Amelia, April 6, 1860, had been dissolved prior to his marriage with the plaintiff. The finding of the trial court to that effect is based entirely upon that presumption. There is no claim or pretense that there is in the record any evidence of any such divorce, except the alleged presumption arising from the fact that Jones married the plaintiff. It is claimed that this alleged rule of presumption is settled by the authoritities conclusively, and beyond all question. Several cases are cited in the brief of counsel in support of this statement. Some of these cases will be considered.

The leading case cited is The King v. Twyning, 2 Barn. & Ald. 386. That case is cited in support of several of the other cases cited by counsel, as in Yates v. Houston, 3 Tex. 449;Carroll v. Carroll, 20 Tex. 741;Harris v. Harris, 8 Bradw. 65;Blanchard v. Lambert, 43 Iowa, 230. In The King v. Twyning the question was whether the pauper, Mary Burns, was then the lawful wife of Francis Burns. It appeared that about seven years before she had married Richard Winter, with whom she lived a few months, when he enlisted as a soldier and went abroad on foreign service, and had never thereafter been heard of. A little more than a year after his departure Mary married Francis Burns, by whom she had children, and with whom she continued to live. In favor of innocence, the court presumed that Winter was dead before Mary married Burns. A person who has not been heard of for seven years is presumed to be dead, but there is no legal presumption that the death occurred at the end of the seven years, nor at any precise time during the seven years. Doe v. Nepean, 5 Barn. & Adol. 86.

In The King v. Harborne, 1 Adol. & E. 540, one Henry Smith had married the pauper Ann Smith, April 11, 1831, and then deserted her. It appeared, also, that he had married Elizabeth Meadows, October 4, 1821, and continued to live with her about four years, when he left her, and she went to the hospital, and a letter was produced from her, dated in Van Dieman's Land 25 days before Smith married Ann. In that case it was held that the sessions were authorized to presume that the first wife was living at the time of the second marriage. In giving the opinion of the court, Lord DENMAN, C. J., in speaking of The King v. Twyning, supra, said this court in that case “merely decided that the case raised no presumption upon which the findings of the sessions could be disturbed. The two learned judges (writing the opinions) certainly appear to have decided the case upon more general grounds. The principle, however, upon which they seem to have proceeded was not necessary to that decision. I must take this opportunity of saying that nothing can be more absurd than the notion that there is to be any rigid presumption of law on such a question of fact, without reference to accompanying circumstances; such, for instance, as the age or health of the party. There can be no such strict presumption of law. * * * I think that the only questions in such cases are, what evidence is admissible, and what inference may fairly be drawn from it.” LITTLEDALE, J., expressed himself of the same opinion, and said: “All these questions depend upon the facts. There can be no direct evidence as to the fact, unless the party be shown to be alive after the marriage.” All the judges concurred.

In that case there was no evidence tending to show any divorce from Elizabeth, and no intimation that the court had any right to presume such divorce. Several years afterwards the house of lords, after considering both of the above cases, and in opinions delivered by Lord Chancellor COTTENHAM and Lords CAMPBELL and BROUGHAM, declared substantially the same rule, and held that “there is no absolute presumption of law as to the continuance of life, nor any absolute presumption against a party doing an act because the doing of it would make him guilty of an offense against the law. In every instance the circumstances of the case must be considered.” Lapsley v. Grierson, 1 H. L. Cas. 498. The question there involved was the legitimacy of Robert Lapsley and his sister Joanna, born in 1807 and 1810, and whose parents were John Lapsley, who died in 1810, and Janet McKinley, who was alleged to have been his wife. In behalf of Robert and Joanna, it was claimed that their mother, Janet McKinley, had been married three times in Scotland: first, to Kidd, who died in 1796; secondly, to Paul, who left for America in 1801 and was lost at sea in 1804 or 1805; and thirdly, to their father, John Lapsley, in 1807. The first two marriages were admitted, but the third was denied, and it was alleged that the cohabitation commenced unlawfully soon after Paul's departure from Scotland, and so continued, without its character having been changed, until the death of the father, John Lapsley, in 1810. “To make such children legitimate, it was held necessary for those who assert their legitimacy to prove either a legal origin of the cohabitation, or a change in the nature of it after the death of [Paul] had been known to all the parties. The mere fact that [John Lapsley] and the woman [Janet McKinley] continued to live together was not sufficient for that purpose. Under the circumstances the children were held illegitimate, though born after the date of [Paul's] death.” But there is no intimation in the case of any presumption of any divorce of Paul and Janet McKinley in order to sustain the innocence of her and John Lapsley, and thus legitimatize the children. Of course, where there has been a marriage ceremony, it is prima facie valid, for the law presumes in favor of marriage. Piers v. Piers, 2 H. L. Cas. 331.

In the recent case of The Queen v. Willshire, L. R. 6 Q. B. Div. 366, the indictment charged the prisoner with having married Charlotte Lavers, September 7, 1879, and then, while she was still living, having feloniously married Edith Miller, September 23, 1880. These charges having been clearly proved, the prisoner, to prevent conviction on that indictment, himself proved that he had been convicted of bigamy in June, 1868, on an indictment charging him with having married Ellen Earle in 1864, and then, while she was still living, having feloniously married Ada Leslie, April 22, 1868. There was no evidence that Ellen...