source: Caselaw Access Project

author: FARIS, J. WOODSON, C. J. WALKER, J.

license: Public Domain

text:
      G. L. HENDERSON et al., Appellants, v. HELEN R. RESSOR, or HELEN R. HENDERSON, et al.
    In Banc,
    July 12, 1915.
    1. APPEAL: Abstract: Error of Printer. Where the defects in the abstract, such as its failure to show any entries in the record proper that the motion for a new trial Was filed or overruled or that the bill of exceptions was ever filed, are due to an omission by the printer of certain pages by accident, a motion to dismiss the appeal will be overruled, if appellants prior to the day the case is set down for argument ask leave to file a supplemental abstract supplying the omissions and accompanying such application by such supplemental abstract, and if respondents are in nowise hurt by the amendment.
    2. MARRIAGE: Annulment: Voidable: Collateral Attack: By Kindred. Under the statute of Arkansas providing that a marriage may be annulled for incapacity, fraud or coercion, and that it “shall be void from the time its nullity shall be declared by a court of competent jurisdiction,” marriage solemnized in that State is only voidable, and cannot be collateraly attacked after the death of one of the spouses, and the kindred of the deceased spouse cannot maintain a suit to have it annulled.

      Held, by WOODSON, C. J., that, if the contract of marriage is personal to neither of the contracting parties, the heirs of the deceased spouse have the same right to contest a voidable marriage that they do to contest a void marriage; that the subject-matter of a suit to dissolve a marriage, the res, is the marital relation itself, which is always dissolved by death, and the parties to a marriage contract are the spouses; and one of the parties being dead and the relation dissolved by death, with no suit having been previously brought by either, the kindred of the deceased, whose only interest in the matter is to obtain possession of the property which the law, as a pure incident of the marriage relation continued in amity till death, gives to the survivor, cannot maintain a suit to have that relation annulled.

      Held, by WALKER, X, dissenting, that the statute of Arkansas, which declares that whenever a party shall, from want of understanding, be incapable of consenting to a marriage, the same “shall be void from the time its nullity shall be declared by a court of competent jurisdiction,” makes possible an annulment of the marriage only by a direct proceeding between the spouses and during the lives of both, and therefore its operative effect is to declare a marriage void in substance simply voidable as to procedure; and this court should not be governed by such a law, which if it does not involve an absurdity, at least contains a contradiction.
    3. -: -: Divorce: Distinction. The distinction between an action for divorce from the bonds of a valid marriage and an action in a court of equity to annul a void or voidable marriage is that an action to annul largely follows the ancient jurisdiction of equity and lies for causes existing at or before the marriage, while an action for divorce lies for causes which have arisen since the marriage, or for causes of which (though existing at the time of the marriage) the party seeking annulment was ignorant.
    4. -: -: Lex Loci Governs. Unless a marriage contract is voidable under the laws of the State in which contracted, or unless the marriage (valid where celebrated) violates some distinctive local policy, such as the laws against incest, polygamy or miscegenation, it will not be voidable in the State of the spouses’ domicile.

      Held, by WALKER, X, dissenting, that the rule that a marriage valid where made is valid everywhere has no application to the question of the matrimonial capacity of the parties, which is to be determined by the domiciliary law of the parties at the time the right of action accrued, but is properly applicable only as to matters affecting the manner and mode of the solemnization of a marriage and the preliminaries thereof.
    •5. -: -: Weight of Evidence: Deference to Chancellor. A suit to annul a marriage being of equity jurisdiction, the appellate court tries it de novo and may reach a finding contrary to that of the chancellor below; but where the evidence is so evenly balanced as to leave the .appellate court in doubt as to where the superior weight of credibility lies, it will defer to the finding of the trial chancellor.
    6. -: -: Contest for Property. Where the suit brought by-surviving kindred to have the marriage of the deceased husband annulled on the ground of his mental incapacity or on the ground that it was the outgrowth of fraud, is but a contest for property, and the evidence is evenly balanced, the finding should be in favor of the validity of the marriage.

      Appeal from Jackson Circuit Court. — Hon. Thomas J. Seehorn, Judge.
    Affirmed.

      G. W. Prince and T. A. Witten for appellants.
    (1) A judgment entered by agreement of parties where the agreement is procured by fraud, misrepresentation or concealment of the facts by one of the parties, can be set aside 'by proper proceeding in a court of equity, for that purpose. State ex rel. v. Engleman, 86 Mo. 563; Golden v. "Whiteside, 109 Mo. App. 579; Trefz v. Ins. Co., 8 Fed. 177; Marine Ins. .Co. v. Haden, 7 Cranch, 336. (2) Where one of the parties to a marriage contract was mentally incapable of contracting, the marriage is void and not voidable, and can be judicially declared null and void after the death of one of the parties. This is true in Arkansas, under proper construction of sections 4906 and 4910 of the Revised Statutes of Arkansas. Bishop on Marriage and Divorce, 634-37-38'. The cases cited by counsel for defendant, on this point and relied upon by them, namely, Yalleau v. Valleau, 6 N. Y. 207; Gall v. Gall, 114 N. Y. 413; Taylor v. Taylor, 71 N. Y. Supp. 413, are not in point, because they construe a statute of New York providing that certain marriages are “void only from the time their nullity is declared by a court of competent jurisdiction. ’ ’ The word 4 4 only ’ ’ is not in the Arkansas statute, which is otherwise the same as the New York statute. Pingree v. Tilden, 41 Vt. 46; Orehardson v. Caffield, 171 111. 14; Gallings v. Williams, 27 N. C. (Ired.) 487; Chapin v. Stone, 77 Mo. App. 529; Higgens v. Breen, 9 Mo. 497. (3) Notwithstanding a marriage is absolutely void, a decree judicially declaring it so is necessary out of consideration of property rights and the future status, of other parties and social good order. Weightman v. Weight-man, 4 Johns. Ch.-; Powell v. Powell, 18 Kan. 379; Waymeyer v. Jetmore, 222 Ohio St. 274.

      Joseph 8. Rust and L. E. Waters for respondents.
    (1) • The marriage was a valid marriage. Whatever may have been the condition of his mind at other times, its condition at the time of the marriage itself must govern the question of his capacity to enter into a marriage contract. If the testimony of intelligent and reputable witnesses who were present at the time is to he believed, the conclusion is irresistible that deceased was in a sane condition of mind. Henderson v. Henderson, 141 Mo. App. 559. They were engaged to marry as early as January 1, 1905; when lie gave her the engagement ring engraved “E. to H., January 1, 1905,” and she could not be charged with fraud or undue influence if she had required the doctor to keep his engagement. Cole v. Holliday, 4 Mo. App. 98; Bravhill v. Norton, 175 Mo. 199; Baldrick v. Garoly, 66 Iowa, 14; Bank v. Sneed, 97 Tenn. 120. The question in a marriage is whether the alleged insane person acted rationally regarding the particular marriage in dispute. Not whether it was wise, hut whether it proceeded from a mind sane as respects the thing done. 1 Bishop on M. & I)., sec. 600. A contract made with a person of unsound mind but not under guardianship is only voidable; and if land is purchased of such a person in good faith and no advantage has been taken, it will be upheld. Blount v. Spratt, 113 Mo. 55; McKenzie v. Donnell, 151 Mo. 455; Wells v. Benefit Assn., 126 Mo. 637. The most reasonable test is believed to be, the ability to understand the nature of the marriage contract and not the ability to enter into ordinary contracts or to make a will. 2 Nelson on Mar. & Div., sec. 658; Maddox v. Maddox, 114 Mo. 48; Knapp v. Trust Co., 199 Mo. 663; 1 Bishop on Mar. & Div., sees. 600-1. Incoherence of thought has reference to the ideas expressed or conveyed to the hearer, rather than to the condition of the mind of the speaker. Nash v. Hunt, 116 Mass. 237; Lawson, Ex. Ev., 537. If of unsound mind at the time, but afterwards, during a lucid interval, consented to the marriage, and lived with defendant as his wife, the marriage could not thereafter be annulled for mental incompetency. Gross v. Gross, 96 Mo. App. 489; Johnson v. Johnson, 45 Mo. 606; Busch v. Busch, 81 Mo. App. 562. (2) If Dr. Henderson was incapable of consenting to the marriage for want of understanding, then the marriage was a voidable, marriage under the Arkansas statute, and if voidable it could only have been annulled in the lifetime of the parties. It is a principle of international law that a marriage celebrated in other States and countries if valid by the laws of the State or country where celebrated, is valid in this State, even though the same might, by the force of our laws, be invalid if contracted here. Bank v. Galbraith, 1491 Mo. 537; Johnson v. Johnson, 30 Mo. 85; Story on Con. of Laws, sees. 114-119. In this State, but two classes, of marriage are declared void by statute. Under section 4312, marriage between certain persons on account of their relationship, and under section 4313, where either of the parties has a former wife or husband living. R. S. 1899, secs. 4312-4313. Where consent was given under duress the marriage.is voidable. Willard v. Willard, 65 Tex. 297; Heneger v. Lomas, 44 N. E.- (Ind.) 462; Gould v. Gould, 78 Conn. 242. Marriages are voidable, which are obtained with imperfect consent, as where there is fraud, error; duress or the party is incapable of giving consent from want of age or mental capacity. And they are' good for every purpose until avoided. 2 Nelson M. & D., sec. 569; Clark v. Field, 13 Yt. 460. A voidable marriage can only be inquired into by a direct proceeding between the parties and during their joint lives. 2 Nelson M. & D., p. 534, sec. 569'; Wiser v. Lockwood, 42 Vt. 720.
   FARIS, J.

