On July 16, 1921, upon her petition, Lucy Lotson Beaver was granted a decree of divorce from Alexander Lewis Beaver in the district court of Craig county, Okla., said divorce decree reciting, among other things, "that the parties hereto cannot marry another for six months from the date hereof; * * * that plaintiff be restored to her widowed name of Lucy Lotson."
On the 24th day of October, 1921, Lucy Lotson went, in company with Samuel A. Perry, to Kansas City, in the state of Missouri, and they there procured a marriage license and had a purported marriage ceremony performed by one John George, a justice of the peace; they returned to Craig county, Okla., the place of their residence for many years, and assumed the marital relation and continued to live together in Craig county, Okla., until the 31st day of May, 1922, when Lucy Lotson Perry died intestate, leaving both real and personal property. An administrator of her estate was duly appointed and qualified, and after notice to creditors had been given, and after the expiration of more than four months, on March 24, 1923, a petition was filed in the county court of Craig county by Alex Mudd and Maude Lee Mudd, praying the county court to order a partial distribution *Page 174 of said estate to said petitioners, alleging in their petition that they were the surviving brother and daughter of a deceased brother of said Lucy Lotson Perry, and were the sole surviving heirs at law of decedent and entitled to have the estate of Lucy Lotson Perry distributed to them. Due notice of the hearing of said petition was given, and on April 19, 1923, Samuel A. Perry filed his answer and cross-petition admitting that Alex Mudd was a surviving brother of decedent and Maude Lee Mudd was a daughter of a deceased brother of decedent, both of whom he admitted were entitled to share in the distribution of the estate of decedent, but alleging that —
"On the 24th day of October, 1921, he was legally married to the said Lucy Lotson Perry; that he lived and cohabited with her from said time, as her lawful husband, down to the date of her death, which occurred on the 31st day of May, 1922; that she left no surviving children or child"
— and praying that upon hearing he be decreed by the county court the surviving lawful husband of said Lucy Lotson Perry and that one-half of her estate be distributed to him and that the remaining one-half be distributed equally to Alex Mudd and Maude Lee Mudd, the three of whom constituted the sole surviving heirs at law of decedent.
The petition of Alex Mudd and Maude Lee Mudd and the answer and cross-petition of Samuel A. Perry came on for hearing in its regular order, and after said hearing and on the 17th day of May, 1923, the county court of Craig county entered its order and finding that the said
"Alex Mudd and Maude Lee Mudd are the sole and only heirs at law of said decedent, and the sole and only persons entitled to have distributed to them the estate of said decedent; that cross-petitioner, Samuel A. Perry, is not an heir of said decedent and is not entitled to have distributed to him any portion of the estate of said decedent"
— and ordered that a partial distribution of said estate be made, from which finding and order of the county court Samuel A. Perry prosecuted his appeal to the district court of Craig county.
When the appeal was called for trial in the district court of Craig county, Samuel A. Perry, the appellant, over the objection and exception of the appellees, first having obtained permission of the court to do so, amended his answer and cross-petition by inserting the following paragraph:
"That the said Lucy Lotson Perry and Samuel A. Perry were married at Kansas City, state of Missouri, by ceremonial marriage on the 24th day of October, 1921, in good faith, for the purpose of lawful matrimony, and that they thereafter lived together as husband and wife, treating each other as such, holding themselves out to society, their friends, relatives and the world as such, and being so regarded by their friends, relatives, and the world; and that this relation continued down to the date of her death on the 31st day of May, 1922, they each believing themselves to be lawfully wedded and believing their relations lawful, and intending it to be so. That subsequent to said marriage ceremony at Kansas City said parties also accepted and agreed with each other that they were to live together as husband and wife according to the customs of the Osage Tribe of Indians."
After hearing the evidence in support of the petition and answer and cross-petition, the district court of Craig county, on the 1st day of March, 1924, rendered its judgment and order, finding that Samuel A. Perry was the lawful surviving husband of decedent and entitled to inherit one-half of the estate of decedent, and that Alex Mudd and Maude Lee Mudd were entitled to each inherit one-fourth (,) thereof, and from this order and judgment Alex Mudd and Maude Lee Mudd prosecute their appeal to this court. However, appellant Maude Lee Mudd has subsequently dismissed her appeal.
