Cox v. Cox

Gilbert Cox departed this life in Osage county, Okla., August 30, 1920. S.S. Mathis, as administrator, petitioned the county court of said county to determine the heirs of the said decedent. Whereupon one Catherine, nee Cole, sometimes called Fletcher, the name of her stepfather, filed her petition in the county court, alleging that the sole heirs of the said Gilbert Cox were his daughter, Dorothy Cox, designated in this proceeding as defendant in error a minor about 8 years of age, and herself, Catherine Cox or Catherine Morrison, the widow of the said Gilbert Cox, and that they were entitled to succeed to all of his property, share and share alike.

On trial in the county court, the issues joined as to right of the said Catherine Morrison to participate in the property of the decedent, same was denied by the county court. An appeal was taken to the district court of Osage county, where, on hearing before the district judge without a jury, the finding of the district court was against the petitioner, Catherine Morrison, excluding her from any right to participate in the estate of the said Gilbert Cox by reason of having been his wife, and she appeals to this court to reverse said judgment.

The assignments of error are in general language, but the question argued by counsel is. Was Catherine Morrison the legal wife of Gilbert Cox at the time of his death, and entitled, as such, to an interest in his property? For convenience, the petitioner, Catherine Morrison, will be referred to as the plaintiff, and the daughter, Dorothy Cox, as defendant.

There is no dispute between the parties that the decedent, Gilbert Cox, was on July 11, 1918, in statutory form, married to Catherine Cole, now Catherine Morrison, and that they lived and cohabitated together as husband and wife for approximately two months thereafter, at which time the said Catherine left Gilbert Cox, and did not live with him any more, and was living separate and apart from him at the date of his death. It is not disputed that on May 28, 1920, a marriage license was secured from the proper officer in Tulsa county, Okla., under which the said Catherine Morrison, under the name of Catherine Fletcher, and one Kelsie Morrison entered into a pretended marriage contract in due form of law. That she and Kelsie Morrison, after said ceremony, went to Hominy, in Osage county, and that they there lived together as husband and wife. The evidence developed that after Catherine separated from Gilbert Cox, she had stayed for a short time in Oklahoma City, and a short time in Tulsa, but that the residences of herself and Gilbert Cox were at all times in Osage county. The evidence and records of the proper officers were introduced from Osage. Tulsa, and Oklahoma counties, showing that no divorce was ever granted in either of said counties, but disclosing that Catherine had filed a suit for divorce against Gilbert Cox in Osage county on March 17, 1919, but that no decree was ever entered thereon, and said suit was dismissed April 4, 1920.

For reversal of the district court of Osage county, denying the plaintiff the rights prayed in her petition to take one-half of the property of the decedent as his wife, under and by reason of the statute on succession, the plaintiff says that there was no divorce ever granted either herself or Gilbert Cox and that at the time of his death she was, as a matter of law, his wife, and entitled to her share of his estate. The defendant, however, contends in part that the plaintiff has not shown by that degree of certainty, facts necessary to overcome the presumption that a divorce had been granted, and that the holding and ruling of the district court on this proposition should be sustained.

As to this, we cannot agree with the contention of the defendant. While, where a prior marriage, if not dissolved, would invalidate a second marriage duly entered into, the law requires the person assailing its legality to assume the burden and establish that no divorce was ever granted. The evidence in this case shows that these parties were citizens of the Osage Tribe of Indians; that their home at all times was in Osage county; that while Catherine had been in Oklahoma and Tulsa counties at intervals, the records disclose that no divorce was ever granted her in either of said counties, and no divorce was granted her husband, Gilbert Cox.

In the case of Copeland v. Copeland, 73 Oklahoma,175 P. 764, among other things, this court said:

"They relied principally, if not wholly, upon the presumption in favor of the validity of the second marriage. Mr. Freeman, in his notes to the case of Pittinger v. Pittinger, 89 Am. St. Rep. 200, in regard to the evidence sufficient to overcome the presumption of divorce, lays down the rule as follows: If it is conceded that a person attacking a marriage, on the ground that a former spouse of one of the parties is living, must show that the first marriage has not been dissolved, still he is not required to make plenary proof of such negative averment. It is enough that he introduces such evidence as, in the absence of all counter evidence, affords reasonable ground for presuming the allegation true. When this is done the onus probandi is thrown on his adversary.' (Schmisseur v. Beatrie, 147 Ill. 210, 35 N.E. 525; 1 Greenleaf on Evidence, 78.)"

We think that the plaintiff sustained the burden, and the presumption of the validity of the second marriage was overcome, and that the bonds of matrimony entered into between plaintiff and Gilbert Cox on the 11th day of July, 1918, were still in full force and effect at the date of his death, August 30, 1920.

