In re Terry's Estate

Canty, J.

' Frederick Terry resided in St. Paul many years and until the time of his death, in 1892. He died intestate. Letters of administration were taken out on his estate, and matters proceeded until the time for hearing on the final account and ordering the distribution of the estate, when the respondent appeared, and claimed to be the widow of the deceased, which was denied by the next of kin, and found against her by the Probate Court. Thereupon she appealed to the District Court, and on a trial there before a jury, the jury found that at the time of his death she was the wife of said deceased, and this is an appeal from an order denying a motion for a new trial.

The principal’ point urged by appellant is that there is not sufficient evidence to sustain the verdict.

It appears by the evidence that the deceased never was married, unless it was to respondent.

In May, 1885, the respondent, then known as Ellen Balderson, lived in some rooms in St. Paul, and worked in a shirt factory. She seems to have been acquainted with the keeper of a restaurant, who sent her word one evening to call at the restaurant, which she did about 7 o’clock in the evening, and was shown up into a private dining room, where she met and was introduced to the deceased, drank wine, and had supper with him there, and went home late to her rooms. Shortly after, illicit intercourse commenced between them, and for six months she continued her work at the shirt factory, and he visited her at her rooms, and contributed somewhat to her support. The deceased owned a house, which was for rent, and one White was his agent to rent it and collect the rents. Terry sent her to White to rent this house of him, and gave her the money to pay the rent. She rented it, ceased to work in the shirt factory, and went there to live. Terry gave her the money to pay the rent. She paid it to White, and he paid it back again to Terry, never knowing that Terry was in this way paying and receiving rent for his own house, or that he was living there himself. White always knew respondent as Ella Balderson, and gave her receipts for the rent every month in that name. Matters ran along this way for two or three years, when White’s clerk had an altercation with Miss Balderson on account of her failure to pay the rent promptly, and Terry then informed White that he would collect the rent himself. *272 Respondent lived in this house about five years, when Terry sold tbe bouse, and sbe moved to another bouse, which he rented for her, and sbe lived there until tbe time of bis death.

Respondent testifies that during all of tbis time since sbe first moved into Terry’s bouse be lived there with her, and there is no evidence in the case showing that during tbis time be lived anywhere else. Sbe admits that be went on a visit occasionally to see bis relatives; that be never brought any of bis friends or acquaintances to the house; that some of bis brothers and sisters were frequently in St. Paul and at Ft. Snelling, but that sbe never saw any of them, and, except as hereinafter stated, be or sbe never bad any callers or visitors at the bouse, and be never took her out in public. He broke his leg about four years before bis death, and she ^nursed him, and sbe also nursed him during bis last sickness, and be died in tbe house where sbe lived.. Tbis is proved by tbe testimony of several witnesses. One Avitness — a physician who attended both of them at such residence — testified that be did not know her as Mrs. Terry until 1885. Another witness — a dentist — testified that in tbe fall of 1885 Terry requested him to do some work on bis wife’s teeth, and tbe woman who came Avas respondent. Another witness testified that sbe lived in tbe same block, and used to wash and do other work for Terry and respondent at their bouse, and often beard him refer to her as bis wife. Another witness testified that be worked in a saloon where Terry used to resort, and once, three years before Terry died, he gave tbe witness money to get a ton of coal for bis wife, and to have it delivered at tbe bouse. That witness nursed Terry at their residence for two weeks before be died, and often, beard him refer to respondent as bis wife. Another witness testified that Terry came to tbe back yard, and asked her to come in and see bis wife, who was sick, and tbe witness did accordingly. All of tbis evidence is uncontroverted. Terry had no business, and lived on a small income. He was about forty-seven or forty-eight years old at tbe time of bis death, and respondent about thirty-eight.

After tbe death of Terry, White took charge of tbe body, made arrangements for tbe funeral, and sent tbe body to tbe relatives of Terry in tbe east. He also, with tbe assistance of respondent, took charge of clothes, articles of jewelry, books, and other personal effects of deceased, and sent them to such relatives, and sbe consented *273 to these acts. She told White that she had been living with Terry ever since she rented his house of White.

