Weidenhoft v. Primm

Beard, Justice. The defendant in error filed her petition in the district court of Fremont County, in the matter of the estate of Julius A. Schuelke, deceased, under the provisions of Section 4835, Revised Statutes 1899, to determine the heirship to the deceased, she claiming to be his widow and sole heir, and as such entitled to the residue of his estate upon'final settlement. The plaintiffs in error appeared and contested her claim and denied that she was the widow of deceased, and alleged that Emilie Weidenhoft, one of the plaintiffs in error, was the mother, of deceased, and that Johanna Schuelke, the other plaintiff in error, was his sister, -and that they were the sole and only heirs at law of siad deceased. There was but one issue in the case, and that was whether the defendant in error was the lawful wife of Julius A. Schuelke at the time of his death. The case was tried to the court without a jury, and the court found that the defendant in error was the wife of said Julius A. Schuelke at the time of his death, and as his widow would be entitled to all of the property of his estate in the hands of the administrator, subject to the payment of the debts of said estate and costs of administration, and entered a decree accordingly. From that decree the plaintiffs in error bring the case here on error. The defendant in error has filed a motion to strike the bill of exceptions from the files and to dismiss the proceed — 349 — ings in error. The motion to strike the bill is based upon several grounds, viz.: that' the pages are not properly arranged and numbered; that the motion for a new trial is not embraced in the bill; and that the bill is not properly certified. This part of the motion has not been seriously urged in oral argument and is not well taken. It is only after an order has been made requiring the rearrangement and numbering of the pages of the transcript, and that order has not been complied with, that the cause may be dismissed in the discretion of the court. (Harden v. Card, 14 Wyo., 479, on p. 497.) No such order was applied for or made in this case. A copy of the motion for a new trial appears in the bill of exceptions, and the bill is properly certified by the judge as a true bill, was filed and became a part of the record in the case, and is enumerated in the certificate of the clerk as one of the original papers filed in the case and transmitted to this court in pursuance of the order directing him to send up the original papers filed in the case. It is the certificate of the court or judge to the bill of exceptions that identifies the motion for a new trial therein contained as the motion ruled upon, and the certificate of the clerk can neither add to nor detract from the recitals contained in the bill. In this case the petition in error was filed July 27, 1907, and the motion to strike the bill was filed November u, 1907. The bill was not filed until November 14, 1907, and it is at least doubtful if the motion can be considered as applying to the bill filed. The motion to strike the bill will be denied. The motion to dismiss the petition in error is based upon the language of Sections 4835 and 4836, Revised Statutes 1899. Those sections are as follows: “Sec. 4835. ■ In all estates now being administered, or that may hereafter be administered, any person claiming to be heir to the deceased, or entitled to distribution in whole or in any part of such estate, may, át any time after the expiration of one year from the issuing of letters testamentary or of administration upon such estate, file a petition in — 350 — the matter of such estate, praying the court to ascertain and declare the rights of all persons to said estate and all interests therein, and to whom distribution thereof should be made.” “SRC. 4836. Upon the filing of such petition, the court or judge shall make an order directing service of notice to all persons interested in said estate to appear and show cause, at the first day of the next ensuing term of the court held in the county where said order is made, in which notice shall be set forth the name of the deceased, the name of the executor or administrator of said estate, the names of all persons who may have appeared claiming any interest in said estate in the course of the administration of the same, as the court or judge may direct, and also a description of the real estate whereof said deceased died seized or possessed, so far as known, described with certainty to a common intent, and requiring all said persons, and all persons named or not named having or claiming any interest in the estate of said deceased, at the time and place in said order specified, to appear and exhibit, as hereinafter provided, their respective claims of heirship, ownership or interest in said estate, to said court, which notice shall be served in the same manner as a summons in a civil action, upon proof of which service, bjr affidavit or otherwise, to the satisfaction of the court, the court shall thereupon acquire jurisdiction to ascertain and determine the heirship, ownership and interest of all parties in and to the property of said