12781, Lefkoff v. Sicro
| Docket Number | 12771,12781. |
| Decision Date | 05 December 1939 |
| Citation | 6 S.E.2d 687,189 Ga. 554 |
| Parties | LEFKOFF v. SICRO et al. SICROet al. v. LEFKOFF. |
| Court | Georgia Supreme Court |
Judgment Adhered to After Rehearing Dec. 18, 1939. [Copyrighted Material Omitted]
Syllabus by the Court.
1. The question presented in cases where there is an issue of marriage vel non is, did the parties, capable under the law of contracting a valid marriage, in good faith voluntarily enter into a contract mutually consenting to be man and wife with the intention of thereby and thereupon assuming that relationship. Upon the trial of an issue of marriage vel non, where there was a conflict in the evidence as to the fact and extent of open and public cohabitation, and where an actual contract of marriage was claimed, it was error to charge the jury that there could be no common-law marriage if either or both of the parties concealed from the public generally such claimed relation of husband and wife.
2. For reasons stated in the opinion the court did not err in refusing request to charge the jury 'that marriage is a civil contract and is consummated by the consent of the parties freely and voluntarily given, and the bare fact of its being clandestine and being entered into and solemnized without out the usual requisite to give it publicity does not ipso facto render it void.'
3. A request to charge, which, though it state a correct statement of law, is in the slightest degree argumentative, is properly refused. Accordingly, while this court may have correctly said, in an opinion discussing a case involving an issue of marriage vel non, that 'marriage is favored by the law; concubinage is odious; when a man and woman are living together as husband and wife, the law will hold them to be such even against strong probability that they are not,' it was not error to refuse a request to charge containing such a statement. See Hunt v. Pollard, 55 Ga.App. 423, 190 S.E. 71, and cit.
4. While it is true that where parties live together as man and wife the presumption arises, in the absence of direct evidence, that they at some time mutually consented to be man and wife, it would not be correct to state to the jury that 'this presumption would arise even against strong probability that they are not.' The jury should be left free to determine whether in such case the inference of the existence of an agreement between the parties to be man and wife should be drawn, and should not be instructed in effect that they should presume that such an agreement existed, even though the evidence should indicate that such was not in fact the truth of the case. A request to charge embodying the quoted statement was properly refused.
5. Refusal of a request to instruct the jury that 'when a marriage has been regularly solemnized and the parties lived together as man and wife, there is a presumption that the parties had capacity to contract the marriage and the existence of all other facts necessary to render the marriage valid,' was not erroneous. The request was not adjusted to the evidence, since there was no proof that the marriage between the plaintiff and the deceased was 'regularly solemnized.' On the other hand the plaintiff testified that they merely agreed to be man and wife.
6. A request to charge which is argumentative, states no principle of law, and is not adjusted to the evidence, is properly refused.
7. A ground of a motion for new trial, complaining of a refusal to permit a witness for plaintiff to answer a question on direct examination, but not stating what answer was expected of the witness, and that the judge was informed thereof, is so defective as to present no question for decision by this court.
8. Refusal of a witness to answer a question eliciting irrelevant testimony on cross-examination by counsel for the plaintiff presents no ground for suppression of the witness' depositions offered on behalf of the defendant.
9. While a court of equity will not ordinarily interfere with the regular administration of estates, it will do so upon the application of one interested in the estate, where there is danger of loss or other injury to such interest, and where the applicant has not a full and adequate remedy at law. It being necessary for the plaintiff to establish that she was the lawful wife of the deceased, and it appearing that the estate is being wasted and that there is danger of loss and injury to her interest, it is clear that a court of equity can more adequately and completely protect her rights than could a court of law.
a. Equity has jurisdiction to set aside a judgment granting letters of administration, where such judgment was obtained by fraud. The judge properly overruled the general demurrer to the petition.
10. Good pleading requires only that the plaintiff plainly and concisely state the material ultimate facts upon which she depends for recovery. As a general rule, the evidentiary facts upon which the plaintiff relies to prove the ultimate facts need not and should not be set forth in the pleadings. Brown v. Georgia Cotton Growers' Co-Op Ass'n, 164 Ga. 712, 139 S.E. 417; Boney v. Cheshire, 147 Ga. 30, 92 S.E. 636; Woodruff v. Hughes, 2 Ga.App. 361, 58 S.E. 551; Hunter v. Lissner, 1 Ga.App. 1, 58 S.E. 54.
