Wadsworth v. Brigham , 125 Or. 428 ( 1927 )

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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] In Banc. This is a suit brought by Mercedes E. Wadsworth, claiming to be the sole heir of John H. Brigham, deceased, for the purpose of setting aside the provisions of a certain will made by the deceased whereby all the defendants except the Security Savings Trust Company are named as beneficiaries. The Security Savings Trust Company is named as trustee to carry out the provisions of said will, the plaintiff not being in any way named therein.

The plaintiff alleges that she is the daughter and sole heir of John R. Brigham, and, not being mentioned in the will, that she is entitled to inherit as against all the beneficiaries in the will, some of whom are nephews and nieces and others of no relation whatever.

The case was tried before Honorable GEORGE TAZWELL, Judge of the Circuit Court of Multnomah County, but upon request of plaintiff he called an advisory jury and submitted to them the following questions:

Question 1: Is the plaintiff the daughter of John R. Brigham, deceased, who is mentioned in the pleadings in the above-entitled proceeding, and did the said John R. Brigham and the mother of plaintiff cohabit in the State of Oregon as husband and wife for over one year, the plaintiff being born as result of said relation? Answer: Yes.

Question 2: Were the parents of the above-named plaintiff ever formally married by means of a marriage ceremony either before or after the birth of plaintiff and while the said parents and each of them was single and capable of entering into a marriage contract? Answer: No.

The court set aside these findings as not supported by the evidence, and entered findings to the effect, first, that John R. Brigham at the time of his death, and always, had been unmarried and that he and Emily E. Liddy, mother of plaintiff herein, did not cohabit for one year or over and that plaintiff is not the issue of any such relation. Second, that the great weight of evidence is contrary to the verdict of the jury to the effect that John R. Brigham and Emily E. Liddy lived together as husband and wife in the State of Oregon for one year and that plaintiff is the result of such cohabitation, and that such verdict should be disregarded, set aside and held for naught. Third, that John R. Brigham and Emily E. Liddy, mother of Mercedes E. Wadsworth, plaintiff, were never formally married by means of a marriage ceremony either before or after the birth of plaintiff, and that plaintiff is not the issue of any marriage relation existing between John R. Brigham and Emily E. Liddy. Thereafter, the court made the following conclusions of law:

First: That the plaintiff is not an heir at law of John R. Brigham, deceased, and is not entitled to any relief whatsoever in this proceeding, and that the petition heretofore filed by her should be dismissed with prejudice.

Second: That the defendants are entitled to their costs and disbursements in this proceeding.

Thereafter a decree was entered conforming to these conclusions of law, from which decree the plaintiff appeals to this court.

REVERSED. The first proposition that confronts us here is the question as to whether the plaintiff is the daughter of John R. Brigham. As to this, we think the testimony very largely preponderates in her favor. Plaintiff testified that she was born October 13, 1879, in Portland, and that from her earliest recollection she lived with her father, the decedent, and mother until 1883 or 1884, when he eloped with another woman; that she was always told by both that they were married in California a year prior to her birth; that later, being informed that Brigham had denied that she was his daughter, she attempted to obtain proof of the marriage, but owing to the marriage records of San Francisco having been destroyed by the great fire and earthquake of 1906, such proof was not obtainable; and that she was named and always called Mercedes Brigham and attended school under that name and never went by any other name until her marriage. There was a slight attempt to impeach her veracity, but the impeachment was confined to the statement of a single witness and he, although a gentleman of high character, seemed to base his testimony upon the result of a personal estimate from some business transaction with the deceased rather than upon a general reputation existing in the community.

The plaintiff had lived in and about The Dalles for several years, and, certainly, long enough for her general reputation for truth to have become well known in the community; and the fact that no other witness was called on this branch of the case by the defendants is significant.

We are disposed to accept her statement as those of any other unimpeached though vitally interested witness who testified to occurrences many of which took place more than forty years before this trial, and, while in view of the interest she has in this proceeding and the time that has elapsed, her statements may have been unconsciously colored, we do not feel at liberty to reject them entirely.