The defendant next contends that even if there had been no divorce, the conduct of the said Catherine should be held to estop her from asserting any interest in the property of the said Gilbert Cox, it appearing that she had deserted him, and had lived in a bigamous marriage with Kelsie Morrison, and was so living at the time of the death of the said Gilbert Cox. Sections 8417 and 8418, Rev. Laws, Okla. 1910, provide:

"Sec. 8417. The property, both real and personal, of one who dies without disposing of it by will, passes to the heirs of the intestate, subject to the control of the county court, and to the possession of any administrator appointed by that court for the purpose of administration.

"Sec. 8418. When any person having title to any estate not otherwise limited by marriage contract, dies without disposing of the estate by will, it descends and must he distributed in the following manner:

"First. If the decedent leave a surviving husband or wife, and only one child, or the lawful issue of one child, in equal shares to the surviving husband, or wife and child, or issue of such child."

And the plaintiff contends that, since there is no exception provided in said statutes, and no condition under which the wife of the decedent is not permitted to participate on the grounds of her adultery, bigamy, or any other criminal act on her part, she cannot be excluded or estopped by reason of her relation with Kelsie Morrison. With this contention we feel constrained to agree. While the subject may be one which the legislative branch of the government, which alone has the power to determine the rules of descent of property, might properly give attention, to the end that greater equity or justice might be done in an extreme case as here presented, the court has no power to alter the law of descent as it is written by the Legislature. The general rule which seems to have been applied by the courts in cases of this sort is fairly accurately set forth in 14 Cyc., at page 83:

"In the absence of statutory provision to the contrary, the fact that a wife had abandoned or deserted her husband, or even the fact that she a abandoned him and lived in adultery, does not bar her rights as surviving widow in his estate, except under an early English statute as to dower. And the same is true of a surviving husband's rights in his deceased wife's estate. In some states, however, statutes declare a forfeiture of a surviving wife's rights in her husband's estate where she has left him and been living in adultery; and there are statutes forfeiting a husband's rights in his deceased wife's property, because of his desertion of her, or his willful neglect or refusal to support her," etc.

And also 18 C. J., page 857:

"In the absence of statutory provision to the contrary, the fact that a wife had abandoned or deserted her husband, or even the fact that she abandoned him and lived in adultery, does not bar her rights of inheritance in his estate, and the same is true of a surviving husband's rights in his deceased wife's estate. In some states, however, statutes declare a forfeiture of a surviving wife's rights in her husband's estate where she has left him and been living in adultery, or has left him without justification; and there are statutes forfeiting a husband's rights in his deceased wife's property, because of his desertion of her, or his willful neglect or refusal to support her, etc., but of course statutes of this nature apply to such cases, and such cases only, as come within their terms. Under the California Code, a widow is entitled to the whole of her deceased husband's estate only when she is a member of his family at his death, so as to be entitled to demand support of him."

In an early Alabama case, Turner et al. v. Cole, 24 Ala. 364, the reasoning of which has been followed by many courts, in which, under the circumstances here found, it was sought to invoke the common-law rule which, on desertion by the wife of the husband, coupled with her living in adultery with another man, deprives her of the right to claim dower, that court said:

"In this view of the case, it becomes entirely immaterial whether adultery in this state operates a forfeiture of dower or not, as the demand set up by the bill is not one of dower, which is a common-law right, but a demand as heir (a forced heir, if you will, of the deceased), which is a right purely statutory; and as the statute creating this right has not thought proper to make adultery a forfeiture of the right, we have no power to legislate ourselves upon the subject, and to create a disability where the statute is silent upon the subject. This view of the case is decisive, as to the complainant's right to recover on the case made by the record."

In the case of Holloway v. McCormick, 41 Okla. 1,136 P. 1111, and de Graffenreid v. Iowa Land Trust Co.,20 Okla. 687, 95 P. 640, this court held that, in the absence of a statute, one spouse could not be precluded from inheriting from the other by reason that the decedent was murdered by the surviving spouse.

In the case of Nolan v. Doss (Ala.) 31 So. 969, it is said:

"Under Code, section 1462, providing that if there are no children, the widow of the decedent is entitled to all his personal estate, such estate must be decreed to her, though she had abandoned her husband, and was living with another man, holding herself out as his wife."

However reluctant this court may feel that these rules of the law meet the situation here presented on principles that best serve public policy, and right and justice, we have and are left no alternative except to follow the rules of descent or succession as prescribed by the legislative branch of the government. Since the bonds of matrimony duly entered into between the decedent and the plaintiff were never dissolved, the plaintiff at the time of the death of Gilbert Cox was as a matter of law his wife, and entitled under the statute to participate in his properties as provided therein.

It follows that the judgment of the district court must be reversed, with instruction to enter a judgment vacating the judgment of the county court, and directing said court to enter a decree not inconsistent herewith.

JOHNSON, C. J., and McNEILL, NICHOLSON, MASON, COCHRAN, and KENNAMER, JJ., concur. BRANSON and HARRISON, JJ., dissent.