The Saint Paul globe. (St. Paul, Minn.) 1896-1905, 1896-11-28
AND WIDOWS RECOMMENDED TO
THE LEGISLATIVE ATTENTION
IN SUPREME COURT.
JUDGE MITCHELL COMMENTS
ON THE FREQUENCY OF POST
M0RTEM MARITAL CLAIMS IN
A DECISION
IN THE HULErr FAMILY FIGHT
Common Law Widow Fares Well in
the Distribution of Favors ina
the Trial.

1t is not often that the supreme court
volunteers a recommendation to the
legislature of the state, but in a modest
way it did yesterday in an opinion
handed down by Judge Mitchell in
the matter Of the state Of Nehemiah
Hulett, John r. Carey, as administra-
tor, suing Lucy A. Hulett
Nehemiah Hulett, who, for many
years. had been a resident OF Duluth
and was reputed to be bachelor, died
July 25 1892. The administrator Of his
estate found and had probated a will
Hulett had executed in May, 1862. The
will was proved and admitted to pro-
bate. But, Feb. Ii. 1898, a woman call
ing herself Lucy A. Hulett appeared
in the probate court and filed a petit
ton, asking that the homestead and
certain personal property allowed by
the law to the widow of citizen be
set aside for her In the petition, she
set up the claim that she had been
married to Hulett by contract,
There had been no formal ceremony
or solemnization, but she and Hulett
had mutually agreed that they would
become man and wife and live to-
gether as such and an agreement to
that effect had been executed in writ
ing and signed by each of them. Later,
Sept. 10, Mrs. Eulett fled q petition
asking that the will be vacated and set
aside, as not the last will and tesla
ment OF her husband. The claim was
also set up that the will had been re-
Voked by the subsequent marriage of
the party who executed it, though he
had died without issue.
The probate court denied both petit
lions, and the case was appealed to
the district court, where the decision
or the probate court was reversed
A number of questions were submit
tea to the court, but the only one re-
Iefred by the court to the jury was
Whether the signature of Hulett to the
marriage contract was genuine or not.
Inc jury decided that it was. The
other questions of both law and fact
were left to the court. The appellants.
OF he1rs or the estate, hold that this
was error They also set up in evil
dence contracts made by Hulett subse
quent to his alleged marriage in which
ne was described as a single man. The
court rejected these, and the supreme
court sustains the refusal to admit
them In evidence. But the supreme
court holds that the will Of a man is
not revoked by his subsequent mar
rage alone, without a birth of issue
Inc judgment Of the district court
setting aside the probate Of the will
and adJudging it to be of no effect
! is reversed, but the ruling of the court
making an allowance from the estate
TOT the maintenance of the widow dur
ing the administration of the will "a
affirmed
| The opinion goes at some length into
| the philosophy Of the common law as
| TO marriages, and comments that While
| II might be urged against the common
law custom as to wills that the ten
dency of 1t was toward the perpetual
ton of feudal system not in SYM
| pathy with institutions Of this country.
the object Of the law seems to have
| been to protect the children of the de-
ceased who might otherwise be thrown
| upon the world without protection.
The court suggests that it was not in
tended by the statute to give com
mon law wife the same protection as
1 her children. Decisions of the courts
| back to the time Of Charles II. are
| quoted, and it is after a. considera bic
4 discussion Of the why's and Wherefores
| Of the common law that the court com
| mentS:
In view Of the increasing number Of
! common law widows laying claim On
many instances, doubtless, fraudulent
| ly) to the estates of deceased men Of
wealth, it is a question for the legis-
lature whether the common law should
not be changed"
The court finally sums up it's decision
| as follows:
I'm the appeal from the Judgment
setting aside to the petitioner the home
stead Of deceased and giving her an al
| lowance out Of his estate for her main
| tenance during administration the
| judgment is affirmed
In the other appeal the judgment set
! ting aside the probate Of the will and
| adjudging such will to be Of no force
or effect is reversed, The syllabus is
| as follows:
| In re estate of Nehemiah Hulett, John r.
Carey as administrator. etc., ct al, appel
lants, VS. Lucy A. Hulett, respondent.
| The issue being whether the deceased exc
cuted an alleged written contract of marriage
! with the, petitioner, conveyances executed by
the deceased subsequent to the marriage con-
| tract, in which he was described as a single
man, were inadmissible in evidence against
the petitioner.
A letter written to petitioner to her sister,
subsequent to the execution of the marriage
contract in which she referred to the de-
ceased as ''her husband and 'your BROTHER
was handed by her to the deceased to read.
He read it, enclosed it in an envelope adj
dressed to the sister, and put it in his pocket
! with other letters apparently for the purpose
of posting it. Held that this SO connected
| the deceased with the letter that it was COM
petent evidence in favor of the petitioner as
his admissions.
1 1t is mutual present consent lawfully ex-
| pressed, which makes marriage. All that is
/ necessary to render competent parties huS-
band and wife is that they agree in the pres
! ent tense to be such, time being contem-
! plated to elapse. before the assumption of the
status 1t is not necessary that such a con-
tract be followed by holding themselves out
to the public husband and wife, or that
IT be acted on by their professedly living to-
gether in that relation. The distinction noted
between the fact of marriage and the proof Of
| it.
The fact that under our statutes wife may
inherit from her husband has not changed
| the common rule that the will Of man is not
| revoked by his subsequent marriage alone
without the birth of issue
The order in one appeal affirmed and in the
| other appeal reversed. Mitchell, ).