There are a number of assignments of error, but in our judgment there are two which are well taken, either one of which necessitates a reversal of the judgment of the district court. First, it is contended by plaintiff in error, and that contention is, in our judgment, abundantly justified by the facts disclosed by the record, that in the county court Samuel A. Perry based his claim to participate in the distribution of the estate of the decedent wholly and entirely upon the Kansas City marriage ceremony, which was performed about three months after the decedent was divorced in Craig county from her former husband, and at a time when she was legally incompetent to contract marriage. However, after the county court made its findings and before the case was tried in the district court, the Supreme Court of this state, in the case of Atkeson v. Sovereign Camp, W.O.W., 90 Okla. 154, 216 P. 467, rendered its opinion holding that —
"A marriage contract entered into between persons, one of whom has been divorced, within the six months' period, even though the marriage ceremony is performed outside of this state, is void."
It is contended by plaintiff in error that *Page 175 after the rendition of this opinion by this court defendant in error sought to avoid the consequences of this opinion by changing the issues and amending his answer and cross-petition after the cause had been lodged in the district court, and that the district court committed reversible error in permitting said issues to be changed. We are of the opinion that the complaint of the plaintiff in error in this respect is well founded. In the case of Parker v. Lewis, 45 Okla. 807,147 P. 310, this court says:
"While by section 16, art. 7, Constitution, it is provided that, on appeal to the district court in probate matters, the cause shall be tried de novo upon questions of both law and fact, we are not to understand that thereby new and distinct issues may be made for the first time. A trial de novo has a well-defined and generally understood meaning, and does not contemplate the framing of new issues in the appellate court. In Ex parte Morales (Tex. Cr. App.) 53 S.W. 107, it was said that a trial de novo on appeal requires that appeals be tried upon the original papers and upon the same issues as had below, and that the term `de novo' meant `anew,' `a second time,' citing Rap. L. Dictionary, 8 Am. Eng. Enc. of Law 832. In this connection in 3 Cyc. 262, referring to appeals from probate courts, the rule is thus announced: `The case is to be tried in the appellate court upon the same issues that were presented in the lower court.'"
This court again said in Re McGannon's Estate, 50 Okla. 288,150 P. 1109, speaking on this subject:
"On such appeal, however, the issues must remain the same as those tried in the county court, as the jurisdiction of the district court is only appellate and no new issues can be injected into the case in the district court."
Also in Re Estate of Talomase, 98 Okla. 212, 225 P. 156, in the third paragraph of the syllabus this court said:
"The district court has no original jurisdiction of the settlement of guardianship accounts, but has appellate jurisdiction only, and where an appeal is taken to the district court from the orders of the county court in guardianship matters, new items of account offered in the district court by way of amendment to the report of the guardian can not be considered."
A careful investigation of the record forces us to the inevitable conclusion that when the defendant in error appeared in county court he staked his claim to participate in the distribution of the estate of decedent entirely upon the Kansas City ceremonial marriage, but after this court had rendered the opinion in the Atkeson Case, that he then saw the futility of attempting to stand upon this alleged marriage and sought cover under the protecting wing of a so-called common-law marriage, and in allowing him to change the very foundation of his action we think the district court committed reversible error.
However, the real question in our judgment presented by the facts in this case is whether or not the defendant in error should be entitled to a portion of the estate of the decedent upon his claim as the common-law husband of decedent. Indeed it appears from the record that his claim both in the district court and in this court is based entirely upon what he is pleased to term a common-law marriage after the expiration of the six months' period following the granting of the divorce to decedent.
Section 510, C.S. 1921, provides:
"It shall be unlawful in any event for either party to such suit to marry any other person within six months from the date of the decree of divorcement * * * any person marrying contrary to the provision of this section shall be deemed guilty of bigamy, and such marriage shall be absolutely void."
And section 511, C.S. 1921, further provides that:
"Every person convicted of bigamy, as such offense is defined in the foregoing section, shall be punished by imprisonment in the penitentiary for a term of not less than one year, nor more than three years."
Section 2432, C.O.S. 1921, provides:
"When the offense either of bigamy or incest is committed in one county and the defendant is apprehended in another, the jurisdiction is in either county."
Section 2720, C.O.S. 1921, further provides:
* * * And when the second marriage took place out of the state, proof of that fact accompanied with proof of cohabitation thereafter in this state is sufficient to sustain the charge."