Action in equity, brought in the Jackson Circuit Court by the kin and collateral heirs of one Ernest L. Henderson, deceased, to annul, on the ground of mental incapacity, the marriage of deceased to defendant Helen R. Henderson, and for other incidental relief. Plaintiffs being cast below have appealed.

Defendant Tillhoff is sued in his representative capacity as the executor of the last will of the deceased, and because he refused to join in the action as a party plaintiff. The Corn Belt Bank is made defendant because, as it is averred, it has in its custody as bailee for defendant Helen R. Henderson, certain notes and securities delivered- to her by virtue of a former settlement mutually made between the adversary parties herein. Among the incidental matters referred to above may be mentioned a temporary injunction, which was sued out with a view of preserving the status quo, :but which upon the trial of a motion to that end, was dissolved. From this judgment of dissolution, plaintiffs appealed to the Kansas City Court of Appeals, where the judgment below was in all things affirmed. [Henderson v. Henderson, 141 Mo. App. 540.] With the exception apparently of some testimony in rebuttal which cannot be said to disturb materially the balances of credibility on either side, the motion to dissolve the injunction was tried on the identical evidence on which the instant case was tried. In fact the instant case, so far as we can gather from a very unsatisfactory record, seems to have been largely but a trying over again of the case of Henderson v. Henderson, supra. Be this as may be, the facts there are in all material respects the facts here. Those who desire may read them there; we do not deem it necessary to again burden the books with them.

Many questions of estoppel were urged in defense by Helen R. Henderson, tbe principal defendant, arising, it is alleged, out of orders for allowances made and judgments of distribution solemnly entered by tbe probate court of Jackson county and not appealed from; but since the main controversy here is waged about tbe question of whether Ernest L. Henderson was sane or insane, mentally capable or an imbecile from tbe ravages of disease, when be married defendant Helen, and since this is tbe only thing decided by tbe court nisi, from which this appeal is.taken, we may treat it as tbe court below treated it. In this phase tbe court below found thus:

“Tbe court being fully advised of and concerning tbe premises finds tbe issues for tbe defendants and further finds that Ernest L. Henderson, at tbe time he and Helen R. Ressor were married, was sane, and that said marriage was a valid marriage.”

And thereupon tbe court nisi simply adjudged upon tbe above finding that plaintiffs take nothing by their action and that defendants go hence. Tbe above is tbe only finding and judgment before us in this case.

Both said Ernest L. Henderson, tbe deceased, and Mrs. Helen R. Ressor, then a widow, were domiciled in Kansas City prior to tbe first day of June, 1906. About this time deceased, who was suffering from bulbar paralysis, went for tbe benefit of bis health to Hot Springs, Arkansas, accompanied by defendant Helen R. Ressor, who went as bis nurse. Mr's. Ressor says, and in this she is corroborated by at least two other witnesses, that she bad become engaged to marry deceased about January, 1905, and that tbe marriage-between them was to have occurred ■ prior to a trip-which deceased made to Europe in June, 1905, but that her illness at that time caused a postponement of the-marriage. When deceased returned from Europe in August, 1905, be was ill and was forced to go to a sanitarium at Battle Creek, Michigan. Following an attack of pneumonia, in which defendant Mrs. Ressor nursed him, the engagement was temporarily broken, but again renewed, Mrs. Ressor tells us, prior to the visit to Hot Springs in June, 1906. While at Hot Springs deceased was, as we forecast above, cared for and nursed by Mrs. Ressor till August 10, 1906, when a marriage ceremony was duly and legally — confessedly so far as the outward forms of law are concerned — performed between them. After this marriage two of the brothers of deceased, J. 0. Henderson and Gr. L. Henderson, who are plaintiffs here, visited him and defendant Plelen at Hot Springs, while they resided together outwardly as spouses. Letters written to him afterwards by these brothers expressed surprise at his favorable prognosis and one of them referred to his “marvelous improvement.” Nevertheless, practically all of the witnesses agree in saying that from the time he went to Hot Springs in June till he left there some time in December, 1906, his physical condition was deplorable and repulsive. He and defendant Helen returned to Kansas City about January, 1907, and lived there together, apparently at least as husband and wife, till he died in June, 1907. Helen Henderson says there was sexual consummation of the marriage some ten days after its celebration, but her letters shortly after the marriage ceremony say that in deceased’s then physical condition sexual consummation was impossible, and that even if possible, his physical condition regarded, it would have been dangerous.

Toward the sole issue here, viz: the mental capacity of.deceased to validly make and enter into a marriage, said by our Missouri statute to be “a civil contract” (Section 8279, R. S. 1909), practically the whole substance of the several witnesses ’ pertinent testimony was directed. The whole substance of this testimony is fairly set out in the case of Henderson v. Henderson, 141 Mo. App. 540, to which reference for further facts is hereby made.

OPINION.

I. Three points deserve our attention. One of these which has to do with the sufficiency of the abstract *s ra*sed by the respondents.- Specifically,, this point is that the abstract filed is insufficient in that it fails to show by any entries contained in the record proper that the motion for a new trial was either filed or overruled, or that the bill of exception» was ever filed. In the abstract originally filed here these defects enured. But afterwards and prior to the day on which the case was set down for argument in-Division Two, but after joinder in. error, appellants asked, by formal motion, leave to file a supplemental abstract (which abstract was lodged here with the motion) in which the defects complained of were cured. This motion was accompanied by an affidavit of the-printer to the effect that certain pages of the abstract .were by accident omitted when the printed abstract was being assembled for binding. The facts presented being in a sense novel, inasmuch as amendments of abstracts after joinder in error are forbidden by our rules, we took this motion with the case.

The affidavit of the printer is corroborated apparently by the patent physical fact that there are three blank pages where the omitted entries ought to be and from further fact that in the paging of the abstract before us there occurs at the same place with' the blank pages an hiatus of eleven pages. In short, the page preceding the first blank page is numbered 63 and the page following the last blank page is numbered 75. From these facts it will be seen that appellants are not in default except in so far as lack of diligence may be argued from their failure to note the defect of omission in the abstract till this defect was called to their attention by respondents’ motion to dismiss the appeal. This they explain by the suggestion that the record is very voluminous, containing as it does 990 closely printed pages, and that the time to serve it under our rules had about elapsed when it came from the printer, and so in the hurry the fact of the omission of certain pages was overlooked.

The complaint is based upon the strict letter of our rule number 4, and is highly technical; the omission had been corrected before our hearing of the ease and the argument thereof; respondents are in no wise hurt, and so we do not think we should put the appellants out of court upon a technicality so bald and merit-less as that presented by respondents’ motion to dismiss. We will overrule the request for a dismissal of. the appeal and permit appellants to formally file their supplemental abstract heretofore lodged in the cause with our clerk.

II. Many contentions pro and con are made touching whether appellants, whom we may for clarity call plaintiffs, may maintain this action at, all 1111 c^er the peculiar facts of this case. There-is no very strenuous contention made by defendants that an action may not be brought at all after the death of one spouse to annul the marriage contract on account of lack of mental capacity of the deceased spouse to enter into a marriage contract. The point of the contention made is, that if we grant that such an action can ordinarily be brought (and that it will lie defendants practically concede), it cannot be brought in this ease on account of the provisions of a statute of the State of Arkansas, the place of contract, which statute was offered upon the trial and which it is urged serves to make this marriage voidable only, and that being voidable and not absolutely void, an action cannot be maintained by the heirs of the' deceased spouse. In other words, the contention is that a marriage contract which, is voidable only and not void cannot be attacked collaterally after the death of one of the parties to it. This statnte reads as follows:

“Sec. 5175. "When either of the parties to a marriage shall be incapable, from want of age or understanding, of consenting to any marriage, or shall be incapable from physical causes of entering into the marriage state, or where the consent of either party shall have been obtained by force or fraud, the marriage shall be void from the time its nullity shall be declared by a court of competent jurisdiction.” [Kirby’s 1904 Dig. of Ark. statutes of 1904.]

