In Re Estate of Richards

COOPER, C.

Appeal from order setting aside the whole of the estate to the widow of deceased. There is no question as to the value of the estate being less than fifteen hundred dollars, and that it was the duty of the court to set it aside to the' widow. The principal question to be determined is as to which of the contending parties is the widow.

A petition was filed by one Lydia, claiming to be Lydia Richards, the surviving widow.

An opposition to this petition was filed, and also a- petition by one Elizabeth, claiming to he Elizabeth Richards, the surviving widow. Upon the issue thus made, the court heard evidence and filed findings, of which finding 1 is as follows: “ The court finds that the petitioner, Lydia Richards, on the-seventeenth day of September, 1880, in the state of Missouri,

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intermarried with said deceased, and from that time down to the time of his death she and the deceased were husband and wife, and that she is now the surviving widow of said deceased.” And finding 4 is as follows: “ The court finds that the petitioner, Elizabeth Richards, never at any time or place intermarried with said deceased, the said deceased being, at the time of the alleged marriage to said Elizabeth Richards, the husband of said Lydia Richards, as before found, and the said Elizabeth Richards is not the surviving widow of said deceased, although the court finds that she believed in good faith that she was legally married to and was the lawful wife of said deceased, as alleged in her said petition.”

These findings are challenged as being without support in the evidence, and upon this the case must be determined.

In support of the first finding the uncontradicted testimony of Lydia Richards is as follows: “There was a solemnization of marriage performed between me and deceased on the seventeenth day of September, 1880, in the state of Missouri, by a justice of the peace. The justice of the peace said, ‘ Do you take one another to be your lawfully wedded husband and wife,’ and we answered, ‘I do,’ in each case. I was standing at the side of Mr. Richards at that time. That was in the justice’s office in the town of Butler, Bates County, Missouri. It was the county seat. Immediately after that we went home to Rich Hill, and lived together from that time on for four years, until he came away and left me. . . . During that four years Mr. Richards provided for me the necessaries of life, and I kept house for him and lived with him, and slept in the same bed with him, and went among his and my friends as husband and wife. ... I continually cohabited with him. I had one child by him; it is dead.”