Her testimony, as to the general conduct of the deceased toward her, indicates all the usual affection of a father for his daughter. He called himself "papa," made her presents and conducted himself during her tender years as a father would toward a beloved child. One incident that strongly corroborates her statement in this regard, and which cannot be disputed, is a present of a childish series of leaflets embodying pictures and verses of a "Mother Goose" character upon which is written in his undisputed and undisputable handwriting, "To Sadie Brigham from Papa," the words "to" and "from" being printed and the other words being in Brigham's handwriting. In corroboration of her claim, Mrs. Mary K. Britten of The Dalles testified as follows:

"Q. Where do you reside, Mrs. Britten? Where do you live? A. Your Honor, I am hard of hearing, I wish counsel would come forward.

"Q. I'll speak a little louder; I think that she can hear me. Where do you live, Mrs. Britten? A. In The Dalles, Oregon.

"Q. How long have you lived in the state of Oregon, approximately? A. It will be forty-six years November 4th.

"Q. Were you acquainted with John R. Brigham during his lifetime? A. I was.

"Q. Did you know, or were you acquainted with the plaintiff here, Mrs. Wadsworth? A. I am.

"Q. How long have you known Mrs. Wadsworth, or how large was she when you first saw her? A. Well, she was a very little girl; possibly a year old or more.

"Q. When and where did you first see John R. Brigham? A. In The Dalles, Oregon.

"Q. At what place in The Dalles did you see him? A. The Umatilla House.

"Q. Who was with him when you saw him at the Umatilla House? A. Sadie, or Mrs. Wadsworth, and her mother and Mr. Brigham.

"Q. And how large was Sadie at that time, did you say? About how old would you think she was? A. Oh, I should think about a year or more old; she was just beginning to walk.

"Q. Did you meet John R. Brigham formally at that time? Were you introduced to him? A. I was.

"Q. Now, just tell the jury, Mrs. Britten, what took place at that time, at that meeting? How you met him, and what happened? Who was there, and all about it? A. Well, I just came from the boat, from New York state, and we stopped at the Umatilla House, and my sister was with me, and we went in and sat down. They were expecting the news about Garfield's election, and we all went in there and sat down, and we happened to sit in a seat next to Mrs. Wadsworth's mother, and my sister introduced me to Mrs. Liddy; and she says her name was Liddy at one time, but she said, ``Excuse me,' she said, ``It is Mrs. Brigham.'

"Q. Was John R. Brigham there at that time? A. He was sitting next to her.

"Q. What did he say or do, if anything? A. And my sister asked him, ``Are you married?' and he said, ``we are,' and she said, when my sister introduced me, she said, ``If you please I am not Mrs. Liddy; I am Mrs. Brigham; this is my husband'; and we asked him if he was married, and he said, ``We are'; and he picked up the little girl and held her up, and he said, ``Look at our marriage certificate.'"

This witness further testified that upon two subsequent occasions she visited the Brighams in Portland, once at their home in the Reed Block and once at the St. Charles Hotel, and found there Sadie, this plaintiff, and her mother and Mr. Brigham. She seemed to be a disinterested witness and her testimony is entitled to great weight. The witness further testified, in substance, that she visited Brigham in company with plaintiff a few days before his death. That he evinced a desire to see plaintiff, who was waiting outside, and that when plaintiff, at the call of the witness, entered the room he, Brigham, greeted her affectionately; that they embraced each other with tears and conversed but out of the hearing of witness who withdrew to another part of the room.

Mr. Comini of The Dalles testified that he saw Mr. Brigham in regard to a tombstone for plaintiff's mother and when he left Brigham told him to give his best regards to his daughter, meaning plaintiff.

Thomas A. Doud, a witness for plaintiff, testified that he formerly resided in Binghampton, New York, where Mr. Brigham was born and where his folks lived; and that he came to Portland in 1882 and soon became acquainted with Mr. Brigham, an acquaintance, which seems to have been fairly intimate. Among other matters, he testified as follows:

"Q. Please tell the jury what you said and what he said: A. Well, he made the statement to me one day in the hotel — I can't give the date, — it was in the fall. I come back from the east on the 19th of November, and it was after that, in the fall of 1924; we had a conversation there in regard to some checks that he said had been cashed by the First National Bank, that he never had drawn; and I asked him who he supposed would do anything of that kind, and if he thought they were forged, and he said he was sure they was, from the fact that he hadn't wrote these checks. I asked him what he was going to do, and he didn't say what he intended to do, but he said that he had got to make some disposition of his property, and I asked him what he intended to do, to make a will or let it go that way or not, and he said he was going to make a will, and I asked him who, in this country, that he had, and he said some nieces and brothers, and also a daughter in The Dalles, Oregon.

