Dallas Morning News
January 27, 1895

The case of A. M. Ingersoll and B. F. Coleman vs. Ada A. McWillie, appealed from Grayson county, in which the discussion of what constitutes matrimony cut __ figure, was affirmed last Wednesday in the court of civil appeals, Chief Justice Lightfoot rendering the opinion, as follows:
The statement by appellants is concurred in by appellees and is adopted, as follows:

The is a contest over the right to administer upon the estate of A. R. Collins, deceased.  The case originated in the county court of Grayson county, Tex., in February 1893.  A.R. Collins died intestate at his home in Grayson county.  Afterward C. T. Daugherty was duly appointed by the count court of Grayson county as administrator gave the bond and took the oath required by law.  On Feb. 17, 1894, the said C. T. Daugherty departed this life without having fully administered said estate.  After the death of said C. T. Daugherty, Mrs. Ada A. McWillie and N. S. Ernst filed their application in the county court of said county for letters of administration de bonis
non upon the estate of said Collins, and afterward A. M. Ingersol and B. F. Coleman contested the appointment of Mrs. Ada A.
McWillie and N. S. Ernest, and requested that they be appointed.  A trial was had in the county court of said county, which resulted in the appointment of Mrs. McWillie and Ernst.  From the judgment appointing them administratrix and administrator of this state, Ingersol and Coleman appealed to the district court of Grayson county. In said last mentioned court the parties amended their pleadings.  The applicants, Mrs. A. McWillie and N. S. Ernst, after setting out the jurisdictional facts and the necessity for administration, alleged that the said decedent left as his surviving wife, Hortense Collins and two children, to-wit, Walter Collins,
aged 16 years and Gretchen Collins, aged 18 months.  They also alleged that they were entitled to letters of administration upon
said estate by reason of the renunciation in the favor of said Hortense Collins.  They also alleged that they were entitled to
administer by reason of the endorsement and request of many creditors of said estate.  They further alleged that they were entitled
to administer in their favor of Mrs. Lucy Wilder, who resides in the county of Tennessee, state of New York, who was the aunt and next
of kin of the said A. R. Collins, deceased, after the said Hortense Collins, Walter Collins, and Gretchen Collins; and they also alleged that N. S. Ernst was a creditor of said estate, and that his co-applicant, Ada A. McWillie is a cousin of said Collins, and the
nest of kin to him residing in the state of Texas, after the said Hortense, Walter and Gretchen Collins.

"The amended application of the said A. M. Ingersol alleged that he was the first cousin of the said A. R. Collins, deceased, and that he was a citizen of Grayson county, Texas, and that he was in no way disqualified to act as such administrator; that the applicant,
Ada A. McWillie, was a married woman and only a second cousin of said A. R. Collins, deceased; that the said Hortense Collins was not the surviving wife of said A. R. Collins, as claimed by her; that she already had a suit pending in the district court against the estate of
A. R. Collins, whereby she seeks to establish the fact that she is such surviving wife.  After alleging other facts not necessary to be state here, said Ingersol alleged that is he was not entitled to administer alone or with another, then he averred that B. F. Coleman was a suitable person to administer upon said estate, and waived his right to administer in favor of said Coleman.

