In Re Estate of De Force

BEAN, J. It will be noticed from the statement that the petition attacking the validity of the marriage of Mary H. De Force, formerly known as May Wing, with Elton Clayton De Force, the deceased, for the purpose of showing that Mary H. De Force is not the lawful widow of her deceased husband, failed to directly allege that Mary H. De Force or May Wing was ever married to Charles Wing, against whom the proceedings for a divorce was instituted in the Circuit Court for Clatsop County. The petition also fails to show that at the time of the admitted marriage of Mary H. De Force, then May Wing, with Elton C. De Force, Charles Wing the supposed former husband was then living. The petition fails to show that either May Wing or Charles Wing, the parties contracting the assumed marriage, was eligible to contract that relation with the other. For aught that appears in the petition or record, at the time of the divorce proceedings in the Circuit Court of Clatsop County, Charles Wing may have been dead. It is now the settled law in this state that where a marriage has been consummated in accordance with the forms of the law, the law indulges a strong presumption in favor of its validity. It is incumbent upon a party who asserts the invalidity of such a marriage, upon the grounds that one of the parties thereto has been formerly married, to allege and prove that the parties to the alleged former marriage were eligible to consummate the same, and that the *562 spouse of such former marriage is still living; that the first marriage has not been dissolved by divorce or by the death of one of the parties: Routledge v. Githens, 118 Or. 70 (245 Pac. 1072); In re Megginson, 21 Or. 378 (28 Pac. 388, 14 L. R. A. 540); Ollschlager’s Estate v. Widmer, 55 Or. 145 (105 Pac. 717); Wallace v. McDaniel, 59 Or. 378 (117 Pac. 314, L. R. A. 19160, 744); also, the cases cited in the opinion of Routledge v. Githens, supra. In order for the petitioner Charles E. DeForce to show that at the time of the marriage of Mary H. De Force with Elton C. De Force, she had a husband by a former marriage living, the first step necessary is that the petition or a pleading allege such facts. Counsel for petitioner assert in their briefs that this is a matter of proof and not a matter of pleading. In any case, the proof should correspond to the allegations of the pleadings, and, in the absence of any such allegation in the petition, proof of such fact would not be appropriate. A stream cannot rise higher than its source. In the case of Routledge v. Githens, supra, which was a suit to declare, a marriage void for the reason that the wife had a husband by a former marriage living, at page 1073 of the report, Mr. Justice Burnett, after discussing the question, recorded the following language: “In brief, if the plaintiff would rely on the marriage of the defendant with Githens as rendering void her marriage with the plaintiff, the latter must show, not only that both she and Githens were eligible to contract that relation with each other, but also that it was regularly solemnized. Besides this, it must be shown that it has never been dissolved at the suit of either party to it, and that Githens was alive at the time the parties to this suit were married to each other. The record falls far short of this standard.” *563 It does not appear from the petition or from the record that Charles Wing, the supposed former husband of Mary H. De Force, formerly May Wing, never obtained a valid decree of divorce from May Wing, now Mary H. De Force. In the case of Brokeshoulder v. Brokeshoulder, 84 Old. 249 (204 Pac. 284, 34 A. L. R. 441), the syllabus reads thus: “Where a marriage has been consummated in accordance with the form of the law, the law indulges a strong presumption in favor of its validity. One who asserts the invalidity of such a marriage because one of the parties thereto has been formerly married and the spouse of such former marriage is still living, has upon him the burden of proving that the first marriage has not been dissolved by divorce or by lawful separation.” (See, also, extended notes to latter case at page 464 et seq., 34 A. L. R.) Where an existing marriage is shown, the presumption of its validity is so strong that proof of a former subsisting marriage, in order to be sufficient to overcome this presumption, must be so cogent and conclusive as to fairly preclude any other result: Smith v. Smith, 32 Idaho, 478 (185 Pac. 67). See, also, Alto v. State Ind. Acc. Com., 118 Or. 231 (246 Pac. 359); Wilcox v. Wilcox, 171 Cal. 770 (155 Pac. 95). The proceedings inaugurated by the petition of Chas. E. De Force, the appellant, were therefore properly dismissed by the County Court and the decree of the Circuit Court affirming such dismissal was right, and should be affirmed. In order for this court to pass upon the question of the estoppel of the petitioner to allege facts showing the invalidity of the divorce proceedings in question, it is essential that such facts be first pleaded. Neither is this court in a position to pass upon the other questions raised and ably argued in the briefs *564 of counsel for the respective parties, in the absence of a petition or pleading, setting forth facts showing the invalidity of the marriage between Mary H. De Force and Elton Clayton De Force, now deceased. Undoubtedly a pleading that wholly fails to state facts sufficient to constitute a cause of suit or action, may be questioned at any stage of the case. Such a question may be raised for the first time upon appeal to this court. No authorities are required to be cited upon this point. The petition commencing these proceedings is fatally defective. Neither the County Court, Circuit Court, nor this court is authorized to declare the marriage of Elton Clayton De Force with Mary H. De Force, solemnized as it is admitted, on the fourth day of February, 1918, to be void, or to decree that Mary H. De Force is not the legal widow and heir of Elton C. De Force, deceased, upon the showing of facts contained in the petition herein. The allegations that are wanting in the petition are not supplied by the answer, or in any other manner. It follows that the decree of the Circuit Court must be affirmed. It is so ordered. Affirmed. Rehearing, Denied. Rand, J., took no part in the consideration of this case.