"Q. And did he say anything about leaving any money to the daughter? A. He did.

"Q. What did he say about that? A. He said he wanted to leave her somthing, and he was going to make arrangements under the will to leave her something.

"Q. What, if anything, did he say about his wife? A. Well, I asked him where the folks was; that is the way he come to tell me about the girl being in The Dalles, he said her mother was dead, and that the girl was living in The Dalles.

"Q. That the girl was what? A. Living in The Dalles.

"Q. Was that all he said? Well I couldn't state; there was other conversation about his property down in Tillamook and about some property here in Portland. He said he had some ranches.

"Q. What was your business in Portland, Mr. Doud? A. At the present time?

"Q. Yes. A. I am in the mining business; I am a mining engineer, and I make my home here in the winter sometimes.

"Q. What did you do when you first came out here? A. The first thing I done in Portland was to build some houses here, — contractor and builder.

"Q. You have lived in Portland all of these years? A. I have known Portland since May, 1882."

Mr. S.K. Watson testified, among other matters, that in 1923 he was in The Dalles and that plaintiff, who was conducting a fruit farm near that place, asked him to take a box of apples to her father, referring to Mr. Brigham, and told him where to find him; that he took the fruit to Mr. Brigham and continued his testimony as follows:

"And he said ``Sit down,' and I sat down and had quite a long talk with him. Of course, he was an old man, and he asked me a good many questions: How long I had been in the country, where I was from, and my business, and wanted to know if I hadn't heard of him, and had quite a long conversation with him; and I delivered the fruit, and he commented on Mrs. Wadsworth, his daughter, sending him fruit at different times, and spoke about his little girl, and spoke about her mother; and went ahead and asked me all about the place up there, and how she was getting along; and I told him that she was out there working and had been working, and I thought was going to make a go of the place, and he said he hoped so. He said it would be a good home for her, and went ahead and told me that he had advanced the mother money, or taken care of a mortgage on that property at The Dalles, so that Mrs. Wadsworth's mother, and he says ``My Daughter' would have a home, and he said, ``It is a nice place up there,' or words to that effect. I don't just remember whether it was a mortgage, or whether it was the initial money that bought this property, but it was money he had advanced to Mrs. Wadsworth's mother; and we talked along awhile, and he wanted to know if I made many trips up to The Dalles, and I said, ``I have to go through The Dalles quite frequently in going to Eastern Oregon,' and he said, ``Sometime when you are going up, I would be pleased to ride up with you and have a talk with you.' I said, ``All right'; and there was a time come along that I called him up to go and told him I would be over in the hotel later in the evening, and I thought I would drive over that afternoon to The Dalles. He said, ``I'll have my grip packed and ready.' I was representing the Oregon Livestock Association, and Mr. Ruby is president, and I had been associated with them for some time, and there was a change come there in the office some way or another, so I didn't go, and I called him up in the evening and told him I wasn't going. He said, ``All right, sometime again, let me know, and I'll go up to see my daughter.' That was about the sum and substance of my conversation with Mr. Brigham.

"Q. Did he, by his conversation, indicate any feeling or regard for the daughter, or for the mother? A. Oh, yes; when he said that he advanced the money to procure the place there, or take care of the loan on the place, it was for the purpose so that Mrs. Wadsworth's mother and her would have a home."

While there is evidence mostly by relatives of declarations on the part of Brigham that Mrs. Wadsworth was not his daughter, we think the evidence largely preponderates in favor of plaintiff on this branch of the case, and we are prepared to find and do find that she is the daughter of John R. Brigham and Mrs. Emily Liddy-Brigham as she sometimes called herself. But the fact that she was Brigham's daughter, and the fact that she was his daughter by reason of intercourse with Emily E. Liddy, does not establish plaintiff's right to inherit in this case. Her right, if she has any, depends upon the construction of Chapter 269, Laws of 1925, which chapter, including the title, is as follows:

"An Act to legitimatize certain marriages and children the issue thereof.