We cannot find that his statute has ever been construed by the Arkansas courts. Similar statutes in all material respects have been very seriously criticised by Mr. Bishop in his excellent work on Marriage, Divorce and Separation. That there is palpably much lack of art in the drawing of this statute must be conceded, and that it states a truism and a thing a layman wonld know, goes without saying; but that its meaning is fairly apparent and that, its intention is to a marked degree salutary likewise goes without saying-. To our minds it means that the courts and not the individuals affected must in all cases be allowed to sit in judgment upon the question of the existence of nonage, or mental incapacity, or impotence, or fraud, or duress to an extent which will furnish sufficient cause for annulment. Its effect is to render the marriage of persons under the age of consent, or the marriage of the mentally incapable, as also marriages contracted, by fraud or force, voidable only. And being so voidable and not void, legally vulnerable to attacks made in the lifetime of the spouses only. This' proposition is concisely stated in 2 Nelson on Divorce and Separation,- section 569, where it is said:

“A voidable marriage can only be inquired into by a direct proceeding between the parties and during fhe lives of both of them. Until it is set aside it is practically valid for all purposes; but when set aside the decree renders it void from the beginning. Marriages are voidable which are obtained with imperfect consent, as where there is fraud, error or duress, or the party is incapable of giving consent from want of age, or mental incapacity, or where one of the parties was impotent before marriage. At the common law the canonical disabilities, consanguinity, affinity and impotence, rendered the marriage voidable and not void. This is, however, modified by statutes declaring certain marriages void for consanguinity and affinity. Voidable marriages are, of course, good for every purpose until avoided; the children are legitimate; the-survivor is entitled to the rights of a husband or wife, and the wife is entitled to dower. During the existence of the voidable marriage neither party can marry again.”

On the other hand if a marriage be absolutely void and not merely voidable, it may be attacked to defeat the dower given by statute to the widow. [Higgins v. Breen, 9 Mo. l. c. 497.] Such attack is palpably a collateral attack. It should be kept in mind that we are-not dealing with divorce; that the case is not one for a divorce — for the finger of death has long ago written and entered herein an unappealable final decree — but a suit in a court of equity for annulment of a marriage-averred to be void ab initio for lack of mental capacity to consent to it. The distinction between an action for divorce from the bonds of a valid marriage and an action in a court of equity to annul a void or voidable marriage as applied to our Missouri statutes, seems to-be that the latter largely follows the ancient jurisdiction of equity (Meredith v. Meredith, 79 Mo. App. 636; Ridgely v. Ridgely, 79 Md. 298) and lies for causes existing at or before the marriage, while the former lies for causes which arose subsequent to the marriage, or for causes of which (though existing at the time of the marriage) the party seeking annulment was in ignoranee. [Pyott v. Pyott, 191 Ill. 280.] “A right of action for the annulment of. a marriage accrues immediately upon knowledge or discovery of the invalidating fact or circumstances, and, unless sooner barred by some Statute of Limitation, continues until the marriage is dissolved by the death of one of the parties, after which event no decree of nullity will be made except under very exceptional circumstances.” [26 Cyc. 909.] Happily we need not here inquire or rule whether in any case it be or be not against good morals to allow collateral kin and heirs, or any other heirs to overturn a marriage after the death of one of the spouses for mere lucre’s sake upon some one or more of the many grounds of equity jurisprudence. We rest upon solid ground in ruling, that in no event can a marriage which is not absolutely void, but merely voidable, be attacked in equity by the heirs of a deceased spouse after the death of the other spouse. [1 Bishop, Marriage and Divorce, 292.] Since the marriage in the instant case was entered into in the State of Arkansas its validity is to be construed by the Arkansas statute (Banks v. Galbraith, 149 Mo. l. c. 536; 26 Cyc. 829; 2 Nelson, Divorce and Separation, sec. 568, supra), which makes it voidable only.

We concede that there exists much contrariety of opinion upon the question of whether the well-settled rule which requires the “validity of a marriage” to be tested by the lex loci, connotes within the purview of this validity, not alone matters of form and ceremony, but the more intimate matters of the inherent nature, force and effect of the contract thus made. In other words, if such a contract be only voidable by the lex loci, will it nevertheless be void by the lex domicilii, if it would have been void in the place of domicile if entered into there? That the converse is almost universally true, i. e., that a marriage void where celebrated is void everywhere else, there can be little doubt. [26 Cyc. 831, and cases cited.] We cannot find that this point has ever been considered or passed upon directly in this State; though by the most obvious analogy, we have agreed to it. For example, we have held marriages according to the Indian- customs and forms valid, even though such marriages in form and ceremony scarcely reached the status of a common-law marriage and notwithstanding such marriages recognized the right of the husband to dissolve the same and put away the wife at his — and even at either spouse’s — volition. [Boyer v. Dively, 58 Mo. l. c. 520; Johnson v. Johnson, 30 Mo. 72.] A contrary view is said to be taken in England (Brook v. Brook, 9 H. L. Cas. 193) and seemingly upon principle in some of the American States, yet the reasons for these holdings will be found to be bottomed for the most part upon the fact that the marriage held to be invalid (though valid where celebrated) violates some distinctive policy of the State or country of the domicile, e. g., laws against incest, polygamy, or miscegenation. [Hills v. State, 61 Neb. 589, 57 L. R. A. 155, and cases cited in note.] In the very excellent and carefully considered note appended to the above case, the learned author, at page 173 (57 L. R. A.), says:

“The doctrine that best accords with the decisions, though there is a decided conflict of authority on the point, is that the lex loci governs with respect to the matrimonial capacity of the parties, as well as with respect to the manner or form of solemnization. . . . In some of the cases the decisions condemning marriages celebrated elsewhere between persons domiciled at the forum are apparently referred to the principle that the lex domicilia, and not the lex loci, governs with respect to matrimonial capacity; but, as pointed out, supra, most of these decisions are, at least, so far as their facts are concerned, explainable upon the theory that the marriage in question was contrary to the distinctive public policy of the forum. When that is the case, it is, of course immaterial for practical purposes whether the lex domicilii or the lex loci be regarded as the general doctrine, since, even if the latter be adopted as such, it will not apply to the particular ease. When, however, the marriage is not contrary to the distinctive public policy of the forum, it may be of vital importance whether the lex loci or the lex domicilia is adopted as the test of matrimonial capacity, and it is apparent that eases of this kind are entitled to greater weight upon the question whether the lex loci or the lex domicilia governs, than cases in which it was not necessary to choose between the two. When due attention is paid to this distinction, it is believed that the weight of authority, in America at least, will be found to establish the lex loci rather than the lex domicilia as the general test of matrimonial ca^ paeity, subject to the exceptions referred to.”

The view to which we here lend our concurrence is., likewise approved in Ruling Case Law, wherein the rule is thus stated:

“There are expressions in the opinions in some of the cases which seem to favor the very questionable doctrine that, while the lex loci governs with respect to-matters affecting the manner or mode of solemnization of the marriage and the preliminaries thereof, the question of matrimonial capacity is to be determined by the lex domicilia; and some of the decisions seem to be the result of the application of that doctrine. This is particularly true in the case of the English decisions. But most of these cases can readily be classified into one of the two well-recognized exceptions to the general rule — first, marriages which are polygamous, or which are incestuous according to the general view of Christendom; and secondly, marriages which the local lawmaking power has declared shall not be allowed any validity. By the first exception the Christian standard of marriage is applied to every marriage, wherever celebrated and without reference to the domicile of the parties at the time of its celebrar tion. If the marriage falls below this standard, it will be held void although it may be valid according to the lex loci and lex domicilia. In regard to the second exception the legislature has, beyond all possible question, the power to enact what marriages shall be void in its own state, notwithstanding their validity in the state where celebrated, whether contracted between parties who were in good faith domiciled in the state where the ceremony was performed or between parties who left the state of domicile for the purpose of avoiding its statute, when they come or return to the state; and some of the states have in terms legislated on the subject. In conclusion it may be said that the better rule in this country, supported by some authority in England, and the one in truest accord with advancing conceptions of justice is that capacity or incapacity to marry depends on the law of the place where the marriage is celebrated, and not on that of the domicile of the parties.” [5 R. C. L. 998.]

Since then the marriage is merely voidable and one of the spouses is dead, it may not be attacked here by those whose sole interest in it is sordid.

III. We could well have reached this same conclusion upon another ground, to-wit, that of the weight of the evidence. It is but a reiteration of the holding in a thousand books to say that since this is an equity ease we try it de novo and may find contrary to the finding of the learned chancellor who tried it below, if we believe the weight of the evidence so falls; but that when the evidence is so evenly balanced as to leave us in doubt where the superior weight of credibility lies, we may •defer to the finding of the court below. [Morgan County Coal Co. v. Halderman, 254 Mo. 596.]

Upon this view we need not rely upon the holding .alone of the learned chancellor; we may defer if we see fit from its persuasiveness to the finding upon the questions of fact involved, to the decisions of the Kansas City Court of Appeals, and to the ruling of yet another chancellor. For upon a motion in this case to dissolve the preliminary injunction herein issued and upon the dissolution thereof an appeal was prosecuted to the Kansas City Court of Appeals. The evidence upon which the case was tried upon that phase seems to have been practically identical with that in the instant case. Nevertheless, that court (Henderson v. Henderson, supra) refused to disturb the finding of the court below, holding that “it cannot be said that that [the evidence] of plaintiffs perceptibly overbalances or outweighs that of defendant.” [Henderson v. Henderson, 141 Mo. App. l. c. 559.] It does not perceptibly militate against this view that the learned Court of Appeals was to an extent also considering the aspect of fraud, which charge has since been waived by plaintiffs in their briefs. The weight of the facts which in this case would abrogate it for the one cause would also serve to nullify it for the other.