deceased, and such determination shall be final and conclusive in the administration of said estate, and the title and ownership of said property. The court shall enter an order or decree establishing proof of the service of such notice.” It is contended that the language, “and such determination shall be final and conclusive in the administration of said estate,” refers to the determination of the question in the district court and makes the judgment of that court final, from which no appeal can be taken; and that, therefore, this court is without jurisdiction. It is argued that — 351 — as our code of probate procedure is taken from the California statutes, and that Sections 4835 to 4837, inclusive, are taken verbatum fronj Section 1664 of the California code, omitting only the provisions contained in the California statute for motion for new trial, and for proceedings in error or appeal; and that this omission clearly indicates an intention on the part of our legislature to cut off the right of appeal and to render the decision of the district court final. An examination of Section 1664 of the California code discloses, however, that it contains the identical language contained in Section 4836 of our statutes, viz.: “and such determination shall be final and conclusive in the administration of said estate,” and then in the same section provides for the tidal of the issues as in civil action, “with like right to a motion for a new trial and appeal to the supreme court,” etc. We think it fair to assume that the legislature of California did not intend to declare in the first part of the section that the judgment of the trial court should be final and conclusive and then in a subsequent part of the same section provide for an appeal to the supreme court. It is undoubtedly true that our code of probate procedure was taken from the California statutes. Some things were omitted, and in other instances, such as the matter now under consideration, a change was made in the division of the law into sections and in arranging those sections under appropriate headings. As originally adopted by the first state legislature, it was Chapter 70, Laws 1890-1, now Division 4, Revised Statutes 1899. In that division, which (with subsequent amendments) contains our law of probate procedure, we find in Chapter 3, embracing Sections 4542 to 4557, inclusive, under the head of orders, decrees, process, minutes, records, trials’ and appeals, the following provisions : “Sec. 4550. Except as otherwise provided in this division, the provisions of the code of civil procedure are applicable to and constitute the rules of practice in the proceedings mentioned in this division. — 352 — “Sec. 4551. The provisions of the code of civil procedure, relative to new trials and appeals — except in so far as they are inconsistent with the provisions of this division — apply to the proceedings mentioned in this division. “Sec. 4552. If no jury is demanded, the court must try the issues joined. * * * Either may move for a new trial on the same grounds and errors, and in like manner, as provided by law for civil actions.” These provisions clearly give a party the same right to appeal from the judgment of the district court in probate proceedings as in civil actions, unless the provisions of Section 4836, above quoted, takes away that right. That it was not intended to and does not do so we' think is evident. The provisions of Sections 4835 to 4840, inclusive, were intended to provide an additional, more adequate and complete method of determining heirship to one dying intestate, and the rights of all parties claiming to be heirs or entitled to distribution in whole or in any part of such estate, than was otherwise provided by law. It authorizes any person so claiming to commence -the proceeding at any time after the expiration of one year from the issuing of letters testamentary or of administration upon such estafe, although the estate might not be in condition for distribution at' that time; and provision is made for bringing in all parties, whether they have appeared or not, and all parties are required to appear and exhibit their respective claims of heir-ship, ownership or interest in the estate. As said in In re Burton, 93 Cal., 459, it was the intention “to provide a mode of proceeding by which all persons who claim ownership of or an interest in the propérty of an estate of a testator or an intestate, whether directly, as heirs and devisees, or indirectly, through the heirs or devisees, may have their rights and interests in and to such property conclusively ascertained, determined and declared, so far at least as the parties before the court are concerned, before distribution is decreed, to the end that the final distribution of the property may be made directly to the persons respectively entitled — 353 — thereto.” It is the determination in such a proceeding of the rights of all persons claiming an interest in the estate that the statute makes final and conclusive, and not the judgment of the district court. In Blythe v. Ayres, 102 Cal., 254, the court said: “Section 1664 was clearly intended to provide the means