"Be it Enacted by the People of the State of Oregon:

"Section 1. In case a man and a woman, not otherwise married heretofore, shall have cohabited in the state of Oregon as husband and wife, for over one year, and children shall be living as a result of said relation, said cohabitation, if children are living, is hereby declared to constitute a valid marriage and the children born after the beginning of said cohabitation are hereby declared to be the legitimate offspring of said marriage."

The whole case hinges upon the construction of this chapter. It has been treated to some extent by counsel for the respondents as simply re-enacting the doctrine of common-law marriage, but it differs from it in many particulars. To constitute a common-law marriage there must be, first, an agreement between the parties that they become man and wife and that they hold themselves out to the world as such, and second, there must be cohabitation subsequent to the agreement: Huard v. McTeigh, 113 Or. 279 (232 P. 658, 39 A.L.R. 528), and cases therein cited. The statute of 1925 requires all this, as will be seen, and something more. In a common-law marriage the birth of issue is not required; while in the act of 1925, supra, the birth of issue and its living existence at the death of the supposed parent must concur before there can be any inheritance, and the parties must have cohabited together as man and wife for at least a year previous to the birth of such issue. So, the statute cannot be said to be a mere restoration of the practice of common-law marriage which had reference to the status of the parties to the supposed contract rather than to its result upon the issue; while, on the contrary, the statute under consideration seems to make the effect of the supposed relation between the parties to look rather to the welfare of the children born of such relation than to the interest of the contracting parties. This statute is a radical departure from the common-law idea, as a child born out of wedlock was regarded with a cruelty which would not be a credit to modern jurisprudence. Such a child was designated as nulliusfilius or nobody's child; was incapable of inheritance, and the sins of the parents, instead of being visited upon them, were visited upon the unfortunate issue of their breach of the ordinary covenants of marriage. We take it that this statute was enacted chiefly for the protection of such unfortunate children from the consequences of the sins of their parents rather than for the protection of the parents themselves from the consequences of their own misdoings. It has been well settled in this state in the case of Huard v.McTeigh, supra, that common-law marriages cannot exist in this state and we take it that it was not the intent of this statute to restore common-law marriage to the condition of legitimacy, but rather to protect the issue of irregular and illegitimate cohabitation from the consequences which would otherwise accompany it. The requirement that the parties should have lived together and cohabited as man and wife has no real significance as affecting the legitimacy of their relation. In fact, the old indictments for lewd cohabitation usually charged that the parties, not being married to each other, openly and notoriously cohabited together as man and wife, which simply signifies that they lived in each other's company not casually or infrequently, but commonly and frequently as man and wife and had sexual relations together; and this, we think, is shown by the testimony in this case.

We dismiss from consideration the theory of the plaintiff that there was a ceremonial marriage in California. It is altogether possible and indeed very probable that to excuse their apparent relations to their child, they may have told her that they had been married in California, which their subsequent conduct indicates was strongly the reverse. We are unable to accept that theory and the jury clearly and plainly rejected it. The testimony heretofore quoted, as well as other testimony in the case, we think, preponderates in favor of the theory that they were living together by agreement as husband and wife and this continued until the decedent, who appears to have been rather loose in his sexual relations, became enamored of another woman and left plaintiff and eloped with his second sweetheart, which conduct she requited by inflicting upon him a severe thrashing upon his return to Portland. The fact that succeeding this episode plaintiff's mother brought an action for seduction against Brigham can have no legal effect upon plaintiff's status in this proceeding. Finding herself deserted, it was natural for her to seek the assistance of an attorney who would probably advise her that common-law marriages did not exist at that time and that her relations with Brigham were in the eyes of the law not only illegal but perhaps criminal, and that her only hope for obtaining redress lay in an action for seduction. In fact, until the passing of the statute of 1925, supra, there was no redress for mother or child. Under these circumstances she married another man, and considering the fact, that Brigham later and in a repentant mood was willing to dole out a little money now and then to assist her and her child, furnished to her an ample reason for not wishing to attempt to compel him to do more, and to be willing to maintain silence as to her past relations with him. The mother of plaintiff died without hope for that redress which this statute has given the child.

