Opinion
December 1, 1949 —
December 30, 1949.
APPEAL from a judgment of the county court of Pierce county: JAY H. GRIMM, Judge. Affirmed.
Kenneth L. Swanson of Ellsworth, attorney, and C. H. Bentley of Red Wing, Minnesota, of counsel, for the appellant.
R. Wilbur Brookshaw of Ellsworth, and Milton I. Holst of Red Wing, Minnesota, for the respondents.
A. D. Van Schaick died, intestate, on November 28, 1947. On March 2, 1948, Elizabeth Ann Van Schaick petitioned the county court of Pierce county for letters of administration of the estate of A. D. Van Schaick, deceased, as his widow. Objections were made by John Van Schaick, brother of decedent, and Alice Hart, Kathryn Edwards, and Irene Edwards, nieces of decedent, that Elizabeth Ann Van Schaick was not the widow of decedent and was not entitled to letters of administration of his estate. This is an appeal from a judgment, dated April 19, 1949, adjudging that petitioner, Elizabeth Ann Van Schaick, is not the surviving widow or any relation of A. D. Van Schaick and not entitled to file a petition for the probate of the estate of said A. D. Van Schaick, and dismissing said petition for administration.
In 1899, the petitioner-appellant, then Lizzie Partlow, also known as Elizabeth Partlow, was formally married to Johnson Clinger in Grant county, Wisconsin. One child was born of this marriage. In 1902, while married to said Johnson Clinger, petitioner went to live with A. D. Van Schaick, hereinafter referred to as "decedent," at Bellevue, Iowa, as his housekeeper and took her child with her. In 1909, while living with decedent, petitioner brought divorce proceedings against her husband, Johnson Clinger, in the circuit court for Grant county, Wisconsin. An interlocutory judgment was entered in said divorce action on October 29, 1909, but no final judgment was ever entered. Johnson Clinger died July 22, 1937.
Upon entry of the interlocutory judgment, petitioner returned to Iowa and commenced cohabiting with decedent immediately and thereafter petitioner and decedent held themselves out to the public as husband and wife. In 1912, petitioner and decedent moved to the state of Minnesota where they continued their same relationship. In the spring of 1924, petitioner left decedent and went to South Dakota where she married one Allie Lester by a formal marriage ceremony, and lived with said Allie Lester as his wife until some time in the year 1926. Petitioner and Allie Lester were never divorced and at the time this action was tried, said Lester was still living.
In 1926, petitioner left Allie Lester and resumed her former relationship with decedent in Minnesota. In 1935 or 1936, petitioner and decedent moved to Wisconsin and remained residents of Wisconsin until the death of A. D. Van Schaick on November 28, 1947. Petitioner and decedent vacationed in Texas during the winters of 1940. 1943, 1944, 1945, and 1946, during which time they lived in a tourist camp.
At no time did petitioner and decedent enter into a formal marriage.
Any other material facts will be stated in the opinion.
It is clear that the petitioner could only be relieved from the legal impediment created by her first marriage by a divorce which had the legal effect of removing the impediment. Under the law of 1909, a final judgment was required in order to have that effect. She would only be free to marry again after final judgment, which could not be entered before the expiration of one year from the interlocutory judgment. See Dallmann v. Dallmann (1915), 159 Wis. 480, 149 N.W. 137. Obviously, since petitioner did not secure a final judgment in the divorce proceedings against Johnson Clinger, there could not be a common-law marriage between the petitioner and decedent prior to the death of her first husband, Johnson Clinger, in 1937, and the marriage between Allie Lester and petitioner in 1924, would be null and void.
It is conceded that the residence of petitioner and decedent since 1935 was in Wisconsin. Common-law marriages were abolished in Wisconsin in 1917 and, therefore, petitioner can claim no common-law marriage in Wisconsin.
Petitioner contends that a common-law marriage was established in Texas as petitioner and decedent lived and held each other out to the public as husband and wife and met every requirement of a common-law marriage in the state of Texas during the several months out of several different years between 1940 and 1947 that they vacationed in that state.
It is unnecessary for us to discuss this contention for sec. 245.04, Stats., provides:
"If any person residing and intending to continue to reside in this state who is disabled or prohibited from contracting marriage under the laws of this state shall go into another state or country and there contract a marriage prohibited and declared void by the laws of this state, such marriage shall be null and void for all purposes in this state with the same effect as though such prohibited marriage had been entered into in this state."
Since petitioner and decedent were residents of the state of Wisconsin, the above statute applies. Petitioner was not the wife of decedent during his lifetime and is not entitled to any rights as widow and heir in A. D. Van Schaick's estate.
By the Court. — Judgment affirmed.