Succession of Rodgers

499 So. 2d 492
CourtLouisiana Court of Appeal
DecidedDecember 3, 1986
Docket18,181-CA, 18,182-CA
StatusPublished
Cited by4 cases

This text of 499 So. 2d 492 (Succession of Rodgers) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Succession of Rodgers, 499 So. 2d 492 (La. Ct. App. 1986).

Opinion

499 So.2d 492 (1986)

SUCCESSION OF William H. RODGERS. and
Martye Jean Rodgers STUART, et al., Appellants,
v.
Gracie Wheeler RODGERS, et al., Appellee.

Nos. 18,181-CA, 18,182-CA.

Court of Appeal of Louisiana, Second Circuit.

December 3, 1986.

*493 Hunter & Jack by Orie Hunter, III, Frances Baker Jack, Shreveport, for appellants.

Wallace & Southerland by James D. Southerland, Benton, Bodenheimer, Jones, Klotz & Simmons by F. John Reeks, Jr., Shreveport, for appellee.

Before JASPER E. JONES, SEXTON and LINDSAY, JJ.

LINDSAY, Judge.

Plaintiffs filed suit to annul a judgment of possession in the succession of their alleged grandfather and filed suit for an accounting from the defendants for all mineral production, revenues and royalties from the immovable property of the succession. The suits were consolidated for trial. The trial court found in favor of defendants and dismissed plaintiffs' claims. Plaintiffs appeal. For the following reasons we affirm the trial court judgment.

FACTS

On November 21, 1968, William H. Rodgers, Sr. died intestate in Bossier Parish survived by his wife, Gracie Wheeler Rodgers, and six children, Inez Rodgers Felknor, Myrtice A. Rodgers Williamson, Harold V. Rodgers, Mireace I. Rodgers Harville, Billy J. Rodgers Curry, and William H. Rodgers, Jr. William H. Rodgers, Sr. was predeceased by one son, Marvin John Rodgers, who died December 7, 1962. According to the pleadings, Crystal Oil Company obtained a lease on the immovable property left by William H. Rodgers, Sr., and on this property an oil well was completed and has been in production since March, 1984.

On June 21, 1984, the widow and surviving children of William H. Rodgers, Sr. obtained a judgment of possession in his succession. In their petition they alleged that Marvin John Rodgers was married but once and then to Hazel Ashday Rodgers and that no legitimate children were born of that marriage. Hazel Rodgers died May 27, 1962.

The plaintiffs, Martye Jean Rodgers Stuart and Marvin Janelle Rodgers Bentrup, filed suit against the heirs of William Rodgers, Sr. to annul the judgment of possession. Plaintiffs filed another suit against the Rodgers heirs and Crystal Oil Co. for an accounting for the production, revenues and royalties from the immovable property, claiming that Marvin John Rodgers was their father and that they were entitled by representation to be recognized as heirs of William H. Rodgers, Sr.

Exceptions of prematurity, prescription, no right of action, and vagueness were filed by the defendants. The exceptions were referred to the merits and the suits were consolidated for trial.

A joint stipulation of fact was entered into by the parties. The stipulation established the following facts: William H. Rodgers, Sr. and Gracie Wheeler Rodgers were married and had seven children. All those children survived William H. Rodgers, Sr., except Marvin John Rodgers who died in Texas on December 7, 1962. Marvin John Rodgers married Hazel Ashday Rodgers in 1951 and the marriage terminated upon her death on May 27, 1962. No children were born of this marriage. The plaintiff, Martye Jean Rodgers, was born in Louisiana March 31, 1961 and the other plaintiff, Marvin Janelle Rodgers, was born in Texas on February 8, 1963. The parties also stipulated that the plaintiffs' mother was Mary Evelyn Spillers.

Testimony at the trial revealed that Marvin John Rodgers ceased living with Hazel Rodgers sometime in the late 1950's. He then met the plaintiffs' mother, Mary Evelyn Spillers in Plain Dealing, Louisiana in 1958. Mary Evelyn Spillers testified that she and Marvin John Rodgers began living *494 together in Louisiana in 1959 and that in 1961 she and Marvin John had a daughter, Martye Jean. She also testified that later in 1961 she, Marvin and Martye Jean moved to Irving, Texas. In November, 1962 Marvin John bought a house in Euless, Texas. She testified that she and Marvin John, with their daughter Martye Jean, lived together in Texas as husband and wife and that she became pregnant with another child, Marvin Janelle Rodgers. On December 7, 1962 Marvin John died of a heart attack. Marvin Janelle was born two months after Marvin John's death.

In the trial court, plaintiffs did not seek to establish their filiation to Marvin John Rogers, but rather sought to establish that Marvin John Rodgers and Mary Evelyn Spillers entered into a common law marriage, valid under the law of Texas, and therefore the plaintiffs are the legitimate heirs of Marvin John Rodgers. Among the items of evidence sought to be introduced by plaintiffs at the trial was a funeral book containing the obituary of Marvin John Rodgers which was published in a local newspaper, listing as his survivors his wife and his daughter, Martye Jean, as well as stepchildren, who were the children of Mary Evelyn Spillers by a prior marriage. The trial court ruled that no proper foundation had been laid for the introduction of this newspaper article and found it to be inadmissible hearsay.

The defendants contended that no valid marriage existed between Marvin John and Mary and that no valid common law marriage existed under Texas law because Marvin John and Mary Evelyn Spillers did not live together continuously nor did they hold themselves out to the public to be husband and wife.

The trial court entered judgment in favor of the defendants, dismissing plaintiffs' claims. The court found that the plaintiffs were the natural children of Marvin John Rodgers but noted that the issue before the court was not proof of filiation, but proof that plaintiffs were the legitimate heirs of Marvin John Rodgers. The court stated that under the law of Texas, to prove a common law marriage, it must be shown by a preponderance of the evidence that the parties agreed to be husband and wife at a time when there was no impediment to their marriage, that they cohabitated as such, and that they held themselves out to the public to be husband and wife. The court found that prior to the death of Hazel Ashday Rodgers, the legal wife of Marvin John Rodgers, there could be no common law marriage. The court also found that even though Mary Evelyn Spillers and Marvin John Rodgers did cohabitate, the parties did not hold themselves out to the public to be husband and wife and therefore no common law marriage existed. The trial court entered judgment in favor of the defendants dismissing the plaintiff's claims.

On appeal plaintiffs contend that the trial court erred in failing to admit into evidence the newspaper article listing the survivors of Marvin John Rodgers. They also contend that the trial court erred in finding that no common law marriage existed between Mary Evelyn Spillers and Marvin John Rodgers.

ADMISSIBILITY OF NEWSPAPER ARTICLE

Plaintiffs assert the trial court erred in failing to admit into evidence a book from the funeral of Marvin John Rodgers containing a copy of his obituary which appeared in a local newspaper at the time of his death. An offer of proof was made and the funeral book and newspaper article were placed in the record. The article lists his survivors as his wife, a daughter, Martye Jean Rodgers, and four stepchildren. The trial court found the article was hearsay and that a proper foundation was not laid for its admissibility. The trial court reasoned that the plaintiffs were required to show who authored the article and, absent such a showing, a proper foundation for its admissibility had not been laid.

One of the oldest exceptions to the hearsay rule encompasses reputation and statements about family history and pedigree. McCormick on Evidence, 2d Ed.

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499 So. 2d 492, Counsel Stack Legal Research, https://law.counselstack.com/opinion/succession-of-rodgers-lactapp-1986.