The evidence indicates that something over a year prior to the birth of plaintiff Mrs. Liddy's husband died and that thereafter she entered into sexual relations with the deceased; that she either rented from him or he provided a house which was used by her as an assignation house and frequented by him; that she returned to him of nights, slept with him, bringing him the wages from the house over which she presided, and that the house was conducted in pursuance of a common purpose by both of them. Outside of this, there is not a syllable of testimony of her having had illicit relations with any other person than the deceased, and, while she was engaged in an immoral business, she was at least physically true to her relations to him until he became enamored of another woman. How much influence he may have exerted toward leading her to take up the immoral business and by which he at least to some extent profited does not appear, but that she was a widow and presumably not in a condition to enter into such business without assistance seems very probable.

A point is raised and very ably argued by counsel for respondents as to whether, conceding for the purposes of argument that plaintiff has proven herself the legitimatized child of decedent by virtue of the act of 1925, supra, she does not fall within the terms of the following clause of the will:

"In the event that any person shall contest this will, or in the event that any person claiming to be a legal heir of mine shall legally establish such claim, I give and bequeath unto him or her the sum of $5.00 in cash, and revoke any other devise or bequest heretofore made to him or her, in the event any such has been made."

It is argued that under this clause the plaintiff in any event has been "otherwise provided for" within the meaning of the act of Section 10101, Or. L. We are of the opinion that as applied to this case or as to any case where the prosecution of the suit is in good faith, such a provision is void as against public policy. If, as we here hold, the plaintiff has a legitimate claim to the whole or any part of the estate of decedent, it would seem a mockery to say that in case she should establish such claim she should be cut off with what amounts to a mere nominal sum, and that after spending perhaps hundreds of dollars to establish the fact that she is the legitimate daughter of decedent, she must be content with the unsubstantial sum of $5. This question has been thoroughly considered in Roots v. Knox, 107 Or. 96 (212 P. 469, 213 P. 1013), in a carefully written opinion by Mr. Justice BROWN, in which it is held, among other matters, that the intention of the testator to omit a child from the benefit of its inheritance must be determined from the will itself. This branch of the subject will be considered at length, but here attention is called to his quotation from Boman v. Boman, 49 Fed. 329, as follows:

"The fact that the children are not named or alluded to in such a manner as to affirmatively show that they were in the testator's mind will furnish conclusive evidence that they were forgotten." Citing Wetherall v. Harris, 51 Mo. 68; Gerrish v. Gerrish, 8 Or. 351 (34 Am. Rep. 585).

The opinion of Mr. Justice BROWN goes thoroughly into the subject and is conclusive as to the point that the intent to disinherit a child of the testator must be deduced from the will itself and not from extrinsic evidence.

From the same case Mr. Justice BROWN quotes as follows:

"The terms of the will, in order to show the intent of a testator to remember his children, or to make provision for them, should, under the statute, be clear, specific, definite and certain. The presumptions of the law are all in favor of the children. These presumptions, in order to disinherit them, or to cut them off with a shilling or other nominal sum, can only be overcome by the use of words plainly indicating that the testator had his children in mind at the time he made his will. This must appear, either by express mention, or by necessary implication from the face of the will itself."

The words of the will must show that the testator named or "provided for" the children and must be certain. It is not a matter of guesswork or presumption.

In Thomas v. Black, 113 Mo. 66, 69 (20 S.W. 657), the court said:

"It must appear on the face of the will that the testator remembered them, and, where they are neither expressly named nor alluded to as to show affirmatively that they were in the testator's mind, such presumption becomes conclusive."

In McCoy v. Bradbury, 290 Mo. 650, 659 (235 S.W. 1047,1050), the court in speaking of a statute containing the identical words of the Oregon statute, namely, the words, "provided for," said:

"A gift by implication will not be inferred from mere silence, or from extrinsic facts; it must be founded on expressions in the will itself. A testamentary intention not found in the will cannot be incorporated therein by extrinsic evidence and an implication then based on that."

And again, in Pounds v. Dale, 48 Mo. 270, the court said:

"In considering the will under consideration, the only question to be considered is whether there is anything in the will that rebuts the presumption that Mrs. Pound was forgotten, which presumption arises from the fact that she was not named or ``provided for' in the will."