by which, where there are hostile claimants to an estate, all the conflicting rights thereto may be summarily and finally determined in one proceeding.” And in In re Blythe, 110 Cal., 231, in commenting upon this section, the court said: “It was intended to construct a wider, better and more just and effective method of determining heirship to one dying intestate, where there are many conflicting claimants of such heirship. It gives a longer time, and affords ampler opportunities to contestants to present and litigate their claims, than they formerly had when the ordinary decree of distribution was conclusive; and we have no doubt that the legislature intended by said section to make the decree under it conclusive against all persons, and the unquestioned basis for the decree of distribution which was to follow.” These decisions clearly show the construction placed upon the language, “and such determination shall be final and conclusive,” by the supreme court of California; and that is that when the question has once been litigated to a final determination in such a proceeding (which could only be in this court if either party appealed) it binds all parties and is final and conclusive as to the persons entitled to distribution and their respective rights, and those questions shall not be relitigated upon final distribution or in any other proceeding. In that construction we concur. This view is in harmony with the provisions of Section 4838, which is as follows: “Nothing in sections four thousand eight hundred and thirty-five, four thousand eight hundred and thirty-six and four thousand eight hundred and thirty-seven contained shall be construed to exclude the right upon final distribution of any estate to contest the question of heirship, title or interest in the estate so distributed, where the same shall not have — 354 — been determined under the provisions of said sections; but when such question shall have been litigated, under the provisions of said sections, the determination thereof as therein provided shall be conclusive in the distribution of said estate.” Counsel for defendant in error contend that the decision in the case of Mau v. Stoner et al., 14 Wyo., 183, is decisive of the question here presented. But we do not think that decision is applicable in this case. That was a proceeding for the appointment of a water distributer, was summary in notice, temporary in character, and to meet an immediate emergency. It was not an action or proceeding to determine the title or ownership of property; but, on the contrary, for the preservation of the rights of the parties temporarily; and the statute there construed expressly declared that the decision of the district court, judge or commissioner should be final. (State ex rel. Mau v. Ausherman, 11 Wyo., 410, pp. 432-3.) And it was held that in such a proceeding the legislature had the power to and did make such judgment final and that an appeal would not lie to this court; and that the amendment allowing- an appeal from the judgment of the commissioner or judge to the district court still left the judgment of that court final. For the reasons above stated we are of the opinion that the matter is appealable, and that this court has jurisdiction. The motion to dismiss must, therefore, be denied. We come now to a consideration of the only issue presented to the district court involved here, viz.: was the defendant in error the lawful wife of Julius A. Schuelke at the time of his death ? She bases her claim solely upon an alleged verbal contract of marriage which she claims was entered into between herself and the deceased, March 17, 1901, at Washington, D. C.; and it is upon that alleged contract that her case must stand or fall. At the time of his death, which occurred August 7, 1903, Julius A. Schuelke was a practicing-physician residing in Fremont County, this state. For a number of years prior to December 12, 1900, he was a — 355 — married man-, and on the date last mentioned his then wife procured a decree of divorce from him in the district court of said Fremont County. From the uncontradicted evidence of the defendant in erfor it appears that she was with Dr. Schuelke in Wyoming in 1899, but in what capacity or what their relations were does not appear, but she states that she did not then live with him as his wife. That after that time and prior to March 17, 1901, she lived with him as his wife in the Philippine Islands, where he was an officer in the army. That they returned to the United States in March, 1901, and from August of that year up to the time of his death she lived and cohabited with him as his wife at Thermopolis, in said Fremont County. She testified that they had just returned from Europe and were at her mother's in Washington on March 17, 1901, and were thinking of coming west. That her mother objected to her going unless they were married. That “Dr. Schuelke objected to such formalities of that kind.” That her mother then “got a prayer book and read the marriage service, which the doctor agreed to, and we then entered into an agreement and were married. From that time I considered it such and so did