The Court of Appeals set forth in the case supra all of the facts. These facts may be read in the opinion of that court, so we need not again print them in our reports. They stand there in that case just as they would stand here were we to set them forth again; indeed, it may well be that the Court of Appeals could have made them far stronger in favor of the views held by it, than it did make them. Two courts nisi and the Court of Appeals have weighed these identical facts and have held that there was no such clear and cogent proof of lack of mental capacity as the law exacts. [Payne v. Burdette, 84 Mo. App. 332; Slais v. Slais, 9 Mo. App. 96; Meredith v. Meredith, 79 Mo. App. 636.] With their findings and conclusions of fact we heartily agree. Touching this point and another here important, the learned judge who wrote the opinion for the court in Henderson v. Henderson, supra, at page 559 said:

“If we are wrong in onr conclusion as to the weight of the most credible evidence, it must be conceded that there is such a conflict in that respect, that it cannot be said that that of plaintiffs perceptibly overbalances or outweighs that of defendant. In order to authorize a decree, a.t this late day, after the death of one of the parties, annulling the marriage on the ground of want of capacity of the deceased, such want of capacity should be shown by evidence clear and cogent, as a court of equity in such a case will not weigh the pros and cons in order to determine to a nicety which way the scales preponderate. There is something more at stake than an ordinary contest over the rights of property. Figuratively speaking it is a resurrection of the dead and demanding the severance of a tie he contracted in the flesh. The infirmities of his mind, and the afflictions of his body and the inmost secrets of his private life are laid bare to public scrutiny.

“We do not want to be understood as entertaining the opinion that the remedy should be denied in all instances, for we can well understand that the circumstances may be such as would demand the intervention of a court of equity, where to withhold its aid would effectuate a grevious wrong. But this is not a case of that kind, at best it is but a struggle for property.’’

It follows that for both or either of the reasons set forth above, the judgment should be affirmed. Let this be done.

Graves, Bond and Blair, JJ., concur; Broion, J., concurs in paragraphs one and three and in the result; Woodson, C. J., concurs in separate opinion; Walker, J., dissents in opinion filed.

WOODSON, C. J.

(concurring). — This case was first assigned to Division Number Two of this court, and after being argued and submitted, was decided by a divided court. For that reason, on motion, the cause was transferred to Court in Banc, where the cause was reargued and submitted. At that time I field a dissenting opinion to the divisional opinion, which was submitted for acceptance or rejection. The divisional opinion was rejected by a majority of the members of the court, and assigned to Brother Paris to rewrite, which in my opinion from his viewpoint has been well done, but not fr mi mine, in certain respects.

• I therefore refile herein my dissenting opinion heretofore filed to the divisional opinion, as a concurring opinion in the result of the majority opinion filed in Banc.

I wish here to add a query, viz: If, under the Arkansas ■ statute the contract of marriage was only voidable, as my learned associate holds, and yet not personal to the deceased and his wife (as I contended it was), then, by analogy and painty of reasoning, why may not the collateral relatives in this case attack the voidable contract as well as a void one! In either view of the case I respectfully submit that if the contract of marriage is not personal to the contracting-parties, then no valid reason can exist to prevent the heirs from contesting the one, if they have the legal right to contest the other.

According to the majority opinion nothing but the title to the land is or can be involved in this case, beyond a suit against a dead man, who has and can have no representation to contest the validity of such a contract.

This must be self-evident.

For the reason suggested I concur in the result reached in the majority opinion, and as a further amplification of my reasons I here append my dissent from the opinion written in this case by my learned Brother in Division Two, both as to the conclusions of facts found and the principle of law applied thereto.

I. After a careful reading and due consideration of the voluminous record in this case I have reached the conclusion that Ernest Henderson, deceased, the husband of Helen R. Henderson, the principal defendant herein, was mentally capable of contracting the marriage with her, mentioned in the pleading and evidence.

This alone in my opinion should constitute a finality of this case in favor of the defendants; hut these observations regard only the parties to this suit, while the principles of law announced therein, if adhered to, would be far reaching and in the future effect the entire State.

For the reason stated I hereby wish to vigorously state my opposition to any and all lax, flexible and loose rules of law which will permit the craving for dollars and cents to question the validity of a marriage after the death of one or both of the contracting parties.

With no design to criticise any one, but with due deference to all, I must insist that, in my opinion, no court, after due consideration of the marriage contract, the marriage and domestic relations that exist between man and wife, taken in connection with the great interest that society has in those matters, and their far-reaching influence-and effect upon all government, as well as upon mankind itself, can, with any shadow of reason, justification or devotion to country, after the death of one of the parties to the contract, neither of whom ever objected thereto, write the words, “I hereby in the name of the law, burst asunder that which God has joined together;.” and especially when the love of money, the root of all evil, constitutes the sordid wedge relentlessly driven into the sacred memory of the holy bond of matrimony, and that too, after the God with whose permission it was tied, has in his wisdom called one of the contracting parties unto himself to be judged according to the book of life.

II. What is it, that plaintiffs, the collateral heirs at law of Ernest L. Henderson, ask this court to do ? Answer: First, to divorce said Ernest L. Henderson, deceased, from Plelen R. Henderson, his surviving widow; and, second, to restrain her and her codefendants (who are acting for her) from receiving and enjoying any of the property her husband died seized of, ' which under the laws of the State belong to her as an incident of the marriag’e.

In other words, plaintiffs claim that at the time Ernest L. Henderson married the defendant, Helen R. Henderson, he was insane, so unsound in mind that he did not know or understand what he was doing, therefore the contract of marriage entered into by and between them and solemnized in conformity to the laws of God and man, was absolutely null and void, notwithstanding the fact that thereafter they lived together for many months, if not for years (I disremember the exact time), as man and wife, without objection or protest from the plaintiffs or any one else, until his death separated them and thereby unlocked the doors to the vaults of gold here claimed by his collateral heirs.

Now, how do they propose to accomplish that end? Answer: By inducing this court to solemnly decree said marriage contract, entered into by and between them, solemnized according to law, dissolved and for naught held.

What was that contract, after having been so solemnized? Answer: It was a marriage — a status which the law, by their agreement, placed upon them.

In litigation that status or that relation is defined to be the res or the subject-matter of the suit, and consequently in the very nature of things, a divorce’ suit or any proceeding to dissolve that relation must in the very nature of things be a proceeding in rem. [Gould v. Crow, 57 Mo. 200; Anthony v. Rice, 110 Mo. 223.]

This is the basis upon which all suits for divorce and all proceedings to dissolve a marriage are predicatecl. The husband and the wife during their lifetime are and must be the parties to the suit, either in their own persons or in the names of their representatives; and the subject-matter of all such suits is the marriage contract — that is, the' marriage relation — the res.

This is true of all the States of the Union, and is recognized in many cases by the Supreme Court of the United States. In fact, such a suit or proceeding could not in the very nature of things be maintained except upon that theory.

To illustrate: Suppose no property rights were involved, and for many reasons a dissolution of an unholy alliance even after the death of one of the parties, might be desired by friends and relatives, grounded upon reasons more sacred and valuable than red gold; who, under the law, in such a suit would or could represent the deceased party to the contract? No one, of course, for the obvious reason that all suits, civil and criminal, must have a party or parties and a subject-matter of the smt — otherwise there would be nothing for the court to adjudicate.

This is true, although in a sense somewhat modified even in ex parte proceedings and proceedings in rem, which are familiar to the bench and bar.

The identical question here presented was decided by this court in the case of Lieber v. Lieber, 239 Mo. 1. The only difference between the facts of that case and this was: In that case the marriage had been dissolved, first, by a decree of court, while both parties were living, and, second, by the death of Mr. Lieber some forty years subsequent thereto, both having occurred prior to the institution of that suit; while in the case at bar, the marriage was dissolved by the death of Mr. Henderson before this suit was instituted. So it is perfectly apparent that, in so far as this question is concerned, there was no difference whatever between the legal propositions involved in the two cases. In discussing this question in that case, the court on pag’e 55 used this language:

“Not only does the record upon its face show that this suit is only a collateral attack upon the Illinois decree for divorce, but it also shows that in the very nature of things a direct proceeding for that purpose could not possibly have been brought and maintained, for the simple reason that a judgment in a divorce case is one in rem (Gould v. Crow, 57 Mo. 200), and Alexander Lieber, the plaintiff, in whose favor that judgment was rendered, is dead. He, therefore, could not have been made a party to such a suit, nor could such a suit have been maintained against him, even though it should have been instituted. Not only that, the subject-matter of such a suit is and would necessarily have to be the ‘judgment in rem/ which was rendered in the divorce suit, which in truth and in fact is nothing more or less than the dissolved marital relation, which formally existed between Alexander Lieber and Margaret Lieber. That judgment in rem, or dissolved relationship, would not descend to his heirs, nor would it pass into the hands of his executor or administrator. Consequently there could be no person or thing represented in any such suit after one of the parties thereto has died. This is clearly the reason why counsel did not bring a direct bill in equity to set aside the Illinois decree for divorce.”