Respondent testified that after Terry’s death she told White that she and Terry were married, but afterwards she admitted that she told him that Terry had promised to marry her, and that he also promised to remember her in his will, and that she was much disappointed because he had not; that she knew that White was appointed administrator at the request of said eastern relatives. '

She informed White that she nursed deceased in his last sickness, and he, as administrator, paid her $20 therefor, and without any suggestion as to how she should sign the receipt for it she signed it “Ella Balderson.” A short time before this she wrote a postal card to White, which she signed with the initials “E. B.,” and she admits that she ‘had several talks with White in which he talked about her being paid for having been Terry’s housekeeper, and that she never at such conversations told him that she was Terry’s wife. She also admits that she first learned that she had a claim to be Terry’s wife when, some time afterwards, she went to consult her present lawyers. She had no relatives in the city. These are substantially the facts of the case.

We are of the opinion that there is not sufficient evidence to prove a common-law marriage. It is conceded that the connection was at first illicit, and that there never was any marriage ceremony. “If parties come together intending and choosing illicit commerce, there being no impediment to marriage, it cannot be presumed without reasons, whatever the law under which they live, that they have altered their choice. A condition of things once shown to exist is presumed to continue.” 1 Bish. Mar. & Div. § 506. See, also, Williams v. Williams, 46 Wis. 464 , ( 1 N. W. 98 ;) Harbeck v. Harbeck, 102 N. Y. 714 , ( 7 N. E. 408 ;) Cartwright v. McGown, 121 Ill. 388 , ( 12 N. E. 737 .)

“The intercourse was originally meretricious, and there was no reason why Blasius should change it. Marriage was not needed as the price to be paid for the gratification of some passion. The girl had already yielded, apparently without much objection, to his solicitation, and was living with him as his mistress. * * * Until the time when they separated, in 1858, they lived together as husband and wife, to the extent at least of sharing the same rooms, and in *274 dicating to hotel keepers, dressmakers, servants, and others, with whom they necessarily had occasion to come in contact, that tlieir relationship was a proper one. Standing alone, such testimony would he very strong evidence in support of an asserted marriage, but it is also the way a man and mistress frequently live, in which it may be said they must live if they frequent respectable hotels; and when it appears that their living together began illicitly, something more than mere continuance, coupled with such declarations as would make that continuance pleasant for them, is needed to support an inference that they were married.” Arnold v. Chesebrough, 46 Fed. 700 , affirmed 58 Fed. 833 .

We do not wdsli to be understood as holding that, even where it appears that at the commencement the intercourse is illicit, subsequently continuing to live together as man and wife may not be sufficient evidence of marriage, when their subsequent relations have all the appearances of the marriage relation, and not merely a part of those appearances; where there is no divided reputation, no secrecy, nothing apparently clandestine, but they acknowledge each other on all occasions and under all circumstances as man and wife, to the extent that persons occupying that relation ordinarily would. But it sufficiently appears that respondent did not herself regard the relation between her and Terry as that of marriage. After his death she signed the receipt and postal card by her maiden name, and did not consider herself the widow of Terry until she was informed by her lawyer that she could make that claim. This is not consistent with'an agreement or understanding that they were married. “We cannot avoid the conclusion that whatever these parties may have done to keep up appearances, neither of them ever supposed they were married. " ® * The real question is how they themselves regarded their relation, and reputation is only important as circumstantial evidence of this.” Cross v. Cross, 55 Mich. 287 , ( 21 N. W. 309 .) See, also, Port v. Port, 70 Ill. 484 .

“Habit and repute do not create the marriage relation. But it exists where, on the parties cohabiting as husband and wife, and being accepted in society and reputed as such, they are presumed prima facie to be such.” 1 Bish. Mar. & Div. § 266. It seems to us that respondent has herself rebutted this presumption.

It is given as a reason for the secret and clandestine manner in *275 which apparently they lived together that such a marriage might be very distasteful to his relatives if known to them, but the acts and admissions of the respondent after his death were sufficient to show that it was not a secret marriage relation, hut an illicit relation, that they were attempting to conceal. 1878 Or. S. ch. 73, § 99, does not change this rule, but is simply declaratory of the rule of evidence at common law.

This rule may seem harsh in this case. The question usually has arisen where, after the parties had done as these parties did, they separated, and one or both married some one else. Years after-wards, when one of them died, the other appeared with this kind of proof of a common-law marriage to make bastards of the children, and take the property of the dead one.

The marriage relation is too important a matter, and of too much consequence to others besides the immediate contracting parties, to permit it to be established by vague or shadowy proof.

The order appealed from should he reversed. So ordered.

Collins and Buck, JJ., took no part.

(Opinion published 59 N. W. 1013 .)