, 1892-08-15
THE SMITH CASE.
Decision of the Supreme Court Of
The State.
Judge Robinson OF the superior
court of ThurstOn County IMAM

Judge Robinson OF the superior
court of ThurstOn County IMAM
imOusIy SustaIned.-An Interest
ing Case Relative TO Marriage.
In the matter of the estate of Frank E.
Smith, deceased Lydia Smith,
petitioner appellant, VS.. William II. Fife,
guardian ETC., respondent. No. 546.
Filed August 18th, 1892.
This proceeding is based upon the petit
tion of the appellant for letters Of admin
istration upon the estate of Frank u. smith,
deceased, which petition was made by her
as his widow. Respondent as the guardian
of the persons and property Of Harriet
Annie Smith and Mary Frances Smith,
minor children of the deceased, opposed
the appointment of the petitioner upon the
grounds that the deceased and petitioner
were never lawfully married to each other.
The admitted facts upon which the matter
stands are as follows: The deceased had
previously been married to another woman
and the children aforesaidnare the issue Of
this first marriage. On October 9Th, 1888,
his said first wife, Minnie e. Smith, OBJ
tained a divorce from him, in the district
court of Pierce county, in this state, then
territory. The petitioner had also been
previously married to one MCFadden, and
on June 9th, 1885, she obtained a divorce
from him in the territorial district court OF
4nuIHbDA GOnubys Liz uGCCdbcu anu bllb
petitioner were married October 18th, 1888,
at Olympia, in Thurston county. Said
Minnie e. Smith and said MCFadden are
both living.
1t was contended that both the decedent
and the petitioner were incapable of con-
tracing marriage within six months from
the time of the rendering of the DEGREES of
divorce in said suits that being the time
allowed within which an appeal could
have been taken. 1t is admitted, however,
that no appeal was taken in either of these
suits. The court below denied letters of
administration to the petitioner upon the
ground that she was not a widow of the de-
ceased, and she appealed to this court. 1t
is admitted that said parties lived and CO.
habited as husband and wife until after
the time had expired within which an APP
peal could have been taken in either of
those cases.
We have lately decided, however, in the
case OF Mclaughlin VS.. Mclaughlin, that
there could be no common law marriage in
this state, and this applies with equal
force to the marriage here in controversy,
for the territorial statutes then in force
upon this subject are similar to the ones
now in existence.
1t is contended by the appellant that the
deceased and the petitioner were lawfully
married in consequence Of the ceremony
performed, Notwithstanding the fact that
the same was performed within six months
aforesaid. Sec zoos of the code of 1881
declares that the court shall order full
and complete dissolution of the marriage
as to both parties in granting divorces,
and it provides "that neither party shall
be capable of contracting marriage with a
third person, until the period in which an
appeal may be taken under the provisions
of the civil practice act has expired; and
in case an appeal is taken then neither
party shall intermarry, with third per-
son, until the cause has been fully deter
mined. Some difficulty arises in conse-
quence of a seeming conflict between the
first part of the section, and the provision
therein contained. The first part of the
section directs that in granting a divorce
the court shall order a complete and full
dissolution of the marriage as to both
parties. The provision, however if given
force must place some limitation upon
this in that decree of divorce could not
be full and complete if the parties are not
allowed to contract marriage with other
persons until the time for an appeal shall
have expired, or in case of appeal until the
same shall have been determined.
If the provision is to have any force it
seems to us it must limit the preceding part
of the section, and the divorce cannot be
held to be full and complete until the time
mentioned in the provision has expired.
1t is full and complete for all purposes
excepting neither party shall enter into a
marriage with any other person during the
time specified, and it must be a limitation
upon it in that respect. During this time
for this purpose the decree of divorce is
suspended, and imperative to that extent
The first part of said section declaring that
all divorces shall be full and complete as to
hOth parties may have been intended to
prevent the granting of the partial divorce
"a mensa ct thorO-than the former spouse
known to the common law; or, perhaps, to
clearly prohibit the granting Of divorces
which would leave one of them capable of
marrying another person, and the other
incapable of so doing. So construed, there
is no conflict with the provision prohibit
ing the parties from marrying as therein
specified.
Having decided that there could be no
marriage under the common law between
these persons, it follows that their having
lived together as husband and wife subse-
quent to the time in which an appeal could
have been taken in either of said original
actions cannot avail the petitioner any
thing, for the same did not constitute
marriage.
Section 1880 declares that marriage is
civil contract which may be entered into
by males of the age of 2l years and females
of the age of Is years, who are otherwise
capable. The provision aforesaid of section
2CO8 specified that neither party should be
capable of contracting marriage with a
third person until the time for an APPEAL
had expired. Consequently these parties
were incapable of contracting the marriage
relation within said time, and no marriage
between them having been solemnized
thereafter, it follows that they were never
husband and wife as to each other.
See Cox VS.. Combs, 8 B. Monroe 231; and
Wilhite VS.. White, 21 Pac r. 173.
The judgment of the superior court is af-
frmed. SCOTT, J.
We concur: Anders, G. j.; Dunbar, j.;
Stiles, j.; Hoyt, J.