Eagleson v. McKee

33 Ohio Law. Abs. 33, 19 Ohio Op. 362, 1939 Ohio Misc. LEXIS 850
CourtOhio Probate Court of Franklin County
DecidedNovember 18, 1939
DocketNo. 81535
StatusPublished
Cited by1 cases

This text of 33 Ohio Law. Abs. 33 (Eagleson v. McKee) is published on Counsel Stack Legal Research, covering Ohio Probate Court of Franklin County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Eagleson v. McKee, 33 Ohio Law. Abs. 33, 19 Ohio Op. 362, 1939 Ohio Misc. LEXIS 850 (Ohio Super. Ct. 1939).

Opinion

OPINION

By McClelland, j.

This matter comes on for hearing on the Petition to Determine Heirship filed by the administrator de bonis non, the answer and cross petition of William S. McKee, and the evidence adduced in support of the allegations of the pleadings.

The plaintiff in his petition alleges that he is the duly appointed and qualified administrator de bonis non with the will annexed of the Estate of Marie McKee, who died testate on the 7th day of November, 1937; that said decedent left a will which was admitted to probate by this Court on the 1st day of December 1937. The petition further alleges that Marie McKee died owning certain real estate therein described. The plaintiff further alleges that the application to admit the will [34]*34to probate contains a representation that William S. McKee is the surviving spouse of Marie McKee and that Pauline Newiand, Millvale, Pennsylvania, Marie Burkhart, Millvale, Pennsylvania, and Louisa Gloeckner, Mill-vale, Pennsylvania, defendants are the only known heirs and next of kin or devisees and legatees of said decedent entitled to share in the distribution of said estate; that there are no other parties known to plaintiff claiming a share in the distribution in said estate.

The plaintiff further alleges that William S. McKee elected to take under the statute of descent and distribution, and prays that the Court determine the persons who are entitled to share in the estate, and the respective shares therein.

To this petition William S. McKee has filed an answer in which he admits the truthfulness of the allegations of the petition. The said William S. McKee alleges that he is the surviving spouse of Marie McKee, and that he and Marie Dietz were married in the City of Columbus, Ohio, on August 17, 1919; and that on said date they entéred into an agreement and contract of marriage; and that then and there the said Marie Dietz and William S. McKee became wife and husband, and from that day they continued to live as husband and wife until the death of said Marie McKee; and that William S. McKee, the surviving spouse - provided all the necessary furniture and equipment to establish said home between August 1919 and November 1937, and that by their joint efforts they purchased the real and personal property described in the petition.

He further alleges that he has elected to take under the' statutes of descent and distribution, and not under the provisions of the last will and testament, and that by virtue thereof, he is entitled to receive one-third of the net estate, in addition to the statutory exemption of twenty per-cent thereof, as provided by §10509-54 GC, and that said exemption amounts to the sum of $1041.70, and that he is entitled as said surviving spouse to remain in the mansion house for one year free of rent.

The cross-petitioner asks that the court find that there was a valid contract of marriage, that he elected to take under the statute of descent and distribution, and that he is entitled to participate in the estate of Ma¿:ie McKee as surviving spouse.

At the trial of this case, which consumed a portion of several days, William S. McKee was offered as a witness. Counsel for the daughters of Mrs. McKee objected to the testimony of Mr. McKee, alleging that he was incompetent as a witness by virtue of the provisions of §11495 GC. This question has caused this court a considerable degree of difficulty, and it seems that if the statute were strictly enforced, Mr. McKee would be an incompetent witness. But, upon an examination of the cases in which the validity of a common law marriage was in question, the alleged surviving spouse was permitted to testify. Without going into a discussion of the various authorities cited, we will simply announce our conclusion, and that is this court feels that the alleged surviving spouse is competent to testify as to all facts supporting the various elements necessary to constitute a valid common law marriage. The marriage relationship is not presumed as a matter of law, but it must be proven, and, until it is proven, it is our opinion that the surviving spouse is not precluded from testifying by virtue of the above named statute.

We therefore hold that Mr. McKee was a competent witness to testify as to all facts tending to support his contention that a valid common law marriage was consummated between the parties.

We now come to the question as to whether or not a valid common law marriage was consummated between the parties. We must first consider the degree of proof which is necessary in order to sustain the contention of a common law marriage,

“So it would seem that marriage rests on contract, and the state recognizes it as a civil contract, and it may be [35]*35proved by competent parol proof and circumstances when the degree of proof is clear and satisfactory to the court or jury.”

Umbenhower, by Etc. et v Labus, by etc. et, 85 Oh St p. 238.

The latest pronouncement by the Supreme Court of Ohio relative to the degree of proof required to sustain a common law marriage, is found in Re Estate of Redman; Hiland, Appellee v The State of Ohio, Appellant, reported in 135 Oh St p. 558, in which the Court fuses the following language:

“So-called common-law marriage contravenes public policy and should not be accorded any favor; indeed, it is quite generally condemned. It is well settled in Ohio that- to establish a common-law marriage, all the essential elements of such a relationship must be shown by clear and convincing evidence. The statutes of Ohio contain definite regulations and requirements and prescribe rigid standards to which applicamts for marriage license must conform. While these statutory provisions do not of themselves specifically prohibit marriage without the formalities enumerated by those provisions, such informal marriages are seldom recognized and are held valid by courts only to protect the rights of innocent persons. In the Umbenhower case, supra, the legitimacy of a child was involved and was an important factor in the decision of that case. Even in such cases, the essential elements of such marriage must be established by the degree of proof stated.”

It therefore becomes apparent that the latest pronouncement by the Supreme Court relative to the degree of proof is the most strict one and of course is the one by which this court is bound when we come to consider the weight of the testimony, and we therefore hold that in order to sustain the contention of the cross-petitioner that a valid common law marriage was consummated between the parties, the degree of proof must be such that is clear and convincing to the mind of this court.

It is a well established principle of law that in order to sustain a common law marriage, there must be proof of an explicit contract, either in writing or in parol. It must be a contract of marriage at the time of the contract and not a promise in the future. A contract of marriage must be followed by cohabitation as husband and wife, and, in addition thereto, there must be a holding out to the public by both parties that they are husband and wife.

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Bluebook (online)
33 Ohio Law. Abs. 33, 19 Ohio Op. 362, 1939 Ohio Misc. LEXIS 850, Counsel Stack Legal Research, https://law.counselstack.com/opinion/eagleson-v-mckee-ohprobctfrankli-1939.