he.” Elsewhere in her testimony, in speaking of their relations to each other, she says, she “objected and often spoke of a civil marriage, which he would not have because he said he did not care for it.” In answer to the question, “At that time when you entered into this particular relation with him, did you there at that time take him as your husband and he take you as his wife ?” she said: “Why, we answered all the questions that were contained in the marriage ceremonies of the Episcopal Church.” She testified that her mother was not an officer authorized to perform the marriage ceremony, and in answer to the question, “Is your mother an ordained minister ?” she answered: “No, indeed, she is not. We had one minister in the family and we thought that was sufficient.” She also testified that the doctor always introduced her as his wife to people in Thermopolis and also at Washington, and. — 356 — that she transacted business for him as his wife. Two letters from the doctor to her were introduced in evidence, the envelopes being addressed, “Mrs. Julius A. Schuelke,” one bearing- date at Philadelphia, Pa., May 5, 1901, and the other Lost Cabin, Wyo., March 25, 1902. In one he addresses her as “My Dear Lola,” and closes it‘with “Yours affectionately.” In the other she is addressed as “Dear Lola,” and it closes with “Yours faithfully.” Also a letter from the doctor to her father, dated November 24, 1902, the envelope being addressed, “Sam W. Small, Escp” In the letter it is addressed to “My Dear Chaplain,” and closes ■ with, “I am as always your sincere friend.” A photograph of the doctor was introduced, on the back of which is written, “To Mrs. Major Julius A. Schuelke, from her husband, the man who adores her at any and all times. She liked him particularly in this costume and he always appealed to her in uniform.” She states that soon after they came to Thermopolis he was going through a trunk and found this photograph which he had had taken in Cuba and gave it to her and wrote that on the back of it, and that she was the person referred to. Two witnesses for- defendant in error testify that the doctor introduced her and held her out as his wife. One of these witnesses testified that on one occasion, when the doctor and this woman were travelng overland in August, 1901, the doctor invited him to go out to their camp and meet his wife. The witness then says: “I asked him if he was married. He said he was. I said, 'When did you get married, doctor?’ He says, ‘Early last spring.’ I says, ‘Where?’ He says, ‘In Washington City.’ ” That they then walked to the camp and the doctor introduced the defendant in error as Mrs. Schuelke. On the other hand, two witnesses testified that at one time she stated that they were going to Chicago and were going to be married. Another witness states that she told him in 1902 that they were not married, that she wanted the doctor to marry her, but he would not. These conversations she denies. The witness also testified that he said to the doctor, — 357 — “I always supposed you were married,” and that he replied, “Yes, a common law marriage; that is all.” That the doctor told him that his (doctor’s) mother had asked him, before their return to the United States, who this woman was, and he told her she was his common law wife. It is also in evidence that she and the doctor had quarrels, at which times he called her the most vile names, told her he would give her a short time in which to leave, that “she had no string on him, and that she had bled two or three men, but she could not bleed him any.” Several witnesses, both men and women, testified that the defendant in error was not regarded as the doctor’s wife; that the general ■impression among the people of the community was that they were not husband and wife; that her reputation for chastity and virtue in Thermopolis was bad. There is also evidence that her reputation for truth and veracity in the community was bad. Some of the witnesses stated that she was g-enerally reputed to be his mistress. The evidence also shows, without contradiction, that in November, 1902, she left the doctor and went to the State of Montana, and there, in her presence and with her knowledge and consent, was registered at a hotel as the wife of another man and occupied the same room at the hotel with him. One witness testified that the doctor told him that he first met her in Cuba and that she followed him up until he couldn’t get raway from her. The will of Dr. Schuelke, bearing date July 30, 1902, which had been admitted to probate, was introduced in evidence. By the terms of the will he revoked all former wills, and particularly one made in favor of Elsie M. Schuelke, formerly his wife, then divorced, and directed all of his property to be distributed upon his decease in such manner as the laws of the state of his residence might provide. The defendant in error is not mentioned or in any way referred to in the will. The foregoing summary, we think, is a fair statement of the material portions of the evidence as it appears in the record. From the evidence in this case there can be no question as to the character of the