Wolf v. Fox (In re Fox's Estate)

Decision Date10 October 1922
Citation178 Wis. 369,190 N.W. 90
PartiesIN RE FOX'S ESTATE. WOLF v. FOX.
CourtWisconsin Supreme Court

OPINION TEXT STARTS HERE

Appeal from Circuit Court, Dodge County; C. M. Davison, Judge.

Action by Elizabeth Wolf against Pauline Fox, administratrix of the estate of Valentine Fox, deceased. Judgment for plaintiff, and defendant appeals. Affirmed.

Plaintiff filed a claim against the estate of Valentine Fox, deceased, claiming that she believed herself lawfully wedded to him and while occupying the relation of wife to him she rendered services for him and gave him a house in which to live, and, among other things, asked for compensation for the value of her personal services and for the rental value of her house. The issues were submitted to a jury and it found: (1) That Valentine Fox for the purpose of inducing the plaintiff to marry him represented to her that he was free to marry her; (2) that plaintiff in entering into the marriage with him relied upon such representation as true; (3) that she had a right to rely upon such representations; (4) that she did not know before his death that he had no legal right to marry her; (5) that during the entire period from November 21, 1914, until January 30, 1921, she continued under the belief that he had the legal right to marry her; (6) that the value per week to her of the services lost by her by reason of entering into the marriage contract with him was $3; and (7) that the reasonable value per month of the house which she furnished him was $6. The court entered judgment for plaintiff for the services and rental for six years, in the sum of $1,445.52, and the defendant appealed.

Eschweiler and Rosenberry, JJ., dissenting.Stephens & Morrison, of Columbus (F. W. Hall, of Madison, of counsel), for appellant.

Lueck, Clark & Lueck, of Beaver Dam, for respondent.

VINJE, C. J. (after stating the facts as above).

The verdict is vigorously assailed by appellant because it finds that plaintiff entered into the marriage with Fox in good faith. The principal grounds for the argument are that the parties entered into a civil contract of marriage before a notary public and witnesses, and were not married in the usual manner; that she had had exhibited to her the decree of divorce which Mr. Fox had secured from his first wife, which decree was one from bed and board and not an absolute one; and that she had been told by the former wife and daughter that she was living in adultery with Mr. Fox.

[1] Since the law recognized as valid a civil contract of marriage at the time this was entered into (Becker v. Becker, 153 Wis. 226, 140 N. W. 1082, L. R. A. 1915E, 56), it cannot be held error for the jury to find that there was nothing suspicious or wrong in entering into a lawful contract of marriage. The claim that since plaintiff saw the judgment for divorce from bed and board she must have known it was not an absolute divorce as Mr. Fox represented it to be is not persuasive. Were she a party to the instrument, or versed in law, the claim would rest upon more substantial grounds. But she was neither. It is true the instrument concerned her vitally, but she may well have believed that it was an absolute divorce. It recited that it was a divorce “from bed and board forever,” and she may well have thought that that was the correct legal phraseology for an absolute divorce. She testified that at the time she married Mr. Fox she did not know there were different kinds of divorce judgments; that she first learned that fact after his death. In Thomas v. Thomas, 88 Wis. 88, 59 N. W. 504, it was held that a woman was not chargeable with knowledge that a decree of divorce obtained without the requisite period of residence in the state was void. Upon the evidence we think the jury were warranted in holding that she did not know the legal effect of the divorce from bed and board, and she was not under the circumstances as a matter of law chargeable with knowledge thereof.

The claim that plaintiff was informed that she lived in adultery with Mr. Fox rests upon conflicting testimony, and we cannot disturb the jury's conclusion as to where the truth lies.

The question presents itself whether or not the plaintiff under the verdict rendered is entitled to recover for services and rent of house.

[2] Courts are practically unanimous in holding that, when a woman voluntarily and knowingly lives in illicit relations with a man, she cannot recover on an implied contract for services rendered him during the period of such relationship. Emmerson v. Botkin, 26 Okl. 218, 109 Pac. 531, 29 L. R. A. (N. S.) 787, 138 Am. St. Rep. 953.

