Brawley v. Thomas

Decision Date18 December 1947
PartiesBRAWLEY v. THOMAS et al.
CourtOhio Court of Appeals

Syllabus by the Court

1. In a proceeding for determination of heirship. Section 10509-95 et seq., General Code, the petitioner is not entitled to a jury trial.

2. In such a proceeding, where the petitioner claims to be the common-law wife of the decedent and the adverse parties defend as heirs and administrator of the estate of decedent the petitioner is incompetent to testify, over objection, as to facts tending to establish the alleged common-law marriage.

Woolley Rowland & Bridgewater of Athens, and Fogle & Fogle, of Mariett, for appellant.

Jones & Williams and Foster B. Cornwell, all of Athens, for appellees.


This appeal on questions of law arises out of a proceeding in the Probate Court of Athens county, for the determination of heirship in the estate of Ted H. Wolf, deceased, therein being administered.

The plaintiff, appellant herein, Mable Brawley, filed her petition in that court, captioned 'Petition to determine heirship,' under and by virtue of Section 10509-95 et seq., General Code, against F. L. Thomas, administrator of the estate of Ted H. Wolf, deceased, and others, alleging that at the time of the death of the decedent he was the lawful husband of the plaintiff, and that she is his surviving spouse and sole heir at law.

The petition sets forth the inventoried value of the real and personal property in the estate, the appointment of the administrator, the names of the next of kin as given in the application for the appointment, which next of kin as therein set out are made parties defendant with the statement that they claim interests in the real and personal property by reason thereof.

The prayer of the petition is that the court determine the person or persons entitled to share in the distribution of the estate, the interest therein by them owned and their respective share or shares therein, and for such other orders and relief in the premises as the court may find plaintiff to be entitled.

The defendants answered, admitting the formal allegations of the petition, but denying generally that the plaintiff is the surviving spouse and sole heir at law of the decedent.

On the issue as thus joined, trial was had in the Probate Court resulting in a finding and judgment that plaintiff and decedent were not married, either at common law or otherwise; that plaintiff is not the widow of decedent; and the heirs at law and next of kin of the decedent are the defendants, Christine Wemmer, Hershel Wolf, Nora Coon and Kathryn Allen. The court thereupon proceeded in the judgment to fix the proportions of the estate to which the parties defendants are entitled.

The only question before the trial court was whether the plaintiff, Mable Brawley, was the common-law wife of Ted H. Wolf, the decedent, at the time of his death on September 11, 1945.

While all the assignments of error have been carefully examined, and the voluminous record has been read with the same in mind, it will be necessary in this opinion to discuss only the ones on which the merits of the appeal depend.

In May 1936, plaintiff, an unmarried woman, went to live in the home of the decedent, an unmarried man, who was then living with his father, a widower, and a bachelor brother in a farm home in Ames township, Athens county. The father died in September of 1937, and the brother deceased a short time thereafter.

Plaintiff continued to live with decedent, Ted H. Wolf, in the farm home until January 1944, when they moved to the village of Amesville in Athens county and both resided in the home of the decedent for a few months when this property was sold by decedent. He then moved into a small house by himself and the plaintiff went to live first in the home of her father and then in what is known as the Morris home. This situation existed with the exception of visits back and forth until decedent's death.

There will be no attempt here to set forth the testimony and evidence offered. There were over 100 witnesses examined in the trial of this case. The testimony of some of the witnesses for plaintiff substantiates in part the necessary elements of a common-law marriage. Many of the defense witnesses testified that plaintiff and the decedent did not have the reputation of being husband and wife in the community where they lived; others testified that the plaintiff was known as the decedent's housekeeper; and still others testified as to admissions of the plaintiff that she was not the decedent's wife but his housekeeper. The record indicates that during all the time plaintiff was in decedent's home she retained and used her name of Mable Brawley. This is evidenced by defendants' documentary exhibits 'E' and 'I,' one the bank account of plaintiff and the other the hospital admission card at the time of her hospitalization. The decedent in his business transactions failed to recognize plaintiff as his wife as evidenced by defendants' exhibit 'A,' it being a deed for real property executed by decedent as an 'unmarried man.'