"The amended protest, and application of B. F. Coleman alleged that he resided in Grayson county, and that he was not disqualified by law from having letters of administration granted him upon said estate; that at the time of his death the said Collins was an unmarried man, and did not leave surviving him any father or mother, and that the sole surviving next of kin o said Collins was
Walter D. Collins, who was about 17 years of age, and who resided in Grayson county, Texas, and who was a son of the said decedent; that the said Walter D. Collins, by power of attorney duly authenticated and filled, renounced any right he might have to administer upon said estate in favor of the applicant B. F. Coleman, and that said Walter D. Collins would renounce any right he
might have to such appointment in open court in favor of Coleman; that M. A. Daugherty, who resides in McLennan county, Texas,
is the duly appointed and qualified guardian of the person and estate of said Walter D. Collins, and that the said Daughtery will in open court renounce his right to be appointed administrator of said estate in favor of the applicant Coleman; that excluding from consideration the said Walter D. Collins, the following persons are the next of kin of the said A. R. Collins, deceased, to-wit: William W. Collins, who resides in Calhoun county, Michigan; S. A. Collins, who resides in Jackson county, Michigan; both of whom are uncles by blood of the said A. R. Collins, deceased, and both of whom by power of attorney duly authenticated, have renounced
any right they may have to administer upon said estate in favor of applicant Coleman; that, excluding from consideration the son
and two uncles above named, and the following are the next of kin of the said A. R. Collins, deceased, to-wit:  Addison C. Collins,
W. B. Collins, Charles E. Collins, Cynthia W. Wallace and Ida Palmer, each and all of whom reside in Westenaw county Michigan;
that the five persons last named were each first cousins by blood of the said decedent, and that each and all of said five cousins,
by powers of attorney duly authenticated and filed herein, have renounced any right that they and each of them may have to administer upon said estate in favor of the applicant Coleman.  And said B. F. Coleman alleged that a large number of the creditors
of the said estate desired and requested his appointment as such administrator.  The said B. F. Coleman also represented that at
the time of his death she said A. R. Collins left surviving him no wife; that the person named in the application of N. S. Ernest and
Ada A. McWillie be the wife of A. R. Collins, to-wit: Mrs. Hortense Dix Collins, was not in fact and in truth the surviving wife of said decedent; that after the death of said A. R. Collins and after the appointment of said C. T. Daugherty, the child of the said Hortense Dix Collins, through its next friend, A. G. Moseley, made an application to the county court of Grayson county for an allowance of $5000 in
lieu of a homestead, and also an allowance for one year's support and maintenance, and for an allowance of articles of exempt property not found in kind among the property of the said application they said county court adjudged and decreed that the child of Hortense Dix Collins was entitled to an allowance of the character and nature above named to the amount of $5135; that after the rendition of said judgment, the administrator of said estate, Daugherty, appealed from such judgment in the manner provided by law, and that such appeal is now pending in this court; that , while ostensibly the said Hortense Dix Collins is not a party to the said last named suit, and is not by  name a party to this suit, yet , in truth, she is a party to the issue joined, as well in this suit as the one just mentioned; that the said N. S. Ernest and Ada A. McWillie are seeking to be appointed administratrix and administrator upon the renunciation in their favor by the said so-called Hortense Dix Collins, and also upon the application of the said Ada A. McWillie, as next of kin to the said A. R. Collins, deceased, when in fact and in truth the said Ada A. McWillie is only a second cousin of said decedent. The prayer of the contestant and applicant,
B. F. Coleman, was that letters of administration de bonis non be not granted
to said Ada A. McWillie and N. . Ernst, but that he be appointed as such administrator and for all equitable, general and special relief."

In the district court the appeals of B. F. Coleman and A. M. Ingersol were consolidated upon motion of Ingersol.  The consolidated causes were tried in the district court of Grayson county on May 10, 1884 and resulted in a verdict and judgment in favor of Mrs. Ada A. McWillie and N. S. Ernst, from which this appeal is taken.

There was much controversy in the testimony, but from the verdict of the jury and the judgment thereon the conclusion is established that Hortense Dix was educated by A. R. Collins by the consent of her mother with the view of naming her his wife; that after she finished her education he actually entered into the marriage state with her, each mutually agreeing that they would then
and there forward be husband and wife, and upon the faith of such mutual agreement and promise they then co-habited and lived together as such husband and wife, and so continued, and that said A. R. Collins after such agreement and cohabitation recognized said Hortense as his wife and introduced her to his friends as such, and such relation continued until his death, and that at the time
of his death, in February, 1893, he left her as his surviving widow.  She renounced her right to administer on said estate to appellees.
The first assignment of errors as follows: "The court erred in permitting the witness, Hortense Dix Collins, over the objections of contestants, B. F. Coleman and A. M. Ingersol, to testify in the fact the so-called marriage between herself and A. R. Collins, deceased, which testimony is fully set forth in contestants' bill of exceptions No. 1, for the reasons: 1. That said witness in the light
of her testimony was the wife and their-at-law of A. R. Collins, deceased, and she was incompetent to testify to such fact and was incompetent to testify to any transaction with A. R. Collins or any statement made by him by reason of the inhabitation contained in article 2248 of the revised civil statutes of the state of Texas, all of which fully appears by reference to said bill of exceptions
No. 1. 2. Such witness was incompetent to testify to the facts set forth in said bill of exceptions No. 1 for the reason that there was another suit pending in the court to establish the fact that she, the witness, Hortense Dix Collins, was the surviving wife of A. R. Collins, deceased, all of which is fully set forth in said bill of exceptions No. 1."  The court did not err in admitting the testimony of Hortense Dix Collins to prove the marriage.

