238 So.2d 290 (Fla. 1970), 39343, In re Yohn's Estate

CourtUnited States State Supreme Court of Florida
Writing for the CourtAuthor: Adkins
Citation238 So.2d 290
PartiesIn re ESTATE of Carl Sylvester YOHN, Deceased.
Date29 July 1970
Docket Number39343.

Page 290

238 So.2d 290 (Fla. 1970)

In re ESTATE of Carl Sylvester YOHN, Deceased.

No. 39343.

Supreme Court of Florida.

July 29, 1970

Page 291

Donald H. Partington, of Harrell, Wiltshire, Bozeman, Clark and Stone, Pensacola, for petitioner.

John M. Coe, of Coe & Coe, Pensacola, for respondent.

ADKINS, Justice.

By petition for certiorari, we have for review a decision of the District Court of Appeal, First District (In Re Estate of Yohn, 229 So.2d 612), which allegedly conflicts with a prior decision of this Court (Roberts v. Roberts, 124 Fla. 116, 167 So. 808) on the same point of law. Fla.Const., art. V, § 4, F.S.A.

The question is whether the first wife, Myrtle Paul Yohn, or the second wife, Margaret Fillingim Yohn, is the lawful widow of Carl S. Yohn.

Carl Yohn married his first wife in Mississippi during the year 1955. A child, Jack Bert Yohn, was born in 1956. Carl, a resident of Pensacola, Escambia County, Florida, had been in the service and upon his discharge visited his mother in Chicago. In 1957, the first wife, apparently without cause, left him and went to the west coast of the United States, taking the child with her. She had no further contact with her husband during his lifetime.

Page 292

Carl Yohn lived in Chicago during 1957 and 1958 and obtained employment there. However, he considered his home as being in Pensacola, Florida. His general occupation was that of a seaman and he was sometimes employed on a dredge boat or a tug boat. The record shows that he was employed for some time in Biloxi, Mississippi.

In 1961, Carl Yohn filed a complaint in Escambia County, Florida, seeking a divorce from his first wife. He made the required allegation that he was unable to ascertain the residence of his first wife after diligent search and inquiry and secured service by publication. A decree pro confesso was entered July 21, 1961. This action was subsequently dismissed on May 11, 1964 for want of prosecution.

In 1965, Carl Yohn stated he was 'as free as the breeze' and that he was not a married man. On January 17, 1966, he applied for a marriage license and stated under oath that he had previously been married once and was divorced. On this date he married his second wife.

Carl died on June 19, 1967, and letters of administration were issued by the County Judge of Escambia County, Florida, to the second wife.

A petition was then filed by Jack Bert Yohn, a minor, by his grandmother as next friend. It was alleged that he was the son of the decedent, having been born of the marriage between the decedent and Myrtle Paul. It appeared from the petition that the principal asset of the estate consisted of a claim for damages arising from the wrongful death of the decedent, for the recovery of which an action had been instituted by the administratrix and was then pending in Alabama, the state wherein Carl Yohn died. The petition suggested that the second wife may not be the lawful widow of the decedent and prayed that the Court inquire into the question of whether the second wife administratrix was the lawful wife of the decedent at the time of his death.

Both the first wife and the second wife appeared at the hearings before the County Judge, each asserting her status as the lawful wife of the decedent. At the hearings before the County Judge, the ceremonial marriage to the first wife was attacked because Myrtle Paul, the first wife, had previously entered into a common-law marriage with James Johnson. The evidence pertaining to this question is discussed in the opinion of the District Court of Appeal.

The County Judge held that the second wife was the lawful widow. In a separate order, Jackie Yohn was adjudged to be an heir of the deceased. The latter order is not contested.

On appeal, the District Court held there was a fatal deficiency in the evidence which precluded a judicial determination that a common-law marriage was contracted and entered into by the first wife Myrtle and James Johnson. The Court then said:

'This being so, Myrtle Paul possessed the legal capacity to contract a ceremonial marriage with the decedent in 1955. Since there was a sufficient showing that this marriage was not legally dissolved prior to the decedent's death in 1967, it must be held that as of that time Myrtle Paul was the lawful wife of the decedent and is now the widow entitled to share in the assets of his estate, if any assets there be.' (Emphasis supplied.) 229 So.2d 612, 616.

In discussing the testimony of the first wife, Myrtle Paul, the District Court of Appeal observed:

'She testified that at no time subsequent to her marriage to decedent did she secure a divorce from him, nor did she have any knowledge of any divorce having been secured by him against her. The evidence adduced by petitioner established that there was no record of a divorce having been granted decedent against Myrtle in either the Court of Record or Circuit Court of Escambia

Page 293

County where he lived subsequent to their separation. A certificate by the Bureau of Vital Statistics of the State Board of Health of Florida discloses no record in that office of any divorce having been secured by the decedent against his first wife. Myrtle testified that she had never remarried subsequent to her marriage with decedent, and insisted that she was his widow at the time of his death.' (p. 614)

In Roberts v. Roberts, Supra, this Court enunciated the standards concerning the burden or quantum of proof where conflict in marriages are involved, saying:

'(W)hat degree of proof is necessary to overcome the presumption in favor of the validity of the second marriage? We do not think complainant, as contended by appellee, is required to go in every county in Florida, Alabama, Mississippi, and Louisiana, and show that no divorce has been secured in any of the counties of these states; but if she shows the counties that William Roberts lived in during the thirty years that elapsed from his desertion of Laura Cheval Roberts to his marriage to Lucille Roberts and that no divorce was issued in any of these counties And that he had no ground on which to seek a divorce, the presumption in favor of the validity of the second marriage will be overcome.' (Emphasis supplied.) (167 So. pp. 809--810)

The District Court of Appeal in its opinion in the case Sub judice relied upon Quinn v. Miles, 124 So.2d 883 (Fla.App.1st, 1960), where the Court said:

'It has been repeatedly held that if the records of the State Bureau of Vital Statistics fail to disclose any divorce by the decedent against his wife during the period of their separation, such evidence will be sufficient proof that no such divorce was ever procured, and likewise sufficient to rebut the presumption of validity attaching to the subsequent marriage of decedent.' (p. 886)

In Quinn v. Miles, Supra, the husband apparently had no grounds for divorce and resided in the State of Florida during all of his life.

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