The same general principle of law was announced by Judge Lamm in the case of Bishop v. Brittain Investment Co., 229 Mo. 699, in the discussion of the admissibility of the testimony of the surviving party when the other party to the cause of action, the marriage contract, in issue and on trial was dead. The Lieber case was largely based upon the principle of law announced in that case, as will be seen by the following quotation taken from pages 27 and 28 of the Lieber case:

“In the ease at bar, the plaintiff’s right to a homestead in the lands of Alexander Lieber depends just as much upon the existence of the marital relation between her and him, at the date of his death, as did Mrs. Bishop’s right to dower in the lands of the Investment Company ‘hinge on a contract of matrimony and its performance’ with Dr. Bishop. And as was there said by Judge Lamm, ‘that was the issue tried;’ and here, the question tried is, was Margaret Lieber the wife of Alexander Lieber at the time of his death?

“If he was divorced from her at that time, then she was not his wife, and she was no more competent to testify'regarding the divorce proceedings than was Mrs. Bishop qualified to testify regarding her alleged .marriage to Dr. Bishop.'

“That the decree for divorce was granted in the case of Alexander Lieber against Margaret Lieber, there is no question. In fact, plaintiff’s amended pe- - tition, and entire case, proceeds upon the theory that the decree was granted and valid upon its face, and for that reason she seeks to have it set aside and that it was procured by fraud.

“Now concede, for the sake of the argument, that this decree is impeachable in this character of a proceeding, which I deny, nevertheless, it being fair and regular upon its face, it is entitled to full faith and credit until impeached and set aside upon competent testimony. That being unquestionably true, it cannot be legally said that Margaret Lieber was the wife of Alexander Lieber at the time of his death.

“The only difference between the two cases is the fact that the contract of marriage, which was one of the constituent elements of the cause of action in issue and on trial in that case, if entered into, made Dr. Bishop and the plaintiff there husband and wife, and consequently entitled her to dower; while in the case at bar the decree of divorce, it is admitted, destroyed the marital relation which existed between Alexander Lieber and Margaret Lieber, and as an incident thereto destroyed her right to a homestead in his lands, until, at least, the same is set aside and for naught held, which is sought to be done in this case, and that decree, therefore, being one of the necessary constituent elements of plaintiff’s case, is equally in issue and on trial here, as was the marriage contract in the Bishop case, and consequently since Alexander Lieber, the other -party to that cause of action is dead, Margaret Lieber the surviving party thereto, under the authorities cited, is disqualified as a witness to testify in this cause, touching the impeachment of that decree.

“We are, therefore, clearly of the opinion, that the plaintiff was not a competent witness in this case, to testify, as she did, to matters- regarding or tending to impeach the decree of divorce rendered by the circuit court of Mercer county, Illinois, in the case,of Alexander Lieber against Margaret Lieber, the defendant there, and the plaintiff here.”

Prom these observations it must be apparent to every one that it is not .only a legal but a physical im~ joossibility for a court to dissolve the marriag-e contract, the res, after it has been completely and forever severed by the death of one or both of the parties thereto, which according to its express terms was to endure for life only, and upon the authority of the Savior, there is no marriage in Heaven.

Prom this it is seen that while marriag-e, divorce and death may and do have something to do with the acquisition and disposition of real estate, yet not in the sense that it is acquired or disposed of by deeds of conveyance executed by and between the parties thereto, but solely in the sense that the law, in all such cases, of its own operation purely as an incident to the marriage, divorce and death gives and disposes of those classes of property denominated marital rights and inheritances. Neither man nor court has any control whatever over such acquisitions or dispositions of property.

Man and women with the sanction of the law may marry; the courts at the request of either party, for good cause shown, may dissolve the marriage, and death of the one always does so; but neither given the property, but the law, as before stated, as an incident thereto, bestows the property upon those designated by the law, when those conditions arise.

It must therefore be apparent that after the law has thus bestowed the property upon the parties designated purely as an incidental matter, the courts cannot take hold of that incident as a makeshift, and through that assume jurisdiction over the marriage contract and dissolve it when the death of one of the parties had dissolved it long before, and especially should that be true when the dead party is not and cannot in any possible way be represented.

Such a proceeding might and doubtless would, in many cases, prevent man and wife from saying that his or her property should go to the survivor under the law, or to their children.

If the dead lives in the Lord, then such a decree as here asked for would put the deceased to shame, and at the same time cast odium upon his wife and children.

Shame upon such a law — if it be a law.

WALKER, J.

(dissenting). — I do not concur in the application of the Arkansas statute to the contract of marriage reviewed in the majority opinion. [Sec. 5175, Kirby’s Digest.] This statute prescribes that whenever a party shall, from want of understanding, be incapable of consenting to. a marriage, the same shall be void from the time its nullity shall be declared by a couvi of competent jurisdiction. This statute in effect declares a marriage where one of the parties is mentally incapable of consenting thereto valid until set aside by a court, aud thus renders the contract voidable instead of void. Under this classification it can. only be questioned by a direct proceeding between the parties and during the lives of both. [2 Nelson on D. & S., sec. 569; Stuckey v. Nethes, 24 Hun, 461.] The operative force of a law of this character is to declare a marriage, under the condition stated, void in substance but simply voidable as to procedure. In my opinion this court is not called upon to follow such a law, which, if it does not involve an absurdity, at least contains a contradiction.

In addition, it is a fundamental principle that each State has the right to determine the marital status of its own citizens and prescribe the terms and conditions upon which marriages may be annulled or dissolved. [Mitchell v. Mitchell, 117 N. Y. Supp. 671.] While it is not deemed necessary in voicing this dissent to enter into a discussion of the doctrines of lex loci and lex domicilii as applied to marriage contracts, it will suffice to say that the rule which declares that a marriage valid where made is valid everywhere has no application here, and -is only properly applicable as ■ to matters affecting the manner and the mode of the solemnization of a marriage and the preliminaries thereof, while the question as to the matrimonial capacity of the parties, which is the question here involved, is to be determined by the law of the forum or the domiciliary law of the parties at the time the right of action accrued.


author: ROY, C.

text:
    HERMAN DRAKE et al., Appellants, v. MILTON HOSPITAL ASSOCIATION et al.
    Division Two,
    July 17, 1915.
    1. LEGITIMATION: Adulterine Bastard. The statute contemplates the legitimation of adulterine hastards the same as it does other children born out of lawful wedlock whose parents subsequently marry.
    2. -: -: Recognition: Presumption. The marriage, after emancipation, of a man to a woman who while she was a slave gave birth to an illegitimate child, and the subsequent recognition of such child by him as his own, there being evidence that they lived in the same community and none that he did not have opportunity to become the father of such child, although at the time of its birth another woman was his slave wife, raises the presumption that he was the child’s father; and if that presumption is not overcome by evidence showing him to have been impotent or otherwise incapacitated to become a father at and prior to the child’s birth, such-child is to be held legitimate, the same as one born in lawful wedlock.

      3. -: -L-: Presumption: Impotency: Instruction. The presumption that a child born in wedlock is legitimate is not an absolute one, but is rebuttable. Likewise, the presumption that a man who marries the mother of an adulterine bastard and subsequently recognizes such child as his own, was its father, is also rebuttable. And where there is testimony tending to show that at and prior to the child’s birth he was impotent, an instruction declaring that he is presumed to have been the child’s father from the fact of his marriage of the mother and his subsequent recognition of her illegitimate child as his own,. is error, since it ignores and omits any reference to the evidence tending to overcome that presumption.
    4. -: -: -: Evidence of Impotency. Testimony that the putative father of the illegitimate child had mumps before he knew the child’s mother, which he said rendered him impotent through life, and that his scrptum after his death was gone, is evidence tending to establish his impotency.
    Appeal from Cole Circuit Court. — Eon. John M. Williams, Judge.
    Reversed and remanded.

