Beacher's Estate, In re

• Decision Date: 17 August 1965
• Docket Number: No. 65-88,65-88
• Citation: 177 So.2d 838
• Parties: In re ESTATE of Leo Charles BEACHER, a/k/a Leo Charles Baecher, deceased. Alice Louise BEACHER, Appellant, v. Emily BAECHER, Appellee.
• Court: Florida District Court of Appeals

Page 838

177 So.2d 838

In re ESTATE of Leo Charles BEACHER, a/k/a Leo Charles Baecher, deceased.

Alice Louise BEACHER, Appellant, v. Emily BAECHER, Appellee.

No. 65-88.

District Court of Appeal of Florida, Third District.

Aug. 17, 1965.

Rehearing Denied Sept. 13, 1965.

Harry. J. Chadderton and Joe N. Unger, Miami, for appellant.

Charles A. Gould, Jr., Miami, for appellee.

Before HENDRY, C. J., and CARROLL and SWANN, JJ.

CARROLL, Judge.

This is an appeal from an order of the county judge's court in Dade County vacating appointment of a (widow) administratrix upon upholding a challenge to the existence of a common law marriage.

The appellant Alice Louise Beacher and Leo Charles Beacher were married in 1940. He purchased a home in Dade County in which they resided until the time of his death. The wife filed suit for divorce in 1949, during the pendency of which the parties continued to reside in the home. After the wife had submitted proof before a special master, and while the cause was assumed by the parties to be still pending, they effected a reconciliation and resumed cohabitation. The wife then contacted her attorney for the purpose of having the divorce proceeding terminated because of the reconciliation, but was informed the court already had entered a decree of divorce and restored her former name of Davis. However, the parties having reconciled at or about the time the decree was entered, continued to live together as man and wife for another fifteen years.

Beacher died in 1964, and the respondent was appointed administratrix on the theory that she was his widow as the result of a common law marriage. Thereafter his sister, the appellee Emily Baecher, ¹ petitioned the court to vacate the appointment. As grounds she alleged entry of the divorce decree of November 17, 1949, that there was no record of a remarriage and 'that to the best of her knowledge and belief no such marriage has taken place and that the said Alice Louise Beacher is not the lawful widow next of kin and heir at law of said decedent.'

Hearing thereon resulted in the order appealed from, which contained certain findings as follows:

'* * * [T]he Court finds after due consideration that the decedent and Alice Louise Beacher were divorced by final decree of the Circuit Court of the Eleventh Judicial Circuit in and for Dade County, Florida, dated November 17, 1949, Chancery Case No. 123270; that there was no ceremonial remarriage of the parties after said divorce and the evidence and testimony before the Court fails to sustain the existence of the common law marriage between the parties subsequent to said divorce and said decree of divorce appearing regular on its face and not having been challenged as to its validity in any respect; that the said Alice Louise Beacher is not the legal widow and heir at law of the decedent herein; that Petitioner Emily Baecher, is the surviving sister and only heir at law of the decedent; * * *'

The order then vacated the appointment of the respondent as administratrix and appointed the petitioner.

Here the appellant contends (1) that the trial court placed the burden of proof relating to common law marriage on the wrong party, and (2) that the decision was contrary to the evidence. We find merit in both contentions, and reverse.

The record reveals that the county judge proceeded on the erroneous theory that the burden of proof was on the person claiming the common law marriage rather than on the party asserting its illegality. ² In so holding, the able county judge was in error. 'No rule of law is better settled than that which requires that he who asserts the illegality of a marriage must assume the burden of proving his assertion.' Le Blanc v. Yawn, 99 Fla. 328, 126 So. 789. And see Lambrose v. Topham, Fla.1952, 55 So.2d 557; In re Colson's Estate, Fla.1954, 72 So.2d 57, 59.

In Lambrose v. Topham, supra, the same two questions were presented. In that case, upon noting that the lower court had mistakenly failed to place the burden of proof on the party asserting illegality, the Supreme Court said: 'The County Judge applied an erroneous rule of law with reference to the burden of proof * * *.' Commenting further the court said:

'It is well established in this state that the person who asserts the illegality of a marriage must assume the burden of proof of the assertion. Le Blanc v. Yawn, 99 Fla. 328, 126 So. 789. From the language contained in the order of the County Judge it is apparent that he considered the burden of proof on the appellant to establish her marriage to the deceased.

