The Scranton tribune. [volume] (Scranton, Pa.) 1891-1910, 1895-08-13
DOC" SMITH UNMARRIED
Claim Of Common Law Relationship
Rejected BY Court.
JUDGE ARChBALD's FINDING
Decides That Smith Was Merely Living
with LII HOwsrd-Resistcr kOehlsr's
Decision Reversible win
Go to supreme Court.


President Judge r. w. Archibald. In
an opinion fIlnded down yesterday,
went ON record against common law
marriages. The court reversed the de-
cis,on Of Henry 4. Koehler. who was
registep of wills in 1894, and revoked
and set aside the letters OF administra-
tioo granted by Mr.. k'ehlsr to Doc"
NJ. ID. Smith In the estate OF Eta N.
Walter deceased. who during the last
ten or fifteen years OF her life was
commonly known as ILL Howard
For four years prior to her death the
decedent lived In Throop borough and
was prop.ietress of an establishment
labeled the prospect House." situated
along the boulevard. She died on Oct.
10, 1894. intestate. and on Nov. follow
ing. letters of administration In the es-
tate were granted to DOC" Smith. who
alleged that he was her husband ac-
cording to common law marriage.
Immediately subsequent to the grant
ing Of the letters, Aseneth Davis, a
half-sister OF the decedent, through At
torney f. c. Newcomb, petitiOned the
register for hearing to take testimony
and show cause why the letters Of ad-
ministration granted to Doc" Smith
should not be set aside on the ground
that the letters We're procured by him
as the alleged husband. and that such
was false and fraudulent and ne was
not In fact the decedent's husband. The
petition stated that Eta NJ. Walter
had never been married and left to sur
v!ve her as next of kin, Harriet FitZ-
gerald and Aseneth Davis, haR-sisters.
and Judson Comstock. Giles Comstock
and Raymond Comstock, half-brothers.
Hearings were held before the regis
ter on Dec. 20 and q. at which much
testimony was taken. doc" Smith
was the first witness and he swore that
by mutual agreement he and the de-
cedent ten years prior had agreed to
live together as man and wife, until
death would them part. The scene of
this common law ceremony was In a
resort in Raymond court.
Was Called Miss iiOwar.s
Several witnesses were sworn and
they said that the decedent, while she
lived in Raymond court and after she
moved to Throop, was often called
Mrs. Smith, but they also, frequently,
heard her addressed as Miss Howard"
Documents were produced, the rev.
enue licenses. checks, notes. receipts.
etc, to show that the decedent always
retained her individuality and signed
her hand as Eta NJ. Walter. The deci-
sion of the register was against the pe-
titicner and sustained the letters pre-
viously granted. Mr.. Koehler having
been satisfied that doc" Smith was
the lawful husband Of the decedent.
decided that he was rightfully entitled
to administer her estate.
Judge Archibald yesterday handed
down the decision reversing the regis
ter and the letters Of administration Is
sued to the respondent, NJ. d. Smith,
are revoked and the present register.
w. 8. Hopkins, is directed to issue new
letters to such of the brothers and sis
ters Of the deceased Eta M. Walter, as
he shall deem proper, as provided for
according to the statutes. Court also
further orders that the respondent, NJ.
D. Smith, shall surrender any property
Of the decedent in his hands and to pay
the costs.
Judge Archibald was not much i'm
pressed with the validity Of doc"
Smiths claim as the husband Of the de-
cedent In his decision, Ex-Reglster
Koehler quoted passages Of law bearing
on matrimony, but Judge Archibald de-
voted himself specially to the testimony
at the hearing, as to whether their evil
dence established the fact that 1t was
the intention of the respondent and the
decedent to enter into marriage con-
tract. The syllabus of the opinion is
as follows
No Outward Appearance Of Marriage.
"The decedent, at the time of he.
death, was keeping a house Of assigna-
tion and the respondent was living with
her. For q number of years prior to the
purchase of the ThroOp property she
had been a common prostitute, and In
that capacity went by the name Of 'Idl
Howard During this period In 1884
or 1885 the respondent claims to have
married her, but there was no outward
appearance of marriage. AS one of the
witnesses gave 1t, 1T was simply that
Doc Smith and Lii Howard were living
together
1.-THE maiden name of the decedent
was Esther or Eta M. Walter, and this
she retained up to the time Of her
death. In March, 1891. when she pur
chased the Throop property, the deed
was drawn by her directions TO her as
Eta M. Walter, and the mortgage she
gave In return for the unpaid purchase
money was in the same name. All the
insurance policies were In her name
The same Is true with regard to her
business purchases.
"She also kept bank account in the
First National bank Of Scranton and
the checks upon 1t are all signed 'Etta
NJ. Walter She held a United States
internal revenue license In the name Of
Eta M. Walter. At last, when she died
and came to be buried. the plate on hey
coffin was inscribed. Esther NJ. Wal.
ter and with that name she was laid
In her grave.
1.-THE respondent. however, claims t(
have established that she was his wife
first, by his own testimony; second
by her admissions; and third. by a repu
tation Of marriage. He first became ac.
quainted with her in 1877 at Wilkes
Barre, where she had been an inmate
of sporting house. and next saw her
five years later In the same locality ir
n similar resort. In 1883 she came (,
Scranton and lived with one Haiti
Bright. in Raymond alley, where thC
respondent was common caller.
Neither Cons istcnt or Credible.
1.-THE story OF the respondent upon
which he asserts a contract of mar.
riage Is neither consistent nor credible
II this Is sufficient to establish mar
riage. II is a reflection on all decent liv.
Ing. Facts take their significance from
the attending circumstances OrdinarI
ly, being introduced as a mans wife
and being known and called by mis-
name Is an admission and evidence o
marriage of no light import but her,
It was manifestly a pretense, a fllmsy
veil assumed for purpose. and trans
parent to every one except innocent
nelghbors and OBSERVATION-DISCLOSURES
members Of the respondents family
But that which IL conclusive Is tina
to herself she was Eta M. Walter, tn.
name her mother gave her. This namc
she maintained with the knowledge a.
the respondent, who now claims I,
have been her husband. In all tina
touched upon her personal possession
and affairs. The same contradiction q
marriage appears in all her business
transactions In which ne either actual
ly participated or by which he was
cognixant. Finally, when she died anf