      J. G. Slate, John M. Dawson and Alecc. Z. Patterson for appellants.
    (1) The court erred in finding for respondents because there was no evidence that Archie Drake was the natural father of Ida Garnett, who claims to inherit from him by reason of the law of descent and distribution, but the evidence was to the contrary. Sec. 341, R. S. 1909'; Mooney v. Mooney, 244 Mo. 390 ; Rocking-ham v. Mount Holly, 26 Yt. 653; '5 Cyc. 632, 633, 634. (2) The court erred in finding for respondents because no testimony was offered but what was entirely consistent with the theory that respondent, Ida Gar-nett, was not the child of Archie Drake. The burden of proof was on respondents. 5 Cyc. 628; Pickens’ Estate, 163 Pa. St. 14; 'Mooney v. Mooney, 244 Mo. 390. Respondents’ testimony in support of the claim of paternity was utterly lacking in the essential requirements of clearness, certainty and convincing force. Facts cannot be regarded as proved by evidence merely giving rise to conjecture. Newcomb v. Jones, 37 Mo. App. 475; Warner v. Crandall, 65 111. 195; Wheelan v. Eailroad, 85 Iowa, 167; Wilson v. Cobb, 28 N. J. Eq. 177; O’Connell v. Clark, 78 N. Y. Snpp. 93; Land Co. v. Lumber Co., 35 S. W. (Tenn.) 886; Steamship Co. v. Kelly, 126 Fed. 610. (3.) The court erred in finding for the respondents because the evidence was uncontradicted that Archie Drake was married to his first wife long before the respondent, Ida Garnett, was begotten and born, and that he continued to live and cohabit with said first wife until she died in 1870, and that said respondent, Ida Garnett, was begotten during the time he was living with his first wife, to-wit: begotten in 1860 and born in March, 1861. Sams v. Sams, 85 Ky. 396; Kealoha v. Castle, 210 TJ. S. 149; Hall v. Hall, 26 Ky. L. E. 610; Tiffany, Persons &• Domestic Delations (2 Ed.), p. 235. (4) The court erred in finding for respondents because there was no evidence that Archie Drake and the mother of the respondent, Ida Garnett, were even acquainted at the time respondent was begotten and born. (5) The court erred in giving declaration of law numbered 4, at the instance of respondent's, for the reason that this declaration in effect declares the law to be that no matter who was actually and in fact the father of respondent, Ida Garnett, if Archie Drake afterwards married said respondent’s mother and recognized said respondent as his child, that is, held her out to the world as his child, respondent thereby became, in law, Archie Drake’s child. This declaration ignored the. opening words of Sec. 341, E. S. 1909, to-wit: “If a man, having by a woman a child,” etc. Mooney v. Mooney, 244 Mo. 390. (6) The court erred,in indulging the presumption that Archie Drake’s intermarriage with Julia Smith and subsequent alleged recognition of respondent, Ida Garnett, as his daughter, was either persuasive or conclusive proof that Archie Drake was in fact the father of Ida Garnett. In so doing’ the court disregarded one of the strongest presumptions known to the law and one which the law ever makes; that is, the presumption of innocence, which applies to civil as well as criminal actions. Archie Drake was a married man at the time Ida Gar-nett was conceived and born and in law he must be presumed to be innocent of the • criminal offense of adultery, until the contrary is shown by competent testimony. Klein v. Laudman, 29 Mo. 259; Johnson v. Railroad, 203 Mo. 381; Maier v. Brock, 222 Mo. 74; 16 Cyc. 1081; Childs v. Merrill, 66 Yt. 302.

      Pope & Lohmom and Irwin & Peters for respondents.
    Respondents cite the following authorities in support of their position, from this State and other jurisdictions having statutes similar to ours in regard to legitimating children born befor'e marriage of parents: R. S. 1909, sec. 341; Gates v. Seibert, 157 Mo. 271; Breidenstein v. Bertram, 198 Mo. 347; Nelson v. Jones, 245 Mo, 579; Jackson v. Pbalen, 237 Mo. 142; Martin v. Martin, 250 Mo. 549; Adger v. Ackerman, 115 Fed. 124; Mooney v. Mooney, 244 Mo. 372; Kealoha v. Castle,. 210 U. S. 149; Brewer v. Blougher, 14 Pet. 178; Hawbecker v. Hawbecker, 43 Md. 516; Ives v. MeNicoll, 59 Ohio St. 402; Carroll v. Carroll, 20 Tex. 732; Munson v. Palmer, 8 Allen, 551; Adams v. Adams, 36 Ga. 236; State v. Lavin, 80 Iowa, 556; Stein v. Stein, 106 S. W. 861; Rockingham v. Mount Holly, 26 Vt. 653, 1 L. R. A. (N. S.) 773; Harvey v. Ball, 32 Ind. 98; Bailey v. Boyd, 59 Ind. 292; Binns v. Dazey, 147 Ind. 536; Alston v. Alston, 86 N. W. 55; Brown v. L. of PI., 107 Iowa, 439; Hunter v. Whitworth, 9 Ala. 965 ; Dannilli v. Dannilli, 67 Ky. 51; Colwell’s Succession, 34 La. Ann. 265; Hart v. Ross, 26 La. Ann. 90; Brewer v. Hamor, 83 Me. 251; Adams v. Adam's, 154 Mass. 290; In re Oliver, 184 Pa. St. 306; MeGunnigle v. McKee, 77 Pa. St. 81; Adams Estate, 6 Pa. Co. Ct. 591; In re Mathias, 63 Fed. 523; '5 Cyc. 634-; VanHorn v. VanHorn, 107 Iowa, 247; Miller v. Pennington, 218 111. 220; Scanlon v. Walshe, 81 Md. 118; Eddie v. Eddie, 8 N. D. 376; In re Gird’s Estate, 157 Cal. 534; Blythe v. Ayres, 96 Cal. 532; Allison v. Bryan, 21 Olda. 557. Children horn before the marriage of their parents, who afterwards intermarry, although the father may have a living wife or been laboring under some other disability, are legitimated by the marriage, after the disability was removed, and recognition thereafter. Miller v. Pennington, 218 111. 220; Carroll v. Carroll, 20 Tes. 732; Brewer v. Blougher, 14 Pet. 178; Hawbecker v. Hawbecker, 43 Md. 516; Ives v. McNicoll, 59 Ohio St. 402; Adams v. Adams, 36 Ga. 236; Scanlon v. Walshe, 81 Md. 118; Eddie v. Eddie, 8 N. D. 376. The intermarriage, after the birth of the child, and the husband’s acknowledgment that the child was his, are prima-facie evidence that he was the actual father, and entitles the child to a pension if the father dies and the mother remarries. U. S. v. Skam, 5 Crank C. C. (U. S.) 367. Law's should be liberally construed in favor of legitimacy. State v. Lavin, 80 Iowa, 561; Eockingham v. Mount Holly, 26 Vt. 653; Brewer v. Hamor, 83 Me. 251; Adams v. Adams, 154 Mass. 290.
   ROY, C.

This is an ejectment suit for land in Jefferson City. Defendant had judgment, and plaintiffs have appealed.

Archie Drake died intestate in 1907 seized of the land. The plaintiffs are his collateral kin, residents of Virginia, where Archie was born a slave. Defendant Ida Lee Garnett claims the land as the only child of Archie Drake. The other defendants are in possession as her tenants. Archie Drake was brought by his owner to Jefferson City before the Civil War and lived there the remainder of his life. He had a slave wife several years before the war. Her name was.Betsy, and they lived together until her death about 1870. They had no children. A few months after- Betsy’s death he married Julia Smith, who was then the mother of an illegitimate child about nine years old, known up to that time as Ida Lee Smith, now the defendant Ida Lee Garnett.

One witness, John Barnes, testified for defendants that Archie, before his marriage with Julia, called Ida his daughter. "Witnesses for plaintiffs testified that he denied that he was the father of Ida, and one witness' stated that he said that Ida was the child of her mother’s old- master. There was much gossip to the same effect.

The undisputed evidence shows that after the marriage of Archie and Julia, Ida became a member of their family and remained such until.her marriage' to James H. Garnett in 1888. She was known in the family and elsewhere as Ida Lee Drake. By that name she was enrolled in, and graduated from, Lincoln Institute, and enrolled in Oberlin College. In that name she was baptized, and later given in marriage by Archie Drake at his home, the wedding being described as a “fine lay out.” Archie Drake from the time of his marriage with her mother treated Ida as his child and called her “daug-hter.” One witness stated that he said she was his daughter “by blood.’’ He had no other children. Some of the witnesses for plaintiff stated that he said that he had the mumps when young and that it made him so that he could not become the father of children. One witness stated that he saw him after he was dead apd that his scrotum was gone. The undertaker who had charge of his funeral testified that he saw nothing abnormal in his appearance in that respect. It was stated by some of plaintiffs ’ witnesses that his ordinary appearance and voice-were those of a normal unemasculated man. There was no direct evidence that Archie Drake and Julia were acquainted with, each other at the time of Ida’s birth. The trial was before the court sitting as a jury, and the issues were at law and not in equity:

The court at the instance of the defendants gave the following declaration of law, over the objection of plaintiffs:

“4. The court further declares the law to be that if Ida Drake, now Q-arnett, was the illegitimate child of Julia Smith,, and that the said Julia Smith after-wards intermarried with Archie Drake, and that the said Archie Drake took the said Ida into his home, supported her, educated her, held her out as his .own child, introduced her into society as his child and recognized her as his child, then in that event the law presumes that she was the child of Archie Dr alíe.”

