Le Blanc v. Yawn

• Decision Date: 13 February 1930
• Parties: LE BLANC et al. v. YAWN.
• Court: Florida Supreme Court

126 So. 789

99 Fla. 328

LE BLANC et al. v. YAWN.

Florida Supreme Court

February 13, 1930

En Banc.

Partition suit by Gladys Le Blanc and others, minors, by J. E. Trice their next friend, against Mary A. Yawn, and others. From an adverse decree, complainants appeal.

Reversed.

ELLIS J., dissenting.

Syllabus by the Court

SYLLABUS

Common-law rule that neither party nor any person interested in subject-matter of suit is competent to testify was modified by statute (Comp. Gen. Laws 1927, § 4372). By the common law neither party to a suit (nor any person interested in the subject-matter thereof, as to his interest) was competent to testify. Section 2705, Revised General Statutes of Florida was designed to enlarge the common-law rule, except as to transactions or communications between the parties interested and persons deceased and others enumerated in the statute.

General repute and cohabitation will establish common-law marriage if impossible to establish it by testimony of contracting parties or witnesses of mutual agreement. A common-law marriage may be established by what is termed habit or repute, if it is not possible to establish it by the testimony of the contracting parties or those present when they mutually agreed to take each other as man and wife.

Person asserting illegality of marriage has burden of proving assertion. 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. Some of the courts enforce this rule even to the extent of proving a negative.

That parties to common-law marriage discussed ceremonial marriage held not inconsistent with prior common-law marriage, and did not overcome presumption thereof; proof of continued cohabitation as husband and wife after dissolution of husband's prior marriage held sufficient to support presumption of common-law marriage arising from cohabitation. The mere fact that a ceremonial marriage was discussed between parties to a common-law marriage is not inconsistent with the prior common-law marriage of the said parties, nor does it overcome the presumption thereof arising from proof of the common-law marriage.

Ceremony is not essential to validity of marriage, absent statutory requirement. In the absence of statutory requirement, a ceremony is not essential to the validity of a marriage.

Validity of common-law marriage is recognized in Florida. We recognize the validity of a common-law marriage in this state.

Appeal from Circuit Court, Leon County; E. C. Love, Judge.

COUNSEL

Fred H. Davis and C. L. Waller, both of Tallahassee, for appellants.

Jos. A. Edmondson and W. B. Myers, both of Tallahassee, for appellees.

OPINION

TERRELL C.J.

Samuel W. Le Blanc died intestate in 1925, seized and possessed of certain lands in Leon county, Fla. In April, 1926, appellants here, who were complainants below, filed their amended bill of complaint for partition of the lands so owned by said Samuel W. Le Blanc. A demurrer to the amended bill was overruled. Answer was filed, and on final hearing the amended bill of complaint was dismissed. Appeal is taken from the final decree.

Appellants Gladys Le Blanc, Ralph Le Blanc, and Roy Le Blanc are the children of Samuel Le Blanc by his putative common-law wife, Mattie Jacobs Le Blanc. Appellees Mary A. Yawn and Frank W. Le Blanc, are the children of Samuel W. Le Blanc by a former marriage. Mattie Jacobs Le Blanc, originally a party to the suit, died July 23, 1927, after the final hearing, but prior to the entry of the final decree in the cause.

The primary question presented here turns on the fact of whether or not Mattie Jacobs Le Blanc was the common-law wife of Samuel W. Le Blanc. Appellants take the affirmative of this issue while appellees take the negative.

It is first contended that the testimony of Mattie Jacobs Le Blanc, supporting her common-law marriage to Samuel W. Le Blanc, was incompetent and should have been excluded under section 2705, Revised General Statutes of Florida (section 4372, Compiled General Laws of Florida 1927).

By the common law neither party to a suit (nor any person interested in the subject-matter thereof, as to his interest) was competent to testify. Section 2705, Revised General Statutes of Florida, was designed to enlarge the common-law rule, except as to transactions or communications between the parties interested and persons deceased and others enumerated in the statute. In this case the testimony of Mattie Jacobs Le Blanc may be eliminated entirely, and there will remain sufficient testimony in the record to establish a common-law marriage between Samuel W. Le Blanc and the said Mattie Jacobs Le Blanc. The question of the competency of the testimony of Mattie Jacobs Le Blanc therefore becomes immaterial and may be left open.

A common-law marriage or marriage per verba de praesenti, as distinguished from a ceremonial marriage, may be proven in various ways. The best evidence of such a marriage would of course be the testimony of the contracting parties or those present when they mutually agreed to take each other as man and wife, but it may be established by what is termed habit or repute. In other words, proof of general repute and cohabitation as man and wife will support a presumption of marriage when the agreement is denied and cannot be proven by the best evidence. 18 R. C. L. 428 and 429.

To cohabit as man and wife means to live together, to have the same habitation, so that, where one lives, there will the other live also. It does not contemplate a mere sojourn visit, or living together for a time. Proof of general repute cannot be supported by hearsay. It must be established by positive proof that it was generally understood among the neighbors and acquaintances with whom the parties associate in their daily life that they are living together as man...