Under revised statutes, article 2246, it is provided that no person shall be incompetent to testify because a party to the suit or interested in the issue to be tried.  Under article 2248: "In actions by or against executors, administrators or guardians, in which judgment may be rendered for or against them as such, neither party shall be allowed to testify against the others as to any transaction with or statement by the testator, intestate or ward;" and the provisions of the article are extended to the heirs or legal representatives.

This is not an action by or against executors, administrators, guardians, heirs or legal representatives "in which judgment may be rendered for or against them as such."  It is a contest among certain parties who do not claim to be heirs for letters of administration
upon the estate of A. R. Collins, deceased.  Whatever judgment might be rendered in the case would not be for or against either
party in any relation which he sustained at the time such testimony was introduced - as executor, administrator, guardian, heir or legal representative - although such trust relation might be created by the judgment to be rendered.  In so far as the witness is concerned any right which she might have to administer upon the estate would grow out of her relation to the deceased, as "surviving wife," and not, as an heir.  This right would exist even if all the estate was the separate property of the husband and he had willed the whole of it to other parties without naming an executor [R. S. Art. 1861].

It has been held by our supreme court that "the terms of the statute will not be extended so as to embrace those not especially mentioned therein.  In the case of Newton vs. Newton, 77 Texas, 608, it was held by Judge Gaines that the provisions of Art. 2248 could not be extended so as to embrace legatees of devises.  The court says: "This court has held that the exceptions could not
be extended by implication to a class of persons not named, although the reason for embracing them was equally as strong as those which existed for including the persons expressly designated."  Roberts vs. Yarboro, 41 Texas, 451; Markham vs. Caruthers, 47 Texas, 25.

This statutory proceeding for the appointment of an administrator de bonis non, is not strictly an action inter parties, in which
adverse interests are so put in issue that any judgment can be rendered for or against the representative of the estate as such, but
it is a proceeding to place a proper party at the head of the administration.  whatever might be the result, no judgment can be rendered in this case against the administrator as such, or against an heir or legal representative as such.  In the appointment of an administrator the court considers first, "the surviving husband or wife," as such; second, "the nearest of kin" - without regard to whether they are heirs or not, and without regard to any interest they may have in the estate.  The result would be the same if the next of kin competent to administer were not the heirs, or if every vestige of property had been willed to some charitable institution
- without naming an executor. [Wallace vs. Stephens, 74 Texas, 559; Wootens vs. Hale, 83 Texas, 564; Potter vs. Bank, 102 U. S., 163; Berry vs. Sawyer, 10 Fed. Rep., 286].

In the recent case of Martin vs. McAdams, 27 S. W. Rep., 255, our supreme court holds that a contest for the probate of a will to such an action as comes within the terms of the statute, and that one of the children of the divisor, a party to the proceeding, and a devisee under the will, is a competent witness to prove his handwriting in the will, and cannot be excluded under Art. 2248; but the ruling of the court is placed upon the ground that such testimony is not of a transaction with or statement by the testator.
We do not think that any judgment rendered in this case could be used to establish any fact beyond that embraced in the direct result in the case of English vs. Murray, 13 Texas, 467, Judge Hemphill says: "Letters of administration are conclusive that the person therein appointed is such [2 Phillie, p.29]  But the decree granted letters is one which does not arise out of an adverse suite between parties, and in the language of the books, there is no reason for allowing it any further effect than that of establishing the rights and abilities incident to the estate and legal character of the grantee, as administrator."

Hortense Dix Collins is not a party to the suit, and while one of the contesting parties may claim the right to administer, by reason
of the fact that she has renounced her right as "surviving wife" to administer, it would be extending the rule further than the legislature authorized it to exclude her testimony on that ground.  Not being a party to the suit, she is not disqualified by reason of interest in the subject. [Glier vs. city of Brenham, 67 Texas, 349]

The second ground of objection - that the witness could not testify because there was another suit pending to establish that she
was the surviving wife - is wholly without merit.  The competency of the testimony must be determined with reference to this suit, and we have no concern here with any other case in which  the question may be involved.