In Roots v. Knox, 107 Or. 96 (212 P. 469, 213 P. 1013), it is stated at page 105, that the Washington statute is identical with the Oregon statute. In the case of Bower v.Bower, 5 Wash. 225 (31 P. 598), the will provided that all of the property of the testator was devised "to his wife and her heirs forever." It was claimed that the mention of heirs "provided for" the children, but the Supreme Court of Washington held otherwise. The language of the court, which has been approved in the foregoing opinion of Mr. Justice BROWN, is as follows:

"The positive provisions of our statutes are that the children must be named or ``provided for' in the will. What is meant by the term, ``provided for' as so used? In our opinion it refers to some beneficial legal provision, and we are unable to agree with the contention of the respondent that such children can be said to have been ``provided for' by an absolute devise to another, even although the testator thought that the interest of the children would better be subserved by such devise than by one directly to them. The words ``provided for' as used in said section must be held to have a more definite meaning than that contended for by respondent, and we think that no will can be sustained upon the ground that provision has been made for the children, when the only attempt to provide for them has been by an absolute devise to a person other than said children. In the case at bar, then, the children are neither named nor provided for in the will, and under the express terms of our statute we think it must be held ineffectual as to them."

In re Barker's Estate, 5 Wash. 390 (31 P. 976), in considering the same statute, the same result was arrived at. The will in that case provided that the testator gave all her property "to her well beloved husband, to the exclusion of everyone else who may or might be entitled to the same, and to him and his heirs and assigns forever." It was claimed in this case that the expression "to the exclusion of everyone else who may or might be entitled to the same" named the children and excluded them. The Supreme Court of Washington, following Bower v. Bower, supra, refused to follow this line of reasoning, and said:

"There must be some substantial provision for the children of which they can legally avail themselves, or else there must be an actual naming of such children in the will, or the same will be ineffectual as against such children."

In Purdy v. Davis, 13 Wash. 164 (42 P. 520), where the doctrines of Bower v. Bower and In re Barker's Estate,supra, were followed, the children were expressly named and "provided for" by way of a contingency, or a contingent remainder, but the Supreme Court held that that was not sufficient. The words of the will are as follows:

"Gift to Percival A. Purdy, and ``if the said Percival A. Purdy (appellant) should marry again after my demise all my property, both real and personal is to belong to any one of my children that may be born to me before my demise.'"

At the time of the execution of this will a child was ten days old and thereafter the testatrix died.

The Supreme Court of Washington, regarding this contingent provision for the children, quoting with approval from the case of In re Barker's Estate, supra, said:

"Under our statute there must be some substantial provision for the children of which they can legally avail themselves or else there must be an actual naming of such children in the will or the same will be ineffectual as against such children."

The clause of the Brigham will, which it is claimed names the children, reads as follows:

"In the event that any person shall contest this will, or in the event that any person claiming to be a legal heir of mine shall legally establish such claim, I give and bequeath unto him or her the sum of five dollars in cash, and revoke any other devise or bequest heretofore made to him or her, in the event any such has been made."

It is to be noted that the plaintiff is not named in this paragraph. She is not included in the word "heirs." See Neal v.Davis, 53 Or. 423, 430 (90 P. 69, 101 P. 212), where it was expressly held that the word "heirs" did not name or "provide for" the children involved in that case. The Supreme Court of Oregon said:

"The term ``heirs at law,' however, in its general definition includes many others (besides children). It is not limited to children. It may be used, and is often used, in cases where there are no children. It includes parents, brothers, sisters, etc. Who can tell by reading this will what particular heirs were in the mind of the testator at the time he signed the will? Does it clearly appear that it was his intention to provide for the children? Is it manifest upon the face of the will that his children were not overlooked or forgotten? Certainly not. The test there used may be employed in this case, and the same answer must necessarily be returned to the inquiry."

It follows that the word "heirs" in the third paragraph of the will does not affect the rights of the plaintiff herein. Next, the words "in the event that any person shall contest this will" may include the entire world, and does not name the plaintiff either expressly, or by implication, or show that the testator had her in mind. Reading the whole will, which must be considered together, we find that John R. Brigham recites in the very first sentence of the will that he is an unmarried man. Now, if he was an unmarried man, obviously, he did not have any children in mind, and the very statement that he said he was unmarried shows that he did not have any children in mind, and he probably regarded the plaintiff's status as foreclosed by her mother's subsequent marriage without a divorce. Next, if she is not named in this paragraph, is she "provided for" in this paragraph? It is hard to see how she could be "provided for" in the said paragraph if she is not named therein. While a testator has a right to disinherit his children, or expressly give them a nominal sum, when he fails to do that and does not expressly disinherit the children or expressly give them a nominal sum, in order to exclude the children, under these circumstances, from inheriting under the statute, they must be actually and substantially "provided for."