[3] Some courts hold that she can recover on an express contract if it does not form a part of the agreement for illicit relations. Id. On the question here presented as to whether a woman who in good faith believes she is married to a man when she is not, owing to his fraud or to a mistake of fact, can recover for services rendered him during the supposed marriage, the courts do not agree. Massachusetts holds that she cannot on the ground that, since no compensation was contemplated by the woman or by the parties, the law can imply no agreement to pay. Robbins v. Potter, 11 Allen (Mass.) 588;Cooper v. Cooper, 147 Mass. 370, 17 N. E. 892, 9 Am. St. Rep. 721;Ogden v. McHugh, 167 Mass. 279, 45 N. E. 731, 57 Am. St. Rep. 456. Other courts hold that she can recover on an implied contract when she in good faith believes herself to be his wife. Higgins v. Breen, 9 Mo. 497;Sanders v. Ragan, 172 N. C. 612, 90 S. E. 777, L. R. A. 1917B, 681;Emmerson v. Botkin, 26 Okl. 218, 109 Pac. 531, 29 L. R. A. (N. S.) 788, 138 Am. St. Rep. 953; Keener on Quasi Contracts, 322. The latter holdings are based on the ground that, since his estate has been enriched at her expense, equity demands that she shall be made whole. The doctrine of assumpsit is applied. It is inferred from the nature of the transaction, and the supposed husband is held to have assumed to pay because in point of law and equity it is just that he should pay. We think the latter doctrine is the more just and logical and adopt it in this case. Here it is found that the supposed husband by express fraudulent representations induced plaintiff to enter into the illicit relation. It is therefore just and equitable that his estate should reimburse her for the actual money value she has added thereto. Whether...

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21 cases
  • Steffes' Estate, Matter of, 77-171
    • United States
    • United States State Supreme Court of Wisconsin
    • 8 Abril 1980
    ...her household, farm or nursing services. In support of its contention, the estate quotes the following language from Estate of Fox, 178 Wis. 369, 371, 190 N.W. 90, 91 (1922): "Courts are practically unanimous in holding that when a woman voluntarily and knowingly lives in illicit relations ......
  • Willis v. Willis
    • United States
    • United States State Supreme Court of Wyoming
    • 1 Octubre 1935
    ...... Hay v. Peterson, 6 Wyo. 419;. Company v. Yarnell, 31 Wyo. 120; In re. Walton's Estate, (Iowa) 238 N.W. 577; Salisbury. v. Frank, 7 Ohio App. 454; 2 Page on Contracts, 1173. Burden ... rendered under such circumstances." Stewart v. Waterman, 97 Vt. 408, 123 A. 524; Wolf v. Fox, . 178 Wis. 369, 190 N.W. 90, 31 A. L. R. 420; Walraven v. Jones, 6 Del. 355, 1 Houst. ......
  • Watts v. Watts
    • United States
    • United States State Supreme Court of Wisconsin
    • 11 Mayo 1987
    ...provides no authority against it. This court has previously extended such relief to a party to a cohabitation in Estate of Fox, 178 Wis. 369, 190 N.W. 90, 31 A.L.R. 420 (1922). In Fox, the plaintiff was a woman who had believed in good faith that she was married to the decedent, when in fac......
  • Russell v. Fili's Estate (In re Fili's Estate)
    • United States
    • United States State Supreme Court of Iowa
    • 13 Diciembre 1949
    ...similar to the instant case, upon implied contract. Sanders v. Ragan, 172 N.C. 612, 90 S.E. 777, L.R.A.1917B, 681;Wolf v. Fox, 178 Wis. 369, 190 N.W. 90, 31 A.L.R. 420. See also Roberts v. Roberts, 64 Wyo. 433, 196 P.2d 361, 367, 369, citing Keener on Quasi Contracts, page 19; also see Keen......
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