2. The second assignment of error is as follows: "The court erred in permitting the applications to go into the character of the witness, Lydia Hawley, for chastity, for the reasons set forth in contestants' bill of exceptions No. 2."

This witness had already shown, by her testimony, that she lived intimately with A. R. Collins on his farm, traveled with him,
stopped at hotels with him, received letters from him almost daily during his absence, some of which were of a nature indicating more than business or friendship.  She also testified that she was in the room with him some time before his death and had conversations with him of a confidential nature concerning his relations with Hortense and her children, and told witness that said Hortense was not his wife.  Upon cross-examination of the Witness Lydia Hawley the appellees sought to show by question propounded to said witness that she, the witness, was not a chaste woman, and the following questions were propounded to her; whether she had sustained improper relations with the deceased A. R. Collins, to which the witness replied, after appealing to the court to ascertain whether she must answer such question, and the court having required her to answer it, that she had sustained improper relations with the deceased A. R. Collins, and that such intimacy began in 1889, and continued up to the death of said Collins.  She was also asked whether she had not visited a house of prostitution in the city of Denison, kept by one Dora Cheever,
to which the witness replied she had not except a short time before Dec.25 last, she went there in order to have some sewing done; and certain other questions were propounded to said witness in order to show that she had been intimate with other persons.  To the propounding of such questions and the introduction of such testimony, the contestants, Coleman and Ingersol objected, because irrelevant and immaterial, and because if such testimony was proper at all, it would only be legitimate to show the general had character of the witness for chastity in the neighborhood where she lived.

The question in regard to the visit to the house of Dora Cheever were answered, it seems, without hesitation, and indicated that it was for a lawful purpose.  The testimony of the witness had already shown relation toward A. R. Collins which were more than friendly during the time of the claimed marriage relation between him and Hortense Dix Collins.  Her testimony was largely of declarations of Collins, which it was claimed were communicated to the witness in the closest confidence in his own private apartments, and in the fullest detail, concerning h is domestic affairs, and especially concerning his relations toward Hortense Dix Collins, when there was no one else present.  Under the circumstances the court did not err in allowing appellees to ask her on cross-examination "whether she had sustained improper relations with A. R. Collins."  He own testimony had already gone almost that far, and under the liberal rule allowed the cross examination, it was proper to fully test her evidence by showing the relation
she bore toward Collins and toward Hortense.  Her motives, her feelings, her relations toward the parties were not improper subjects of inquiry, in getting at the proper weight to be given to her testimony.  [Carroll vs. state, 24S. W. Rep. 100; Exon's case, 26 S. W. Rep., 1088, 1 Green1. Ev. 450=460]

None of the testimony elicited from the witness was prejudicial to her, except that which refers to her relations with Collins  - which was competent.  The grounds of the objection as shown by the bill of exceptions are not that the privilege of the witness was in any way violated, but that the testimony was immaterial and irrelevant.  It was both material and relevant in that is tended to show the proper weight which the jury should give to her testimony.  Mr. Thompson in his work on trials, vol. 1 sec. 560, says: "It is one of the objects of a cross examination to discover the motives, inclinations and prejudices of the witness, for the purpose of reducing the effect which might otherwise be given to his evidence.  Accordingly, it has been well said that "it is always competent to show the relations which exist between the witness and the part against, as well as for whom he was called."  The general rule is that anything tending to show bias or prejudice on the part of a witness may be brought out on his cross examination.  The reason for this rule is that such matters affect the credit of the witness and it is, therefore, material to indulge in such an inquiry.  For this purpose it is competent to inquire of the witness concerning his acts, declarations and circumstances, showing the existence of hostile feelings
or prejudice; and the latitude of cross examination is not restricted by the fact that the witness is a party testifying in his own behalf.  The state of mind and feelings of a witness may materially affect his testimony, and the credit of a witness upon whose testimony in part, the issue is to be obtained, is not a collateral and immaterial matter."

