DeWitte's Estate, In re, 20553

Decision Date27 December 1966
Docket NumberNo. 2,No. 20553,20553,2
Citation222 N.E.2d 285,140 Ind.App. 114
PartiesIn the Matter of the ESTATE of Joseph DeWITTE, Deceased. Petition of Nellie DeWITTE for Determination of Heirship. Alice Marie SWIFT and Albert DeWitte, Co-Personal Representatives of the Estate of Joseph DeWitte, Deceased, appellants, v. Nellie DeWITTE, Appellee
CourtIndiana Appellate Court

Thomas P. Loughlin, William T. Means, Donald R. Myers, Mishawaka, for appellants.

Schindler, Van Tilbury & Kramer, F. Richard Kramer, Mishawaka, for appellee.

BIERLY, Judge.

This cause comes to us following an adjudication by the trial court upon the appellee's

petition, filed on June 24, 1963, to determine heirship in the estate proceedings of Joseph De Witte, deceased. Said petition is as follows:




NO. 2 that Joseph D. DeWitte died on the 5th




'Nellie DeWitte, being first duly sworn upon her oath deposes and says:

'Your petitioner respectfully represents that Joseph D. DeWitt died on the 5th day of June, 1963, a resident of St. Joseph County, State of Indiana;

'That administration upon the estate of the deceased Joseph D. DeWitte is being had in this cause and in this court;

'That your petitioner is interested in the estate of the said Joseph D. DeWitte, deceasec, by reason of being the surviving wife of the said Joseph D. DeWitte;

'That said decedent died intestate;

'That your petitioner is informed and verily believes that the names of all of the heirs of the said Joseph D. DeWitte, deceased, and the degrees of their relationship to decedent are as follows:

'1. Nellie DeWitte, the petitioner herein, surviving wife.

'2. Alice Marie Swift, surviving adult daughter.

'3. Albert DeWitte, surviving adult son.

'That it is necessary and advisable that a determination of heirship be had at this time for the reason that in the proceedings of administration of the estate of the said Joseph D. DeWitte and being particularly the petition for the appointment of the Co-Personal Representatives, the name of this affiant and listing her as the surviving wife was omitted and circumstances since the death of the said joseph D. DeWitte would appear to indicate that an attempt will be made to not recognize this affiant as the surviving wife and one of the heirs at law of the deceased Joseph D. DeWitte.

'WHEREFORE, petitioner prays for an order of Court determining the heirs of the said Joseph D. DeWitte, deceased.

'(signed)_ _

Nellie DeWitte

'Subscribed and sworn to before me this 24 day of June, 1963.

'(Signed) _ _

Leo Van Tilbury, Notary Public

'My Commission expires: September 13, 1964.'

The trial court found for the appellee, entering judgment thereon, on November 12, 1965; thus, finding that appellee was Joseph DeWitte's common-law wife. Said order is as follows:



'This cause came on to be heard on the petition of Nellie De Witte for determination of heirship with respect to the decedent herein; and the interested parties being represented by counsel and properly before the court, and, the court having heard and considered the evidence adduced by the parties, now finds that the decedent was survived by his widow, Nellie DeWitte, the petitioner herein, a daughter, Alice Marie Swift, and, a son, Albert De Witte.

'IT IS THEREFORE ORDERED, CONSIDERED, AND ADJUDGED that the decedent herein was survived by his widow Nellie DeWitte, a daughter, Alice Marie Swift and a son Joseph DeWitte, and that these persons are entitled to share in his estate pursuant to the laws of the State of Indiana.

'IT IS FURTHER ORDERED AND DECREED that the temporary injunction heretofore entered on the 16th day of October 1964, enjoining the said Nellie DeWitte from disposing of the follow-described real estate in St. Joseph County, Indiana, to-wit:

'Lots Numbered Forty-five (45) and Forty-six (46) in Milburn Place Addition to the City of Mishawaka

or the personal property located therein, be and the same is hereby dissolved.

'Dated this 12 day of November, 1965.

'(Ct. Seal)


'Judge, St. Joseph Superior Court'

The appellants' sole assignment of error is that the trial court erred in overruling their motion for a new trial. Contained within said motion are the following specifications:

'1. The decision of the Court is not sustained by sufficient evidence;

'2. The decision of the Court is contrary to law;

'3. The Court erred in overruling the Defendant's motion for a judgment at the close of the petitioner's evidence.'

The motion of appellants for judgment at the close of the appellee's evidence reads as follows:

'At this time I believe the respondent will move for judgment against the Petitioner on the ground that although there is a mixup of evidence here, and we have a bank account that is in the name of Nellie Lewis or Joseph De Witte, and we have Deeds that indicate a relationsjip of husband and wife, and the Petitioner has related certain conversations, by her own admission while she was sitting here and very competently answering all these questions, did she indicate that she was not in fact the commonlaw wife of the decedent; she indicated she did not think she was entitled to any of his social security. She got it from her first husband; got some from her own job, in the name of Nellie Lewis; that everything that she says here really points to a pleasant companionship and what really is a working agreement with Joseph De Witte, but not basically a husband and wife type of arrangement, and there is no contract of marriage.'

