ESTATE OF J. W. WINTERS.
No. 3901--July 18, 1877.
HUSBAND AND WIFE.--DEALINGS BETWEEN MAN AND WOMAN AS
HUSBAND AND WIFE, such relationship being actually
impossible, (there
being an undissolved former marriage of the man with
another woman), cannot be held to constitute a
partnership.
HELD, that the first wife is entitled to half of
common property.
Construing
sections, C. C., 55, 155, 1402, 2395.
M. Cooney, for Catharine.
R. P. Clement, for Ann.
About 1845-6, Winters,
deceased, intermarried in Ireland with one Catharine, now living, which
relationship has not been dissolved, although he soon deserted her and came to
America. In 1857 he married Ann, or at
least the ceremony of marriage was performed, and he lived with her until his
death in 1869, and had several children by her.
He made a will giving all his property to Ann. She was aware before his death (not before
her marriage) that Catharine claimed to be his wife; but she, in administering
the property, treated it as the community property of herself and deceased.
The property was accumulated in business during the
time of the relations between deceased and Ann.
Upon the hearing for distribution, Ann claims that if
she was not the wife of deceased, she was his business partner, and that she is
entitled to one-half of the entire property as surviving partner, and to
one-half of the other half (being all that deceased could dispose of by will)
under the will.
By the COURT:
There is no evidence that deceased and Ann at any time contemplated or
formed a commercial or business partnership; it was marriage they had in
view; that is, she intended marriage, and he imposed upon her by
pretending that he could and did marry.
It is true that marriage casts upon the parties
certain rights and duties in some respects akin to the rights and duties of
partnerships, but not because of or as partners, but because of the marital
condition and as husband and wife; and the rights and duties which either may
wish to extract must belong to or spring from the relation they had in view,
and not from another relationship now for the first time brought forward.
Doubtless, she as a wife (or supposing herself to be
such) aided in the accumulation of the property; but she did it as wife,
not as partner.
Ann has been imposed upon, most egregiously, and in
that way which is the very worst in which a woman can be imposed upon; and the
children had the right to hold the memory of their father in utter abhorrence;
but I know of no principle of law which prevents Catharine from being entitled
to one-half of the estate now remaining.
As conclusions of law, Catharine is entitled as
surviving wife to have distribution to her of one-half of the estate now
remaining, and Ann is entitled to have distribution to her of the other half,
under the will. The children are not
entitled to any share.
Let a decree be drawn accordingly.
Transcribed
by Sue Wood.
© 2007 Sue Wood.
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