I. Appellants say that as Archie Drake was the husband of Betsy when Julia’s child, Ida, was begotten, his subsequent marriage to Julia and recognition of

as did not render Ida legitiThey say that, nnder such circumstances, Ida was an adulterine bastard and incapable of legitimation under the civil law, the law of Scotland, the Code Napoleon and the common law; and that our statute should not be construed to have an effect not permitted under those laws. They cite Sams v. Sams’ Admr., 85 Ky. 396. That was a case involving the same kind of a statute as ours, and the child was an adulterine bastard as here. It was held that the statute did not contemplate such a case and that the child was not legitimated by the subsequent marriage of her parents and the father’s recognition of her as his child. The court said: “To construe the statute by its letter in this case would not only conflict with the legislative intent, but would encourage the faithless husband to pursue his immoral practices, and invite his concubine to terminate by intrigue, and perhaps crime, the existence of the marital relation. ’ ’

In Hawbecker v. Hawbecker, 43 Md. 516, a married man became tbe father of several children by a woman other than his wife. Subsequently his wife died and he married the mother of the illegitimate children and acknowledged them as his. The statute of that state was in substance the same as ours. In opposition to the claims of legitimacy by those children under that statute, it was urged that such statute was borrowed from the civil law, and that under that law adulterine bastards could not inherit for various reasons of public-policy therein stated. The court in that case, 1. c. 519, answering such objections, said: “But it must be a very clear case of intent to justify a departure from the words of the law. It would be dangerous and unwarrantable for a court to grope for an intent, or to make one from their own ideas of policy and morals, and on that ground, say that a particular case is withdrawn from the operation of the plain and unambiguous language of a statute.”

Ives v. McNicoll, 59 Ohio St. 402, involved the question of the legitimacy of a child of a married woman by a man other than her husband, the mother having been subsequently divorced from her first husband and having married the father of the child. The statute of that state was in effect the same as here. The court said that it was the intention of the statute to abolish the rule of the civil law, the law of Scotland and the Code Napoleon against adulterine bastards and to do justice to the innocent off-spring. It was there said:

“There can be no public policy in this State in conflict with a valid statute of the State. Public policy must always yield to a valid statute. The General Assembly has the power to enact a law legitimating adulterine bastards, and there would be no absurdity in so doing. Neither would such a statute disturb the general law protecting the marriage relation nor the law of crimes and misdemeanors, nor the law as to public morals. Tbe subject of marriage and divorce, and the subject of adultery and fornication, and the subject of public morals are all carefully provided for and protected by separate chapters and sections of our statutes, and if the General Assembly desired to prevent adulterine bastards from becoming legitimated, some provision to that effect would be found in some of the statutes.”

Our attention is called to Kealoha v. Castle, 210 U. S. 149. That case originated in Hawaii. Their statute reads: ‘ ‘ All children born out of wedlock are hereby declared legitimate on the marriage of the parents with each other, and are entitled to the same rights as those born in wedlock.” It was held that, as the court of last resort of Hawaii in a previous case had decided that an adulterine bastard could not be legitimated by that statute, it was proper to follow that decision in a case coming from Hawaii. That case expressly disclaims any ruling as to a case originating elsewhere than in those islands.

In our opinion our statute is so clear and authoritative that no place is left for judicial limitation of its terms. That statute contemplates the legitimation of adulterine bastards the same as others.

II. Appellants say that the court erred in giving the fourth declaration of law for the defendants, which, in effect, says that if Archie Davis, after his marriage with Julia, recognized Ida as his child, then the law presumes that she is his child.

In Adger v. Ackerman, 115 Fed. 124, decided in the Circuit Court of Appeals of the Eighth Circuit, Judge Thayer, in a concurring opinion, said:' “In the present case it is not necessary to adopt the extreme view that recognition of an illegitimate child by a man who has married its mother is conclusive proof of paternity which no evidence can overturn, and hence that the legitimacy of a child bom ont of wedlock, if it is recognized, by force of the statute is placed on a firmer foundation than the legitimacy of a child born in lawful wedlock, and no decisive opinion need he expressed on that point. I think that it is true, however, that by the recognition of a child born out of wedlock, under the circumstances aforesaid, such a child is placed in the same favorable position as one born during wedlock; that it can only be rendered a bastard, after such recognition, by the same kind of proof which is required to overturn the legitimacy of a child born in the course of wedlock; and that it is entitled to the benefit of the same presumptions.” That language was approved by Fox, J., in Breidenstein v. Bertram, 198 Mo. l. c. 347.

After the marriage of Julia and Drake and after his recognition of Ida as his child, she stood in the same position as a child born in lawful wedlock.

Lawson on Presumptive Evidence, page 143, says:

“In Hargrave v. Hargrave, 9 Beav. 562, Lord Lang-dale laid it down that the presumption that a child born of a married woman is legitimate may be-rebutted by showing that the'husband, was: (1) Incompetent; (2) entirely absent, so as to have no intercourse or communication of any kind with the mother; (3) entirely absent at the period during which.the child must in the course of nature have b¿en begotten; (4) only present under circumstances affording clear and satisfactory proof that there was no sexual intercourse. And in answer to the House of Lords the judges laid down the rule thus: Where a child is born in lawful wedlock, the husband not being separated from his wife by a sentence of divorce, sexual intercourse is presumed to have taken place between the husband and wife, until the presumption is encountered by such evidence as proves to the satisfaction of those who are to decide the question that such sexual intercourse did not take place at any time when by such intercourse the husband could, according to the laws of nature, be the .father of the child.”'

While there is no direct evidence in the case that Archie Drake and Julia were acquainted with each other at the time that Ida was begotten, yet they both lived at that time in or near Jefferson City, and there is no evidence, in the cause tending to show that he did not have the opportunity to become the father of Ida. In other words, there is no evidence of non-access. On the'other hand, there is evidence as to Archie Drake’s impotency. The fourth declaration of law above mentioned improperly ignored that evidence. There should have been added to it the following “unless the court finds from the evidence that at the time said Ida was begotten Archie Drake was physically incapable of begetting a child. ’ ’

The presumption that a child born in wedlock is legitimate is not an absolute one, but is rebuttable. It is overcome by proof of impotency on the part of the husband. The failure to submit that issue by the declaration of law above mentioned shows that ,the trial court did not consider the evidence on the question of impotency. We express no opinion on the weight of that evidence, but hold that it is the duty of the court or .jury trying the case to consider that evidence.

The judgment is reversed, and the cause, remanded.

Williams, G., concurs.

PER CURIAM. — The foregoing opinion of- Rot, C., is adopted as the opinion of the court..

All the judges concur.


author: WILLIAMS, C.

text:
    THE STATE ex rel. CHARLES STUEVE v. GEORGE D. REYNOLDS et al., Judges of St. Louis Court of Appeals.
    Division Two,
    July 17, 1915.

    1. MANDAMUS: No Plea to Return. Unless relator pleads to respondent’s return to an alternative writ of mandamus, either by motion for judgment on the pleadings, demurrer, answer, or such other proper plea as will join an issue for determination, especially where the return sets up material facts in conflict with the allegations in the writ, the alternative writ will be discharged and the proceedings dismissed. The statute (Sec. 2547, R. S. 1909) requires relator to “plead to or traverse all or any material facts contained in such return,” and unless there is some appropriate plea no issue is joined or is raised for determination; and such has been the law since the revision of the statutes in 1845 (R. S. 1845, Ch. 112), and by them the common-law practice of bringing proceedings by mandamus to an issue was superseded.
    2. -: -: Neglect to Plead. Where the cause has been pending in the Supreme Court after respondent’s return a sufficient length of time to have enabled relator to plead to said return, and he has not filed any pleading to bring the cause to an issue or attempted to obtain further time in which to plead, the alternative writ will be discharged.
    Mandamus.
    Alternative writ discharged and proceeding dismissed.

      H. W. Johnson, A. H. Drunert and W. G. Hughes for relator.

      Emil Boehrig and T. W. Hukriede for respondents.

      Note. — Decided May 25, 1915. Motion for rehearing overruled July 6, 1915. Motion to transfer to Court in Banc overruled July 17, 1915.

   WILLIAMS, C.

This is an original proceeding by mandamus to compel the judges of the St. Louis Court of Appeals to set aside its order dismissing the appeal in the cause entitled “State of Missouri, Respondent, v. Charles Stueve, Appellant,” and to require them .to reinstate the cause on its docket and to proceed to hear and determine the same.

On account of the conclusions which we have reached in this case, it does not become necessary to set forth the allegations of the pleadings in detail, but a general summary of the facts alleged will be sufficient for the purposesj of the question discussed in the opinion.