Paragraph 3 does not "provide for" the plaintiff herein. In fact, it has no provision for her at all. In order for her to take under this paragraph, assuming that she came within the purview thereof, she must perform a condition precedent before she is entitled to the sum of $5. She must come to court and incur the tremendous expense of proving that she is the daughter of John R. Brigham, and after she has expended several hundred dollars to establish that proposition, then the provision, that is made for her in the will, is that she shall receive $5, assuming that she is named therein.

Now, the words "provided for" never had any such meaning as the authorities show. We again refer to the case of Purdy v.Davis, supra, where the doctrine of Bower v. Bower, followed in Oregon, is recognized, and in which the rule is stated as follows:

"Under our statute there must be some substantial provision for the children of which they can legally avail themselves or else there must be an actual naming of such children in the will or the same will be ineffectual as against such children." ReBarker's Estate, 5 Wash. 390 (31 P. 976).

In Rowe v. Rowe, 120 Iowa, 17 (94 N.W. 258), under the same statute as ours, the testator devised all his property to his wife with full management and control for her use, comfort and support as long as she was alive, and at her death the remainder to their children. It was held that the widow took a life estate and that the disposition of the remainder did not constitute a substantial support for the children. The language of the opinion is very appropriate, and reads as follows:

"Appellant's counsel, admitting the rules thus far announced, contend that they do not apply when there has been a recognition of the child, and substantial provision made for it in the will. * * The widow has but a life estate under the will of her former husband, with limited power of disposition for her use, comfort, and support so long as she shall live. Under this power she might sell the entire property during her life for support, and thus deprive the child of any right to or interest therein. Indeed, all the child is given is a remainder after a life estate, and this remainder is subject to disposition under the power given in the will. Is this a substantial provision for the child? We think not."

In Meyers v. Watson, 234 Mo. 286 (136 S.W. 236), there was a gift of $10 to James Carey "my son-in-law," whose wife, the daughter of the testator, was dead at the time. This was not a provision for the grandchildren, the court saying:

"We affirm the judgment of the court below. The plaintiffs are neither named, nor provided for in the will. * * The failure to name these children of the testator's deceased daughter raises the presumption that they were unintentionally omitted. * * Had the testator given to the son-in-law a fair proportion of the estate, it might be held that this provision was intended for the grandchildren, and that, consequently they were in the testator's mind, and this because it would not be likely that the testator intended to benefit the son-in-law alone. * * The plaintiffs were not mentioned in the will. We find nothing in the instrument to rebut the presumption that they were unintentionally omitted."

Grace v. Hildebrant, 110 Okla. 181 (237 P. 98), is a case almost on all-fours with the case at bar. The fourth paragraph in the will reads as follows:

"If there is any person who would be entitled to share in my estate under the law then to each and every person I give and bequeath the sum of one dollar."

The Supreme Court of Oklahoma said:

"If it could be said that said fourth paragraph refers to a class including defendant, there is no substantial devise to that class or to the defendant by the nominal bequest of one dollar. As a matter of law, said will was inoperative as to defendant. * * Under said statute and similar statutes the testator must either name the children or its legal representative or make some provision for the pretermitted person."

There is in the instant case no gift made direct. The $5 is upon condition, and unless that condition precedent is met by a contest of the will, the plaintiff is not provided for. No such construction of these statutes has ever been made in any court. The only way that the testator could defeat the rights of the plaintiff would be expressly to name her in a will or expressly to disinherit her. In the absence of doing these things, unless she is substantially "provided for" in a will, she takes under the statute. Giving her $5, if she should succeed in proving her legitimacy, is so incongruous that no court could reasonably hold that she was "provided for" within the meaning of the statute by such a provision. It is a case where she must die to win. Furthermore, this provision being in terrorem, it is void.