'It is true that the appellant was required to establish a prima facie common law marriage. This was done by the uncontradicted testimony not only of the appellant but by more than a dozen witnesses living in the community. The burden then shifted to the appellees. In Hooper v. Stokes, 107 Fla. 607, 145 So. 855, 857, 146 So. 668, this Court held: '[W]here the probate judge misapprehended the legal effect of the evidence as an entirety, his findings should not be sustained merely because there is evidence that is contradicted on which the findings may be predicated.' See also to the same effect In re Thompson's Estate, 145 Fla. 42, 199 So. 352.'

Turning to a consideration of the second question presented, we conclude that the county judge was in error in holding that existence of the common law marriage was not established.

The respondent's testimony disclosed that the parties had lived in the same house and occupled the same bedroom for some 23 years, 15 of which were after the divorce decree was entered. Respondent produced a number of witness whose testimony disclosed repute that the parties were living together as man and wife. Such testimony spanned the entire period of time involved. One of those witnesses, who had resided for a time with the Beachers in 1958-1959 and who knew of the 1949 divorce decree, testified the Beachers occupied the same bedroom, and that several times the deceased was heard to make reference to the respondent as his wife.

The evidence presented by the respondent adequately showed the elements of capacity, cohabitation and public recognition. In addition, it established the essential element of an agreement per verba de presenti. ³ While the evidence which respondent present may have lacked positive statements as to words of agreement exchanged between the parties, it reveraled that they reconciled and resumed cohabitation at or about the time of the entry of the divorce decree. In the similar case of Navarro, Inc. v. Baker, Fla.1951, 54 So.2d 59, a reunion under such circumstances, considered together with the testimony of subsequent cohabitation and repute, was held to be sufficient proof of the element of agreement, necessary in order to establish a common law marriage. In Navarro, Inc. v. Baker, supra, as in the instant case, the parties 'went back together again,' upon effecting a reconciliation at or about the time of the entry of a divorce decree in a suit filed by one of them. On the authority of that case, with other elements proved, the reconciliation 'at or about the time of the entry of the divorce decree' fulfilled the requirement for an agreement as an element of common law marriage. There the Supreme Court said (54 So.2d at 59):

'There was abundant evidence to show the elements of capacity, cohabitation and public recognition, but the appellants cast doubt on the establishment of any agreement per verba de present. When the circumstances of their reunion are considered together with the testimony of their subsequent cohabitation and repute, Le Blanc v. Yawn, 99 Fla. 328, 126 So. 789; McClish v. Rankin, 153 Fla. 324, 14 So.2d 714, we find no error in the conclusion that this component was also proved.'

A reconciliation necessarily involves or implies mutual assent to resume married life together. 1 Nelson, Divorce § 11.14 (2d ed. 1945). Here the undisputed testimony shows the parties reconciled when they thought the divorce, which had just been entered, was still pending. Under the circumstances, whether the divorce decree was actually filed just before or just after their reconciliation is not conclusive or even material. Navarro, Inc. v. Baker, supra. See, to like effect Tryling v. Tryling, 245 Ky. 399, 53 S.W.2d 725, 728.

Against this strong prima facie proof of a common law marriage, the evidence offered by petitioner to show illegality of the marriage was patently insufficient. Petitioner presented her testimony and that of two witnesses. One was respondent's lawyer, who was examined as to a request he had made of petitioner to sign a consent to the appointment of respondent as administratrix. From that, petitioner would have the court infer the lawyer felt respondent was not entitled to appointment as the widow. But, as pointed out on behalf of respondent, it would be as reasonable to assume the request was made to avoid the trouble, expense and delay which would be occasioned by a contest over the existence of the common law marriage, such as did develop.

Petitioner's own testimony was lacking in material bearing on the question of existence of a common law marriage. It revealed that although petitioner had lived in the Miami area for some twelve or thirteen years before her brother died, she was never in his home, and was with the parties together on one occasion. Petitioner had a shop down town, where Beacher frequently visited her. He usually did so on Sundays when he would do carpentering and odd jobs fixing up the place. The other witness presented by petitioner was a woman friend who related statements made in her presence by Beacher on an occasion in 1960 when she attended a Sunday dinner with Beacher and the petitioner at the latter's place. She testified that Beacher complimented petitioner on the meal and said he had to do his own cooking and that his 'ex' would not do anything for him; and that he said he was divorced and not living...