Appellants' motion was overruled, and they then proceeded to present their case.

The body of case law governing commonlaw marriages in Indiana is extensive. An examination of these cases discloses the gradual emergence of a progressive attitude by the courts in laying down more and more stringent legal requirements when validating common-law marriages. The ultimate effect of this progressive attitude of the court and the disfavor of public opinion led to the abolition of common-law marriages in this state. 1

The leading case in Indiana concerning common-law marriages is the case of Anderson v. Anderson, (1956), 235 Ind. 113, 131 N.E.2d 301. Among other rules found in the Anderson case, supra, we note the following:

'A contract by words in the present tense, or per verba de praesenti as the books express it, to be married or to be husband and wife, to comply with the well settled law on the subject must, of necessity, be an express contract, although it need not be in writing, and need not be in any particular words. It cannot be an implied contract, such as the law raises in the case of quasi contracts or in actions of assumpsit. An express contract can only be created by an offer and acceptance There must be words to create an offer although the acceptance can be made by either words, or acts, according to the terms of the offer. * * * Cohabitation, reputation, or other conduct may corroborate evidence that there was a contract, or in the absence of testimony by one of the parties as to what the agreement was, if any, it might, in a strong case, be sufficient to draw the inference that there was a contract to marry in the present tense, but the contract must be formed by what was said and done by the parties, and when the testimony of the party asserting and relying upon the contract discloses there was no language in the present tense constituting a contract to marry, then cohabitation, reputation and other conduct cannot constitute words which were never spoken or used.

'Even where there is evidence of an oral contract not witnessed, our courts have made additional requirements to establish the validity of a common-law marriage. 'But where the contract between the parties is oral but not witnessed, even though followed by cohabitation, an additional factor is necessary to establish a common-law marriage. Under such circumstances there must be a holding out by the parties of their marriage status to at least such part of the public in their community in which they live as is made up of their acquaintances, neighbors and relatives.' Schilling v. Parsons, Admr., 1941, 110 Ind.App. 52, 58, 36 N.E.2d 958, 960. See also In Re Lambert's Estate, 1945, 116 Ind.App. 293, 302, 62 N.E.2d 871. (Our Emphasis.)

'* * * Cohabitation, reputation, tax returns, insurance provisions, and the birth of a child do not constitute a contract of marriage per verba de praesenti.'

Judge Emmert, in the case of Anderson v. Anderson, supra, in referring to the complaint and certain testimony, said at page 123, 131 N.E.2d at page 306:

'The complaint in this case did not allege that there was any contract of marriage per verba de praesenti, 3 and the evidence when viewed in favor of the appellee, with all reasonable inferences that could be drawn therefrom, fails to show such a contract. Moreover, the testimony of the appellee herself, who would be presumed to state the case as favorably as she could to maintain the alleged marriage, affirmatively proved there never was a contract in the present tense to be married. In fact, her testimony merely corroborated that of the 2 appellant, who in substance testified the reason he never would agree to marry her was that she had been married in Birmingham and never divorced, that she went there to get a divorce and came back and told him she had obtained a divorce, which he did not believe since she had only been in Birmingham three days, and he was smart enough to know she could not get a divorce in three days.'

Judge Emmert later stated in the opinion that;

'This record affirmatively discloses there was no contract of common-law marriage.'

The next major decision in the area of common-law marriages was the case of In ...

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3 cases
  • Dallman's Estate, In re
    • United States
    • Iowa Supreme Court
    • April 16, 1975
    ...301 Ky. 636, 192 S.W.2d 741, 743--744 (1945). In other words, there can be no secret common-law marriage. See In re Estate of DeWitte, 140 Ind.App. 114, 222 N.E.2d 285, 288 (1966). See also Anderson v. Anderson, 235 Ind. 113, 131 N.E.2d 301, 305--306 (1956); In re Dittman's Estate, 124 Ind.......
  • Azimow v. Azimow, 468A61
    • United States
    • Indiana Appellate Court
    • March 3, 1970
    ... ...         This court in Estate of Dittman v. Biesenbach, Adm'r., etc. (1953), 124 Ind.App. 198, at pages 209--210, 115 N.E.2d ... ...
  • Parrish's Estate, In re, 572A244
    • United States
    • Indiana Appellate Court
    • March 1, 1973
    ...v. Sutherland, supra, and its predecessors, with respect to establishment of a common law marriage was met. DeWitte v. DeWitte (1966), 140 Ind.App. 114, 222 N.E.2d 285. The DeWitte case analyzes the Sutherland and Anderson opinions in relation to facts strikingly similar to those before the......

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