In Exon's case, referred to above, the wife of the defendant, who was the mother of the prosecuting witness, was offered by the defendant as a witness to impeach her daughter, and the prosecuting attorney on cross-examination asked the witness "whether
she had ever lived with the defendant, as his mistress before marriage?"  Over objection by defendant's counsel, the trial court permitted the witness to answer the question.  Judge Simkins, on this question, says: "We think the court did not err.  The evidence went to the character and credibility of the witness."  The court makes an elaborate review of the authorities on this subject in the Carroll case and holds such testimony on cross-examination admissible because "it is of the highest importance to know how far
that intimacy extended.  If she was a pure, good woman, free herself from any improper connection with the parties to the transaction, great weight might be attached to her testimony.  On the other hand, if she was unchaste and impure and covering, the period of inquiry was occupying a relation of concubinage with the husband her testimony regarding the wife could not be looked to with so much respect and confidence.  The testimony was admissible.

3.  The assignments of error in regard to the marriage are quite numerous, but we deem it unnecessary to consider them in detail,
as they all raise the question whether there can be a valid marriage in this state without compliance with the statutory provisions in regard to the issuance of license and solemnization.

It was fully shown in the case that A. R. Collins, being a single man, after obtaining the consent of the mother of Hortense Dix, said Hortense then being a girl under her mother's care, sent her to school for the purpose of educating her as his wife and after he education did agree with her to enter the marriage state and that such marriage was consummated by cohabitation, each party agreeing and consenting at that very time to be husband and wife.

There is much to be said on both sides of the question.  On the one side, of the holiness and sanctity of the marriage relation, and that is should be upheld in its purity and the statute laws in regard to it strictly enforced.  On the other side, of the marriage statue itself, dependent upon the mutual covenant of the parties and the relations assumed by them not dependent wholly upon a contract, but upon the status of marriage, which they have reached, using the contract as the threshold over which they have reached that status.  Our statutes provide that certain ministers and officers shall be authorized to solemnize the rites of matrimony, that license shall issue, that such license shall be returned and recorded, and prohibitions are placed upon marriages in certain degrees of relationship  and between certain nationalities. {Rev. Stats., Art. 2838 to 2843}.  The statutes also legalize certain marriages which have heretofore taken place by other methods. {id. 2844, 1846.}  There is no statute declaring that marriage shall be entered into by any other method than that named in the statute shall be null and void.  In order to make a proper legal marriage all the requisites
of the law should be followed.  It is said by a learned text writer that "a marriage, if legal, must be valid, but a valid marriage may be illegal." {Stewart on Mar. and Div., Sec. 5.}

In the case of Hutchins vs. Kimmel, 31. Mich. Judge Cooley says: "Whatever be the form of the ceremony, or if there be no ceremony, if the parties agree presently to take each other for husband and wife, and from that time on live professedly in that relation, proof of these facts would be sufficient to constitute proof of a marriage binding on the parties, which would subject them
to legal penalties for a disregarded of the obligations . . . This has been the settled doctrine of the American courts, and the few
case of apparent dissent are borne down by the great weight of authority in favor of the rule states."  He cites in support of this conclusion, a great number of authorities.

In the case of Meister vs. Moore, 96, U. S. 80-81, the supreme court of the United States reviews the authorities in full, refer with approval to the above opinion of Mr. Cooley and further says: "We will not undertake to cite those which hold a different doctrine, one in accord with the opinion we have cited from 1 Gray.  Reference is made to them in Bishop on Marriage and Divorce, section
283 et esq.; in Reeves' Domestic Relations, 129, 200, in 1 Kent's Commentaries 90, 91 and in 2 Greenleaf on Evidence.  The rule deduced by all these writers from the decided cases is thus stated by Mr. Greenleaf: "Though in most, if not all, the United States there are statutes regulating the celebration of marriage rites, and indicting penalties on all who disobey the regulations, yet is generally considered that in the absence of any positive statute declaring that all marriages not celebrated in the prescribed manner shall be void, or that none but certain magistrates or ministers shall solemnize a marriage, any marriage regularly made according
to the common law, without observing the statue regulations, would still be a valid marriage."

"As before remarked, the statues are held merely directory, because marriage is a thing of common right, because it is the policy of the state to encourage it, and because, as has sometimes been said, any other construction would compel holding illegitimate the offspring of many parents connections of no violation of law."