The latest case found on this subject is In re Keenan,188 Wis. 163 (205 N.W. 1001, 42 A.L.R. 836). The headnote reflects the substance of the opinion and is as follows:

"It is contrary to public policy to require a litigant to forfeit a substantial sum in case he is not successful in the prosecution in court of a bona fide claim or right, such as the contesting of the probate of a will, where the constitution provides that every person is entitled to a certain remedy in the law for all wrongs which he may receive, and should obtain justice freely and without being compelled to purchase it, completely and without denial, conformably to the laws."

Our Constitution contains substantially the same provision as the one alluded to above. In the present case, the testator has gone further and provides not only that there shall be a forfeiture in case of failure to establish the claim, but also in case that such claim is actually established.

In several states, under different statutes from ours, the holding has been as contended for by the respondents. These cases follow the case of Cooke v. Turner, 15 Mees. W. 727, and other English cases follow this, but in later English cases the rule has been otherwise.

In Powell v. Morgan, 2 Vern. 90, the court said:

"There was probalis causa litigandi, and it was not a forfeiture of the legacy."

In Morris v. Borroughs, 1 Atk. 404, it is said:

"There was a provision made by the will that any legatee controverting the disposition the testator had thereby made of his estate, should forfeit his legacy; this was held clearly and to be in terrorem only, and that no such forfeiture could be incurred by contesting any disputable matter in a court of justice."

In Loyd v. Spillett, 3 P. Wms. 344, it was held that legatees contesting the validity of the will were not to be deprived of their legacies because of such contest. The same rule was held in Smithsonian Inst. v. Meech, 169 U.S. 413 (42 L. Ed. 793, 18 Sup. Ct. Rep. 396, see, also, Rose's U.S. Notes), and the case of Loyd v. Spillett, supra, was approved.

The case of In re Keenan, supra, is reprinted in 42 A.L.R. 836, and contains an exhaustive note on this subject in which the conclusion is reached that such a provision as that above referred to is void as to a party having claims in good faith, and we so hold.

Taking the whole testimony together, we are of the opinion that these parties lived together and treated each other as husband and wife for at least a year before and several years after the plaintiff in this suit was born, but John R. Brigham having to a great extent lost his affection for plaintiff's mother, saw fit to break off the connection and elope with another woman. Later, having become rich, or at least comparatively rich, he sought to be respectable by denying these relations and denying the daughter he had begotten and bred.

A number of citizens were called upon and testified that they had esteemed him a bachelor, and they were no doubt correct as the parties engaged in the business being conducted in the house of deceased were not proclaiming their relations to the better class in the community and no doubt a good many citizens of Portland could have been called who would have testified that they had known John R. Brigham in a business way, and to some extent in a social way, and that they had always supposed him to be a bachelor. This is mere negative testimony and entitled to small weight.

The fact that Mrs. Liddy-Brigham, after deceased deserted her for another woman, married, and on the death of that husband married still another, offers a very plausible argument for defendant, but it is easily explained. In view of the fact that there had been no formal marriage ceremony, she probably considered that it was as easy to exercise the same right to get rid of a husband, without legal proceedings, as to obtain one, without going through the ordinary formalities, and therefore treated the desertion as sort of a common-law divorce. At any rate, we hear of no imputation of her ever associating with other men in a sexual way excepting by the sanction of a marriage ceremony. It is to be remembered that these people do not seem to have been schooled in the ordinary precepts of morality, and the same standards, which would apply to an educated and refined woman, cannot well be held to apply to this woman on whom the conventional relations of society would naturally sit very lightly.

We attach great weight to the verdict of the jury in this case. It is true it is in its nature perhaps only advisory and not conclusive, but it is also treated with great consideration by the courts. As said in DeLashmutt Oatman v. Everson, 7 Or. 212, and Swegle v. Wells, 7 Or. 222, such a verdict should not be set aside where there is substantial evidence to support it.

We do not question the learned judge's capacity to pass upon the law, or the capacity of any judge to pass upon the law, but usually in cases of this kind the average intelligent citizen is as capable of passing upon the facts as the average intelligent judge, and ten jurymen called upon to determine the pure question of fact have found such facts as entitled plaintiff in this case to a decree in her favor. Taking the whole testimony into consideration, and further taking into consideration the fact that ten good citizens have found the facts in favor of plaintiff, we are of the opinion that this case should be reversed and plaintiff granted the relief prayed for in her petition, and it is so ordered. REVERSED AND DECREE ENTERED.