The validity of this statute was first called in question in the case of Wilson v. State, 16 Okla. Cr. R. 471, 184 P. 603, wherein W.E. Wilson, within six months after a divorce decree had been granted, went to the state of Texas, married another woman, and returned to reside in Oklahoma; he was prosecuted under the above statute in the district court of Cotton county and found guilty and given a sentence of one year in the penitentiary, from which conviction he appealed to the Criminal Court of Appeals, and in passing upon that provision of the statute the court said: *Page 176
"The penal provisions of section 4971, R.L. 1910 (which is sec. 510, C.S. 1921), are directed solely against the remarriage of either party to a divorce proceeding to any other person within six months immediately subsequent to the rendition of the decree of divorce. Held, the jurisdiction of a prosecution under such statute is in the county where the second marriage takes place; and, held, further, where one of the parties to such decree, within the prohibited period of six months, marries another person without the state, and subsequently returns and cohabits with such person in this state, the subsequent cohabitation not being of the gist of the offense defined by such statute, there is no jurisdiction to prosecute thereunder in this state."
This decision seems to have been considered an invitation for those who had a desire to violate this provision of the law to make a mad rush to adjoining states for the purpose of attempting to evade the provisions of the statutes above quoted. Counsel for defendant in error in his opening statement to the court (C.-M. 72) says:
"It was the common practice in this state * * * there are thousands of marriages in this state consummated on the assumption that they had a right to go to another state and marry. * * * A well-known judge who sat on the bench in Tulsa county for a good many years made the statement that there were at least four hundred of these cases in Tulsa county alone."
It will be observed that the Criminal Court of Appeals in the case of Wilson v. State, supra, did not even hint that such a marriage is a valid marriage, but merely held that a prosecution would not lie in this state where the marriage was consummated in another state, although the impediment existed. We are fully aware that there are a great number of decisions of this court recognizing a so-called common-law marriage, but we submit that this court has never recognized as a valid marriage one consummated and continued under the conditions disclosed by the record in the case at bar.
Under the doctrine laid down in Atkeson v. Sovereign Camp W.O.W., supra, the marriage of Lucy Lotson and Samuel A. Perry was void ab initio. It was not only void, but under the terms of our statute bigamous and felonious, and from the record and briefs we assume that counsel for defendant in error base no claim for their client upon such void marriage, but claim a right to participate in the distribution of Lucy's estate entirely upon what they are pleased to term a common-law marriage, which position, in our judgment, is wholly untenable. They cite with approval and quote at length the case of Stuart v. Schoonover, 104 Okla. 28, 229 P. 812, but a careful examination of that authority is a very convincing argument against the position of defendant in error. In that case Mary Crowther Schoonover obtained a divorce from her husband, Eugene Crowther, on August 7, 1916; about 28 days before the expiration of the six months period she and Grover C. Schoonover went from Osage county, Okla., to Muskogee, Okla., procured a marriage license, and celebrated ceremonious nuptials; they went back to Osage county, where they lived as husband and wife, and commenting upon the facts, this court said:
"The pretended marriage of said Grover and Mary at Muskogee within six months of the date of her decree of divorce was absolutely void under the express language of our statute and the decisions of this court. If said Grover was the lawful husband of Mary at the time of her death, and thereby one of her heirs, he became such because of a common-law marriage, recognized in this state, consummated between them after such impediment was removed.
"Under Clark et al. v. Barney et al., 24 Okla. 455,103 P. 598, if both Grover and Mary knew that they were contracting marriage before the expiration of said six months and that the former spouse of said Mary, Mr. Crowther, was still living, their relations in that event being bigamous and criminal ab initio, the presumption is that they continued so, and that this relation could not ripen into a common-law marriage, except by proof that by their acts and conduct, or agreement, after such impediment was removed, such relation became matrimonial rather than meretricious. * * * The judgment of the trial court is affirmed on the ground that, whether they were in good faith or bad faith in the beginning — whether their relations ab initio were matrimonial or meretricious — they did consummate a common-law marriage after the removal of such impediment by their acts and conduct as well as by more formal agreement. * * *
"In September, 1917, domestic perturbations caused them to separate for a few days. Mr. Schoonover convinced Mary that he had not been unduly friendly with other women. They agreed to cease quarreling. She said she would live with him and be a good wife and he told her `all right.' Thereupon they resumed the marital relations."
It will, therefore, be observed that the bigamous relations existing between the parties were terminated and were not considered by the court in determining whether or not they were really husband and wife, but their marital status was fixed by the *Page 177 court entirely upon their agreement to live together as husband and wife after the removal of the impediment, to wit, the expiration of the six months period.