So much has been written upon this important subject that we deem it unnecessary to go further into the authorities outside of our own state.  A careful examination of our statutes will show that they are not more stringent than others in which the above doctrine has been so clearly annotated by the most eminent judges and text writers.  Our decisions have usually been broad and liberal
upon the subject, and are in harmony with the rule that a marriage may be valid and binding upon the parties although entered into not in accordance with the terms of the statute requiring license and solemnization by a minister or officer.  The question is ably discussed by Judge Willies in the case of Cumby vs. Garland, 25 S. W. Re., 675; also by Judge Simkins in Simon vs. state 20 S. W. Re., 399, in which they each reach this conclusion.  Also see Shreck vs. Shreck, 32 Texas, 683; state vs. Rattick (Mo.), 16 S. W. Re., 32; Bishop on Marriage and Divorce, vol. 1, p. 283 et seq., Stewart on Marriage and Divorce, actions 106-108.  There is an able opinion by Judge Stephens in W. U. Tel. Co. vs. Proctor, 25 S.W. Rep, 819, in which he takes the position that while the above is the
prevailing American doctrine, it is not good law in each state.  See also, in support of Judge Stephens' opinion, the authorities there cited, especially Dumas vs. state, 14 Texas Apps, 472.

In the case of Nion vs. W., L. & Co., 54 Texas, 411, Judge Gaines made the following quotation and comment: "Every intendment of the law is in favor or matrimony.  When a marriage has been shown in evidence, whether regular o irregular, and whatever the form of the proofs, the law raises a presumption as to its legality, not only casting the burden of proof upon the party objecting, but requiring him throughout and in every particular plainly to make the fact appear, against the constant pressure of this presumption that it is illegal and void.  The strength of the presumption increases with the lapse of time through which the parties are cohabiting as husband and wife.  It being for the highest good of the parties, of the children and of the community that all intercourse between the sexes in form matrimonial should be such in fact, the law when administered by enlightened judges seizes upon all probabilities and presses into its service all things else which can help it in each particular case to sustain the marriage and repel the conclusion of unlawful commerce.  1 Bishop on Marriage and Divorce, 6th edition, section 459.  Such is the emphatic language of an able and discriminating commentator.  The decisions of our courts are to the same effect, and some of the cases are strikingly in point, {Carroll vs. Carroll, 20 Texas, 722; Lockhart vs. White, 18 Texas, 102; Yates vs. Houston, 3 Texas, 433}.

In the case of Sapp vs. Newsom, 27 Texas 540, where there was a marriage by bond, at a time when the country was under Mexican laws which required that a marriage to be legal must be celebrated according to the rites, usages and ceremonies of the Catholic church, Judge Bell in sustaining the bond marriage as valid, said: "We think it the duty of the couple upon the highest considerations of public policy to hold that the marriages contracted in these contracts, and should be sustained as valid whenever the consent of the parties and the intention to enter into the state of matrimony and to assume its duties and obligations is clearly shown."  See Smith vs. Smith, 1 Texas 621; Rice vs. Rice, 31 Texas, 178; Lewis vs. Ames, 41 Texas 342; Carroll vs. Carroll, 20 Texas, 731.

Of course no such excuse can be shown for a failure to observe all the rules and regulations prescribed by law and sanctioned by
an enlightened people and christian civilization, but the policy of the law in protecting parties who have innocently bee led into such a marriage is the same.  From the testimony in this case we think there can be no doubt that Hortense Dix, an inexperienced and confiding girl, just from school, and who had a right to look to A. R. Collins as a protector, was induced to enter with him into the marriage state under the agreement of present marriage, he giving some business complications, as an excuse for not making it public by license and public ceremony.  They lived and cohabitated as husband and wife, and he introduced her to his friends as his wife, thereby, admitting the marriage.  She bore him two children as his wife.  While living he did not repudiate the relation.  Since
his death we think that public policy, as well as common justice and humanity, demand that the marriage should be sustained and her rights as survivor protected.

Hortense Dix Collins being the surviving wife of decedent, and having renounced her right to administer to appellees, one a relative of decedent and the other a creditor, and both being competent and suitable persons, we find no reason for disturbing this judgment of the court below and it is affirmed.  Lightfoot, C. J.
Delivered Jan. 23, 1895.