I dissent. In my opinion there was sufficient competent evidence in the case to justify the finding of the learned trial judge that a common-law marriage existed between Hiram J. Rhodes and Esther O'Brien, entered into approximately in the year 1873, and that the issue of that marriage are legitimate under section 7074, Revised Codes of 1921.
I am unable to attach importance to the depositions of Hiram J. Rhodes and Esther O'Brien taken before James F. Williamson, a special examiner of the pension office, or to other statements made by them in an effort to obtain a pension for Esther O'Brien, and which tend to negative the existence of such a marriage. The statements were not made "under circumstances justifying the conclusion that there was no probable motive to falsify the facts declared." On the contrary, they were made at a time when there existed a controversy as to whether Esther O'Brien was married, and when *Page 137 the granting or withholding of the pension depended primarily upon whether she was married or unmarried. The motive to falsify is apparent. That the witnesses did falsify in some material matters is equally obvious. The statements of these witnesses in the depositions are so obviously false in some particulars, and their efficacy is so destroyed by self-contradictions and evasions that they are unworthy of belief in respect to the question whether a marriage existed between the parties.
In my opinion the judgment should be affirmed. *Page 138