While this court readily agrees with counsel for plaintiff that if, as contended by plaintiff, a few days after she entered the Wolf home she and the decedent entered into a common-law marriage, complying with all the necessary elements therefor, then neither nor both could thereafter abrogate or nullify the same before death other than according to law, yet in determining the relationship existing between these parties during all of these years this documentary evidence carries great weight and in the absence of a satisfactory explanation therefor it is most conclusive. Especially is this true in reference to defendants' exhibit 'G' which, because of its importance in view of the whole record and the contention of the defense in this case, we quote:

'Settlement for labor.

'Amesville, Ohio. July 24, 1944.

'Ted H. Wolf is hereby paying Mabel Brawley the sum of seven hundred eighty dollars ($780), the receipt of which is acknowledged by Mabel Brawley, for settlement in full for services rendered for labor to this date, July 24, 1944.
'F. L. Thomas
'Ted H. Wolf
'Mable Brawley'

That exhibit corroborates many of the witnesses who testified that the relationship of plaintiff to the decedent in the community and circle in which they moved was that of housekeeper. Whether any other relationship that may have existed was the honorable institution of marriage, even though by common-law method, the plaintiff was called upon to prove by clear and convincing evidence.

The law which the trial court was called upon to apply to the facts in this case is found reaffirmed in Markley v. Hudson, 143 Ohio St. 163, 54 N.E.2d 304, the syllabus of which is:

'1. An agreement to marry in praesenti, made by parties competent to contract, accompanied and followed by cohabitation, as husband and wife, with the result that they are treated and reputed as husband and wife in the community in which they reside, constitutes a common-law marriage.

'2. While such agreement to marry in praesenti must be proved by clear and convincing evidence, it may be established by proof of the acts, declarations and conduct of the parties and their recognized status in the community in which they reside.'

In applying this rule, the following admonition set forth in the case of In re Estate of Redman, 135 Ohio St. 554, 558, 21 N.E.2d 659, 661, should be kept in mind:

'So-called common-law marriage contravenes public policy and should not be accorded any favor; indeed, it is quite generally condemned. It is well settled in Ohio that to establish a common-law marriage, all the essential elements of such a relationship must be shown by clear and convincing evidence. The statutes of Ohio contain definite regulations and requirements and prescribe rigid standards to which applicants for marriage license must conform. While these statutory provisions do not of themselves specifically prohibit marriage without the formalities enumerated by those provisions, such informal marriages are seldom recognized and are held valid by courts only to protect the rights of innocent persons.'

When the evidence in the instant case is analyzed, under the rules hereinabove set forth, it cannot be said that the plaintiff established a common-law marriage with the decedent by clear and convincing evidence. Therefore, if no error intervened prejudicial to the plaintiff, the trial court was correct in its finding and judgment.

In addition to the weight, sufficiency and admissibility of the evidence, it is earnestly contended by the plaintiff that the trial court committed prejudicial error, first, in denying plaintiff the right of trial by jury and second, in refusing plaintiff the right to testify to facts establishing her common-law marriage with decedent.

Early in this case, and before trial, plaintiff filed a written request for a trial by jury which was denied by the trial court and exceptions saved. Counsel for plaintiff are frank in stating that they have been unable to find conclusive authority one way or the other touching on this claimed error. Neither have counsel for the defendants been able to discover any authoritative pronouncement thereon. All counsel, however, have endeavored to aid this court by giving it the benefit of their reasoning from certain definite premises, which is appreciated. It is plaintiff's contention that she by her petition sought an order determining her right to decedent's property, basing the same upon her claim that she is decedent's surviving spouse; that the trial court adjudicated and determined the aliquot ownership of the parties to this action in the property of the...

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  • Brawley v. Thomas
    • United States
    • Ohio Court of Appeals
    • December 18, 1947
    ...82 Ohio App. 40081 N.E.2d 719BRAWLEYv.THOMAS et al.Court of Appeals of Ohio, Fourth District, Athens County.Dec. 18, [81 N.E.2d 720]Syllabus by the Court 1. In a proceeding for determination of heirship. Section 10509-95 et seq., General Code, the petitioner is not entitled to a jury trial.......

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