In his original petition for the alternative writ, which was afterward incorporated into and made a part of the alternative writ, relator states that at the April term, 1911, of the Warren Circuit Court, he was tried and convicted of a misdemeanor, to-wit, of obstructing a public road; that in due time motions for new trial and in arrest of judgment were filed and overruled, and an appeal was duly granted to the St. Louis Court of Appeals. The appellant was given time to file his bill of exceptions, which time for filing bill of exceptions was from time to time extended, the last extension being to May 1, 1914. That on February 13, 1914, the respondent’s attorney, in said cause filed in the St. Louis Court of Appeals an abstract of the judgment of conviction in said cause, together with a motion to dismiss defendant’s appeal therein, “for want of prosecution or for delay on the part of defendant in preparing and filing his bill of exceptions ’ ’ and perfecting his appeal, which motion to dismiss was, by said Court of Appeals, sustained; that he thereupon filed a motion for a rehearing and made a showing to said court that the delay in perfecting the appeal was through no lack of diligence upon his part; that said motion for a rehearing was overruled.

The petition states further facts which, if true, would show that the delay in perfecting the appeal was ' not due to any negligence or want of diligence upon the part of relator, but was caused by the official stenographer of said circuit court in misplacing or losing his shorthand notes of a part of the testimony; that finally the transcript was completed and on March 20, 1914, the bill of exceptions in said cause was completed, properly approved and signed, and, on April 16, 1914, said bill of exceptions was duly filed with the clerk. of said circuit court and by him duly entered upon the- records of said court, and that relator (appellant in said cause) is now ready to file in said Court of Appeals a full and complete transcript in said cause as required by law. That the action of said Court of Appeals in dismissing said appeal is without warrant or authority of law, and leaves the relator without remedy or redress.

The alterantive writ was issued and served upon. respondents. Later respondents filed a motion to ■ quash the alternative writ, but it appears that nothing further was done with the motion to quash, and it must be considered as an abandoned pleading, since ■ the respondents on the return day filed their return to the alternative writ. The return sets forth in substance the steps leading up to the dismissal by the Court of Appeals of the appeal in the misdemeanor case, and also the overruling of a motion for a rehearing, and states that, upon the hearing, both parties filed affidavits concerning the cause of the delay in perfecting the appeal, and that after due hearing and consideration of the facts therein presented the Court of Appeals dismissed the appeal. Further facts are set forth in the writ which, if true, would show that the appellant in the misdemeanor case '(relator here) did not use diligence in perfecting his appeal, but that the delay was largely due to his own negligence or inactivity in the matter in failing to order from the official stenographer, within a reasonable time after the case was determined in the trial court, a transcript of the evidence.

It thus appears that the facts alleged in the return are in direct conflict with those stated in the alternative writ with reference to the diligence exercised by. the relator in perfecting his appeal in the misdemeanor case. The relator has not pleaded to or traversed the return.

The alternative writ of mandamus in the case was issrred May 13, 1914. On July 6, 1914, respondents filed their return. The case was originally docketed for the October, 1914, term of this court. At that term the case was continued upon stipulation 0f -¿he parties to the January call. The case was then docketed on the January, 1915, call and was, on the day set, submitted upon the briefs of the respective parties without oral argument. Upon examining the pleadings in the case, we have reached the conclusion that there is nothing before us for determination, for the reason that no issue has been joined by the pleadings. Article 9 of Chapter 22, Revised Statutes 1909, prescribes the method of making up the issues in mandamus suits. By section 2547 of said article it is provided: “When any writ of mandamus shall be issued, and return shall be made thereto, the person suing out or prosecuting such writ shall plead to or traverse all .or any of the material facts contained in such return.” The case stands here upon the alternative writ and the return.

Relator should have pleaded to the return by motion for judgment upon the pleadings, demurrer, answer, or such other proper plea as would have joined, or carried forward for joining, an issue for determination. The rule at common law was different. “At common law, and prior to the Statute of Anne, no pleadings were allowed in mandamus beyond' the return, and the court proceeded to summarily hear and dispose of the application, upon the alternative writ and the return, the latter being taken as conclusive. The return not being traversible, the only remedy of the relator, in case it proved false, was by an action on the case for a false return. This remedy, however, he was not at liberty to adopt until judgment had upon the sufficiency of the return.” [High, Extraordinary Remedies (3 Ed.), sec. 457.] The sufficiency of the return was brought up for determination by relator-moving for a concilium. [The King v. Mayor and Aldermen of London, 3 B. & Ad. 255, l. c. 280.] Concilium in the sense here used is defined as an “argument in a cause, or the sitting of the court to hear argument.” [Black’s Law Dictionary.] “A motion for a concilium, or day for the argument of a cause, was formerly moved for upon reading the record in court, but now it is a motion of course. [2 Tidd’s Practice, 737-739.] ” [1 Burrill’s Law Dictionary & Glossary, 337.]

But in order to provide that the proceedings upon writs of mandamus in certain specified cases might be made more speedy and effectual than was possible under the common-law procedure in that behalf Parliament in 1710 pass-ed the Statute of Anne (9 Anne, chap. 20). That statute, authorizing a new procedure in mandamus cases relating to municipal corporations and certain officials, provided in part as follows:

“As often as in any of the cases aforesaid, any writ of mandamus shall issue out of any of the said courts, and a return shall be made thereunto, it shall and may he lawful to and for the person or persons suing or prosecuting such writ of mandamus, to plead to, or traverse all or any of the material facts contained within the said return; to which the person or persons making such return shall reply, take issue, or demur; and such further proceedings, and in such manner shall be had therein, for the determination thereof, as might have been had if the person or persons suing such writ had brought his or their action on the case for a false return; .and if any issue shall he joined on such proceedings, the person or persons suing such writ shall and may try the same in such place as an issue joined in such action on the case should or might have been tried; and in case a verdict shall be found for the person or persons suing such writ, or judgment given for him or them upon a demurrer, or by nil elicit, or for want of a replication or other pleading, he or they shall recover his or their damages and costs in such manner as he or they might have done in such action on the case as aforesaid; such costs and damages to be levied by capias ad satisfaciendum, fieri facias, or elegit; and a peremptory writ of mandamus shall be granted without delay, for him or them for whom judgment shall be given, as might have been, if such return had been adjudged insufficient; and in case judgment shall be given for the person or persons making such return to such writ, he or they shall recover his or their costs of suit to be levied in manner aforesaid.”

In 1825, the General Assembly of Missouri passed an act “to regulate proceedings upon mandamus.” [2 R. S. 1825, p. 522.] Said statute is almost an exact copy of the Statute of 9 Anne except that it extends to all proceedings by mandamus. The above Act of 1825 was for some unknown reason omitted from the revision of the statutes of 1835, but in 1836 the General Assembly again re-enacted the statute in practically the same form as the 1825 act. [See Laws 1836, p. 72.]

In 1845 the General Assembly made a general revision' of the laws of this State and in so doing revised the statute on mandamus into its present form (See Chap. 112, R. S. 1845), which statute as then amended has been carried forward from one revision session to another and is now contained in article 9, chapter 22, Revised Statutes 1909. The change or amendment made in 1845 was slight in phraseology but it was a very important one. The- acts of 1825' and 1836 had followed the Statute of Anne in that they provided that when a return was made “it shall be lawful” for the relator to plead to or traverse the return; while the act of 1815 provided that when a return is made the relator “shall plead to or traverse” the return. Under the Statute of Anne, it was optional with the pleader (relator) as to whether he would plead to or traverse the return, or fail to plead further and fall hack upon his action if any, upon a false return. [The King v. Mayor and Aldermen of London, supra, l. c. 280.] But under the Act of 1815 it was made compulsory upon the relator to-plead to or traverse the return. An interesting historical side light, showing the probable source of the amendment made in 1815 is contained in the following excerpt taken from the “Preface” to the Revised Statutes of Missouri 1815, prepared by William Claude Jones, then Commissioner for the Publication of the Revised Laws:

“At the session of the Legislature of 1812-3 an act was passed appointing Hon. William Scott, Hon. William B. Napton and Henry S. Greyer, Esq., as re-visors of the laws, with powers to revise and digest the whole body of the general laws of the State, and report the same to the next session of the General Assembly. Mr. Geyer declined the office, and the Hon. James W. Morrow was appointed in his place. When the Legislature met in 1811, the revisors reported their revision, apparently prepared with much ability and care. The laws, as reported by them, were referred to a joint committee on revision, and were reported back with but few changes.” [R. S'. 1815, p. vii.]

So it would appear that the Missouri statute as amended or revised by the Act of 1815 (the amendment being made, no doubt, upon the suggestion of the above named distinguished jurists and legal scholars) entirely superseded the common law practice with reference to the procedure in bringing proceedings by mandamus to an issue.

It therefore follows that no issue has been joined by the pleadings in the present case and that there is nothing before us for determination. And since the matter was pending in this court, prior to submission, a sufficient length of time to have enabled the parties, if they had so desired, to bring the cause to an issue, but no further, attempt so to do having been made nor further time in that behalf requested, it follows that the alternative writ heretofore issued in the cause' should be discharged and the proceeding dismissed. It is so ordered.

Boy, G., concurs.

PEE CUEIAM. — The foregoing opinion by Williams, C., is adopted as the opinion of the court.

All the judges concur.