relations between these parties — 358 — prior to March 17, 1901. According to her own testimony, she was 26 or 27 years of age and he was about 40 years old. They lived together as man and wife in the Philippines without any pretense that a marriage, contract of marriage or even a promise of marriage existed between them. Their illicit relations were entered into voluntarily and were continued, at least until their return to the United States, with a full knowledge that they were illicit. Whatever took place in Washington on March 17, 1901, if anything in fact occurred, looking to a change' in their relations from meri-tricious to matrimonial was not occasioned by the desire of either for such change, but on account of the objections of her mother to her coming west unless they were married. But, notwithstanding this modest request of tire- mother, the doctor, not only then, but ever afterwards, objected “to such formalities,” and refused to have airy marriage ceremony performed and thus acknowledge her as his lawful wife in the manner provided by law. Granting all that she says occurred in the presence of her mother, we think it fails to establish a mutual contract of marriage. (Hantz v. Sealy, 6 Binn., 405; McKenna v. McKenna, 180 Ill., 577.) Aside from her statements of conclusions, that they entered into a contract and were married, all that her testimony amounts to is, that her mother read the marriage ceremony of the Episcopal Church and that they answered the questions. The service was not read by an authorized minister or officer, the prayer book was not put in evidence," nor does it appear how tliejr answered the questions, whether in the affirmative or negative. And when she is asked the direct question if she at that time took Dr. Schuelke as her husband and he took her as his wife, she evades a direct answer and says: “Why, we answered all the questions contained in the marriage ceremony of the Episcopal Church.” But there is no warrant for assuming that the questions, if they had been in evidence, were answered in one way more than in another. The mother of the defendant in error (the only competent living witness as to — 359 — what occurred between the parties in Washington) was not called as a witness nor was her testimony taken; and no reason for not doing so appears in the record. The defendant in error was a party to the proceeding, and the adverse parties ■ defended against her claim and claimed on their own behalf as heirs at law of the deceased. She was, therefore, an incompetent witness as to what occurred between her and the deceased under the provisions of Section 3683, Revised Statutes 1899. (Ullman v. Abbott, Adm’r., et al., 10 Wyo., 97; Sorensen v. Sorensen, 56 Neb., 729; In re Estate of Maher, 210 Ill., 160; Matter of Brush, 25 N. Y. App. Div., 610; Hopkins v. Bowers, 111 N. C., 175.) No doubt had objection been made to her competency as a witness to testify to such transactions, her testimony would have been excluded by the district court. But no such objection was made and the evidence, in the absence of such objection, was competent although the witness was not. (State v. Hughes, 106 Ia., 125; Coles v. Shepard, 30 Minn., 446; Hoog v. Wright, 174 N. Y., 36; Cribbin v. Jarvis et al., 67 Pac., 531.) The fact, however, that the statute makes her an incompetent witness should be considered in determining the weight to be given to her testimony. Much reliance is placed by counsel for defendant in error upon the fact that the parties lived together as husband and wife and that he introduced her as such and addressed letters to her as Mrs. Julius A. Schuelke. That they lived together as man and wife both before and after the alleged contract of marriag'e is beyond dispute; but we do not think it at all strange that a man who has brought a woman into a community and has introduced her as his wife, would when away address letters to her in that way. But in none of the letters introduced does he address her or speak of her as his wife or of himself as her husband. Pie addresses her father as “My Dear Chaplain.” In his will she is not mentioned either by name or as his wife. That one witness testified that the doctor said he was married in Washington City last spring is not entitled to much weight in determining — 360 — the actual relations of the parties when taken in connection with the testimony of another witness that he stated that a common law marriage was all that existed between them, and that he had told his mother, before their return to the United States and at a time when their relations to each other were knowingly and confessedly illicit, that she was his common law wife; and especially when it also appears by uncontradicted testimony that after the date of the alleged marriage contract he called her the most vile names imputing unchastity, told her he would give her a short time in which to leave, that she had no string on him, and that she had bled two or three men, but she could not bleed him. It is undoubtedly true that where a man and woman long-live together, treating each other as man and wife, hold each other out to the world as such, and