11. The allegations that the plaintiff and the deceased were married were not subject to demurrer, as being a mere conclusion of the pleader. Brown v. Parks, 169 Ga. 712(3), 151 S.E. 340, 71 A.L.R. 271.
12. The allegation that for many years the deceased 'maintained petitioner as his wife by providing for her food, clothing, shelter, and the necessities of life, including medical attention,' was not subject to demurrer on the ground that it was not alleged what and by whom the clothing, food, etc., were furnished.
13. The allegation that deceased introduced plaintiff as his wife, was not subject to demurrer on the ground that it was not alleged when, where, and to whom deceased so introduced plaintiff.
14. The allegation that in July, 1925, the deceased took the petitioner to a hotel in Miami, Florida, and spent a week there, registering for himself and petitioner as man and wife, was not subject to demurrer for failure to allege the name of the hotel and the names under which such registration was made. Nor was it subject to demurrer for uncertainty or indefiniteness.
15. The petition was not subject to demurrer on the ground that it was not alleged under what names plaintiff and deceased used or were known at the various addresses at which they were alleged to have lived, since it was expressly alleged that they lived together, cohabited and consorted as man and wife. Nor was such allegation subject to demurrer as being a mere conclusion of the pleader.
16. The amendment to the petition was not subject to demurrer on the ground that it set up a new and distinct cause of action, in that in the petition the plaintiff sought relief because of danger of loss and injury to her interest in the estate of the deceased as his surviving widow, and in the amendment she sought relief because of danger of loss and injury to the interest of creditors also. The allegation with reference to creditors may be treated as surplusage.
17. The grounds of special demurrer were without merit.
18. The motion to dismiss the writ of error, on the ground that one of the parties defendant was not served with the bill of exceptions, is denied. A defendant who is not served in the trial court, and does not appear and plead or otherwise waive process, is not a necessary party defendant to a bill of exceptions taken by the plaintiff, and need not be served therewith. Hines v. McLellan, 117 Ga. 845(2), 45 S.E. 279; Greenwood v. Greenblatt, 173 Ga. 551(2 b), 161 S.E. 135; Richter v. Macon Gas Co., 144 Ga. 650, 87 S.E. 895; Webb & Martin, Inc., v. Anderson-McGriff Hardware Co., 188 Ga. 291, 3 S.E.2d 882.
Claude E. Moore and Cecil V. Whiddon, both of Atlanta, for plaintiff in error.
A. S. Grove, of Atlanta, for defendants in error.
The plaintiff, styling herself as Mrs. Essie Harris Lefkoff brought a petition in equity against Perle L. Sicro, individually and as administratrix of the estate of Mike Lefkoff, deceased, Ethel Lefkoff Friedman, Wolfe L. Lefkoff, Louis R. Lefkoff, Sara Lefkoff, Rebecca Lefkoff Lefkowitz, Stephen Lefkoff, Charles Lefkoff, and Ida Lefkoff, and made substantially the following case: Petitioner became the wife of Mike Lefkoff in the year 1925, and was so related to him at the time of his death in September, 1936. 'Mike Lefkoff * * * agreed to and with petitioner in 1925 * * * that petitioner and said Mike Lefkoff would enter into and bear the relationship, each to the other, respectively, of wife and husband, and * * * said relationship continued between petitioner and said Mike Lefkoff until' his death. Due to the difference in religious beliefs of petitioner and Mike Lefkoff, they agreed that their marriage would not be a ceremonial one, but that their marriage would be celebrated by living together as man and wife. Deceased had been very ill prior to his marriage to petitioner, and when thereafter she became ill, fearing that she had contracted tuberculosis from him, he took her 'and spent a week in Miami with petitioner at a hotel, * * * registering for himself and petitioner as man and wife.' This was in July, 1925. At the expiration of this week the deceased instructed her to remain in Florida until she regained her health, which she did for a period of nine months. Deceased gave petitioner $500 at that time, and gave her another $500 on a visit made to her thereafter during said nine months. In April, 1926, she returned to Atlanta, and they lived at various addresses as man and wife, until the date of his death. During all of this time...
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