Allen's Estate, In re, 49820

• Decision Date: 15 December 1959
• Docket Number: No. 49820,49820
• Citation: 100 N.W.2d 10,251 Iowa 177
• Parties: In the Matter of the ESTATE of Marie Wolfinger ALLEN, Deceased. Katherine Phillips ALTMAN and Charlotte Phillips Hirchak, Appellants, v. Andrew B. ALLEN and A. L. Wensel, Appellees.
• Court: Iowa Supreme Court

Page 10

100 N.W.2d 10

251 Iowa 177

In the Matter of the ESTATE of Marie Wolfinger ALLEN, Deceased.

Katherine Phillips ALTMAN and Charlotte Phillips Hirchak, Appellants, v. Andrew B. ALLEN and A. L. Wensel, Appellees.

No. 49820.

Supreme Court of Iowa.

Dec. 15, 1959.

Cross, Hamill & Selby, Newton, and Abramson & Myers, Des Moines, for appellants.

Leo J. Lucier, Des Moines, for appellees.

OLIVER, Justice.

The question in this case is whether appellee Andrew B. Allen was the common-law husband of Marie Wolfinger Allen who died in Des Moines, Polk County, Iowa, February 27, 1958. Upon Allen's petition, as her widower, he was appointed administrator of her estate and appellee A. L. Wensel was appointed attorney. March 6, 1958, Mrs. Katherine Phillips Altman and Mrs. Charlotte Phillips Hirchak, nieces and heirs at law of decedent, made application for the removal of Allen as administrator and Wensel as attorney, on the ground Allen was not the surviving spouse of decedent. Trial to the court resulted in an adjudication Allen was decedent's common-law husband. Hence, the application for his removal as administrator and that of Wensel as his attorney was denied. Decedent's nieces have appealed. Wensel's right to appointment as attorney is not here important and, for convenience, Allen will be referred to as appellee.

This being a proceeding in probate the findings of fact by the trial court have the effect of the verdict of a jury. Therefore, our review of the judgment will be limited to determining whether it has substantial support in the evidence properly admitted and to alleged errors in procedure.

I. One such error assigned is: over objection that he was an incompetent witness, under the dead man statute, section 622.4, Code of Iowa 1958, I.C.A., appellee was permitted to testify: 'Q. What is your understanding as to the relationship with her (decedent) since June 20, 1955? A. I felt that I was married to her.'

The overruling of the objection was not erroneous. In re Estate of Boyington, 157 Iowa 467, 475, 137 N.W. 949, 952, states: 'The purpose and intention of Boyington in his relations with Miss Pond was of the greatest importance as bearing on the fact of a marriage. No doubt as a witness he would have been incompetent to testify to any transactions or communications with the deceased amounting to a mutual agreement to marry, but he was not incompetent to testify as to his own purposes and intentions and the circumstances under which their cohabitation was begun and continued, * * *.'

In re Estate of Wittick, 164 Iowa 485, 489, 490, 145 N.W. 913, 915, quotes the foregoing statement with approval and states also: 'She also testified, and this we think was competent as bearing upon her intent, that from that time on she considered herself to be his wife, and that the formal ceremony should be performed when they could go to the proper church. While much of this testimony is incompetent as being of conversations with the deceased, that to which we have just referred, with other evidence, sheds light upon the intent with which she entered upon and sustained the relations with Wittick which are shown by the evidence.'

II. Appellants contend also the question asked appellee was objectionable because it called for his opinion and legal conclusion. This contention is without merit. Whenever the belief, intent or motive of a witness is material he may testify directly thereto. Halligan v. Lone Tree Farmers Exchange, 230 Iowa 1277, 1286, 300 N.W. 551, 556; Williams v. Stroh Plumbing & Elec., Inc., 250 Iowa ----, 94 N.W.2d 750, 753, 754; In re Maurer's Estate, 199 Iowa 899, 901, 201 N.W. 327; 32 C.J.S. Evidence § 510a.

III. The record shows decedent operated the Lloyd Hotel in Des Moines from 1943 until her death. Her first husband, Mr. Wolfinger, died in 1930. In 1936 she contracted a common-law marriage with Mr. Steele. He died in 1952. Thereafter she corresponded with appellee who was then in California. Correspondence from him apparently kept by her, shows his friendship and, subsequently, his affection for her. In March, 1955, at her request appellee returned to Des Moines. He was confined in a hospital in Des Moines, for some time, returned to Lloyd Hotel and from June 20, 1955, openly cohabited with decedent there. This is the date fixed in his testimony from which he felt he was married to her. Soon they took a trip together, registering as husband and wife. Many witnesses testified each of them introduced or referred to the other as his or her spouse, that their conduct was that of a married couple and they were generally so regarded. This continued until her death.

Further reference to such evidence is unnecessary because appellants concede 'there is evidence in this case from which it can be said that Allen and decedent cohabited and were known as husband and wife.'

But appellants contend a common-law marriage may not be established without proof there was a present agreement between the parties to take each other as husband and wife, and that such agreement may not be presumed or inferred from their acts and conduct. In support of this contention they refer to statements in various decisions of this court which they contend require the conclusion the absence of direct proof of such agreement is a fatal defect.

We do not disagree with the cited decisions nor with the statements therein as applied to those respective situations but we do disagree with appellants' contention direct proof is necessary to establish such an agreement. Moreover, none of the cases relied upon by appellants, is here directly in point, because, in the case at bar death and the dead man statute had sealed the lips of the parties to the agreement and apparently there was no available evidence of its terms. In re Estate of Wittick, 164 Iowa 485, 145 N.W. 913, is here in point in that one spouse was dead and the survivor incompetent under the statute, to testify to the agreement. There the only competent direct evidence bearing upon the terms of the agreement was the testimony of the survivor, (substantially the same as in the case at bar) 'that from that time on she considered herself to be his wife.' In holding the evidence established a common-law marriage the court quoted with approval from In re Estate of Boyington, 157 Iowa 467, 137 N.W. 949: '* * * the fundamental question is whether their minds have met in mutual consent to the status of marriage which will be sufficiently established if it appears that they have lived together, intending thereby to be husband and wife.'

In re Estate of Stopps, 244 Iowa 931, 934, 57 N.W.2d 221, 222, refers with approval to the Wittick case, stating: '* * * there was a full discussion of the facts required to prove the common-law marriage status, and a holding that they had been so proven.'

Appellants state the Michigan courts have followed the rule that the marriage contract must be established by direct evidence. In re Kachula's Estate, 324 Mich. 725, 37 N.W.2d 574, 576, in which there was no direct evidence of the agreement of the parties, adjudged a common-law marriage had been proven, stating: 'The continuing constancy and maintenance of the honestly intended relationship of husband and wife during a period of seven years is evidence of the existence of a present agreement.'

The text in 35 Am.Jur., Marriage, section 207, states:

'The general rule unquestionably is that circumstantial evidence is always competent, and may be sufficient, proof of marriage. Proof of marriage by cohabitation and reputation is a form of circumstantial proof. Where there is direct evidence readily available, such evidence should be used, but there is authority for the rule that circumstantial evidence may be relied on although direct evidence is readily available. Nevertheless, if available direct evidence is not used, but circumstantial evidence is relied on, such fact militates strongly against the party offering it.'

In 35 Am.Jur., Marriage, section 220, at page 327, it is stated:

'* * * The...