so conduct themselves toward each other and the community as to gain in the community a general and uniform reputation as being husband and wife, that this is sufficient to create the presumption that they have been lawfully married. “But neither such a course of life nor such declarations make a marriag-e, nor do they even directly or affirmatively establish it. They may, if satisfactorily proved and sufficiently strong, be legitimate ground for inferring that there has been a valid marriage.” (Arnold v. Chesebrough, 46 Fed., 700. See also Cartwright v. McGown, 121 Ill., 388; 2 Am. St. Rep., 105; McKenna v. McKenna, 180 Ill., 577; Clayton v. Wardell, 4 N. Y., 230.) To be evidence of marriage the cohabitation must not have been illicit in the beginning. When the cohabitation is clearly shown (or as in this case confessed) to have been illicit in the beginning, the presumption is that it continues to be illicit until the contrary is established. (Barnum v. Barnum, 42 Md., 251; Brinkley v. Brinkley, 50 N. Y., 184; Imboden v. Trust Co., 11 Mo. App., 220; White v. White, 82 Cal., 427; Powers v. Executors of Charmbury, 35 La., 630; Williams v. Herrick, 21 R. I., 401; Badger v. Badger, 88 N. Y., 546 (42 Am. Rep., 263); Cartwright v. McGown, supra; 26 Cyc., 879, 889; 19 — 361 — Ency. Law, 1206.) In the case at bar it is admitted that the cohabitation of the parties as husband and wife in the Philippines was meretricious; and the fact that they continued such cohabitation after the alleged contract of marriage does not of itself overcome the presumption that such relations continued to be meretricious. The general reputation in the community where the parses resided as to whether or not they are husband and wife is competent evidence as tending to prove marriage. It is in tjie nature of a verdict of the community upon their relations, arrived at from observing their conduct, their manner of life, their deportment toward each other and the community, and their declarations. It is the general impression or belief created in the minds of the people from those things which constitutes the general reputation which may be shown in evidence as tending to raise the presumption of marriage, or the contrary. To be of any value as evidence, such reputation must be general and uniform. (White v. White, supra; Arnold v. Chesebrough, supra; Jackson v. Jackson, 82 Md., 17; Barnum v. Barnum, supra.) In the case before us there is no evidence that the parties were generally reputed to be man and wife; but, on the contrary, the evidence is that they were not generally so regarded and that the general impression among the people was that she was not his wife, but his mistress. -It is true that there is evidence that he held her out and introduced her as his wife, and lived with her as such; but that does not seem to have satisfied the people of the community generally that she was such in fact. During the time, she claims to have been the wife of Dr. Schuelke she knowingly permitted herself to be registered at a hotel as the wife of another man and occupied the same room with him. This is inconsistent with her claim that she was at that time the lawful wife of Dr. Schuelke, and tends to show that she did not so regard herself. Several witnesses testified that her reputation in Thermopolis for chastity and virtue was bad, and two witnesses testified that her reputation for truth and veracity — 362 — was also bad, and no witness testified to the contrary. There is very little direct conflict in the evidence in this case— that is, there are but few facts testified to by the witnesses on the one side which are denied or directly contradicted by the witnesses on the other side. The important- question is, what is the correct conclusion to be drawn from all of the evidence in the case? We think the learned judge of the district court must have given undue weight to the evidence of cohabitation of the parties and that she was introduced and held out by Dr. Schuelke as his wife, and must have overlooked the presumption arising from their former illicit relations and the further fact that their conduct, manner of life and declarations failed to create in the minds of the people of the community the general impression or belief that they were in fact husband and wife. Upon a consideration of all of the evidence, and with due regard to the finding and conclusion of the district court, we are impelled to the conclusion that the defendant in error has failed to establish her claim to be the lawful widow of Julius A. Schuelke, deceased. This’ conclusion renders it unnecessary to consider whether such a contract of marriage as the defendant in error claims was entered into, if proven, would constitute a valid marriage between the parties. The judgment of the district court is reversed, and the case will be remanded to that court with directions to vacate and set aside the decree heretofore entered and to enter a decree adjudging- the defendant in error not to be the widow of said deceased and not entitled to any part of his estate upon final distribution. ' Reversed and remanded. Pottrr, C. J., and Scott, J., concur.