In the case of Clark et al. v. Barney et al., 24 Okla. 455,103 P. 598, we quote the following:
"In this case it appears from paragraph 11 of the agreed facts that, when the alleged second marriage took place at Oklahoma City, the said Margaret Barney was then living at Topeka, Kan., undivorced from the said Joseph A. Barney, and that he and the said Elizabeth A. Barney knew that she was so living at Topeka, Kan. Under said admission the parties knew that they had not the capacity to consummate a marriage contract, and when they assumed such relation they knew it was unlawful and adulterous; nothing being bona fide. And whilst it is the policy of the law to encourage legitimacy, yet, in order to do so, it will not encourage licentiousness. This relation in its inception being bigamous and adulterous, after the death of the said Margaret Barney there is no presumption of a change of relation, and if there was such a change it must expressly appear by proof, to place the parties in the eyes of the law in a lawful relation. Common-law marriage grows out of good faith, honest intentions, and proper purposes, and if willful bigamous relations, after the death of the party who has been wronged by the other spouse, are to ripen per se by the continuance of such cohabitation, without any perceptible change in the manner of such relations, into a common-law marriage in order to put the seal of legitimacy upon such cohabitation, it would tend to put a premium upon the disregard of marital relations, rather than the ukase of the law against it. The judgment of the lower court is affirmed."
Therefore, before this court can find that Samuel A. Perry was the lawful husband and consequently an heir at law of Lucy Lotson Perry, the evidence must show that after the expiration of the six months period the bigamous relations were terminated and that the agreement, acts, and conduct of the parties were such as to constitute a common-law marriage under the doctrine, rules, and regulations laid down by this court, and that without regard to the purported Kansas City ceremony, and in this connection we submit that the record fails to disclose any facts other than the mere continuation of the bigamous relations existing between these parties upon which to predicate a finding that they in good faith, after the expiration of such six months, agreed to become husband and wife. The record is replete with evidence indicating a moral depravity on the part of the defendant in error, and brazenly testified to by himself, and discloses his total disregard of good morals or common decency; he admitted while upon the witness stand that on numerous occasions he had gone to hotels in Tulsa and elsewhere, and there registered under various assumed names with other women. The record also discloses that he had paid $500 in a bastardy proceeding, and was the defendant in a breach of promise suit, and that prior to his purported marriage to Lucy he had occupied the same bed with her, all of which has little bearing upon the real issues in this case, except in so far as it may shed some light upon his intentions and gives us a general insight into his character and mode of living.
Since the claim of defendant in error must rest upon the evidence of the marriage according to the Osage Indian custom, or the agreement between the parties after the removal of the disability, we deem it necessary to set out in full herein his testimony upon that subject, which is as follows:
"Q. Sam, state to the court if there was any occasion when Lucy spoke to you about a team of horses.
"A. Well, she told me she would give me a team, and she said, `I will give you them team for you to work' — and Potter was driving the horses. And Potter came up and asked me what team he would take, and I told him any of them. So he drives up to the house, and my wife told me she didn't want Red to drive them; she wanted me to drive them. She said: `I gave you them horses for you to drive and work them,' and she said, `If you don't want to work them, just let them run out.'"
"Q. Now, was there any other occasion when she spoke about giving you some horses?
"A. Well, whenever we was going some place — I believe we was going to Slagle's — around through there some place; and Red was putting chains on the car; and we was out there and she came out and she said that `the reason I gave you that team, I want to live with you as long as I live.' She said, `I want you to live with me as man and wife as long as you live.' I said, `All right, we will live together as long as we live — together as man and wife.'
"Q. Did she say she wanted you to live with her as man and wife as long as you lived?
"A. As long as she lived.
"Q. As long as she lived?
"A. And as long as I live.
"Q. She said that was the reason she gave you that team of horses? *Page 178
"A. Yes, sir.
"Q. Well, did she ask you whether you would?
"A. She said, `Won't you?' and I said `Yes, I will live with you as long as you live.' * * *
"Q. Well, do you remember, while you were all at the supper table, of a conversation with Lucy about the Osage way of marrying?
"A. Well, she told them that — at the table — she was talking to this old lady, this grandmother of the niece; she was talking to her; she said that the old custom — that the old Osage Tribe — that when they got married they gave one another stuff. That is what she said.
"Q. Did she say anything to you at that time?
"A. Well, she didn't say. She was talking there to the folks, there, and I was there.
"Q. Did she say anything about the horses she had given you, at that time?
"A. Well, she said, `I gave Sam this team of horses,' and she said, `We are going to live together as man and wife as long as we live.' * * *
"Q. Sam, you testified on yesterday respecting two conversations that were held with Lucy. One out at the automobile and one at the supper table. You remember the circumstances do you of those two talks?
"A. Yes, sir.
"Q. Now, when Lucy said to you at that time that she wanted you to live with her as man and wife as long as you lived and you answered that you would?
"A. Yes, sir.
"Q. That was because you thought you were already man and wife under the Kansas City marriage, didn't you?
"A. Well, she told me that we would live as man and wife as long as we lived. I just said `all right.'
"Q. Well, answer my question; that was because you thought you had already been married under the Kansas City marriage wasn't it, that you were already man and wife?
"A. I know we was married in Kansas City.
"Q. And that is the reason you said — that wasn't the reason you said all right?
"A. Well, I don't know any difference, only I told her `all right; I would live with her all right after she had told me that.
"Q. Because you had been married in Kansas City.
"A. Well, that is the only marriage I know, yes.
"Q. Well, that is the reason you said that, wasn't it?
"A. I told her that I would live with her when she told me that.
"Q. Well, that is the reason you told her that, because you had been married in Kansas City?
"A. The reason I told her that was because she said we will live as man and wife all our lives.
"Q. Because you had been married in Kansas City.
"A. No sir, because she told me that at that place.
"Q. You knew at that time that you had been married in Kansas City.
"A. Yes, I knew it.
"Q. And you thought that marriage was a valid marriage at that time.
"A. Well, I said that, of course.
"Q. Answer my question.
"A. Yes, I know we had been married in Kansas City.
"Q. You thought at that time that it was a valid marriage.
"A. Well, I said because she asked me that."
The case of defendant in error can be no stronger than his own testimony makes it, and based upon the above testimony we cannot in good conscience find that a so-called common-law marriage existed between these people. It appears that Lucy was only a half-blood Osage, and that Samuel was enrolled as a Cherokee, and it also appears from the record that they were not living in the Osage Nation any of the time testified about. It also appears that these people, although Indians, were people of intelligence and not of the ignorant "blanket" variety. Neither does it appear that, although Lucy had been married twice before, she ever had indulged in any of the luxuries of a marriage ceremony according to the custom of the Osages.
We are, therefore, driven to the conclusion that these people went to the state of Missouri and consummated this bigamous marriage for the sole and only purpose of evading the consequences of the penal statutes of this state. In this enlightened age we see no good reason and but little excuse to encourage the so-called common-law marriage. If these people had in good faith desired to live together as husband and wife after the removal of the disability, there was nothing to prevent them from procuring a marriage license and being united in marriage *Page 179 according to the methods prescribed by the laws of the state, failing in which, according to the decisions of this court heretofore rendered, the bigamous relations continued down to the date of the death of decedent. It is not our desire to disturb the previous opinions of this court recognizing so-called common-law marriages, but this court has not heretofore held that a mere continuation of a bigamous relation after the removal of the disability ripens into the sacred relation of husband and wife. We conceive it to be the duty of the courts to interpret and administer the laws of the state as they find them, and while some courts of other jurisdictions have gone far enough to declare the mere continuation of a bigamous marriage, after the removal of the disability, to be a common-law marriage, we are of the opinion that such reasoning is calculated to encourage licentiousness and furnish an excuse for every libertine who may desire to satiate his lustful thirst in an adulterous relation, for saying, when confronted with the consequences of his act, that his status constitutes a common-law marriage, and thus evade the penalty of the law. All good citizens will agree that the very foundation stone of the American republic is the happy American home. The home can perform its full mission and develop into full fruition only when existing according to, by virtue of, and under the provisions of the laws of the commonwealth governing the sacred relation of husband and wife. To say that a marriage conceived in bigamy, brought forth in adultery, and continued feloniously by its mere continuation ripens into the sacred and holy relation of husband and wife, the most sacred relation known to human beings, is going further than the writer of this opinion is willing to go. We therefore think the judgment of the district court of Craig county should be reversed and the case remanded, with instructions to render judgment in conformity to the views herein expressed.
MASON and HUNT, JJ., concur.